MR STEENKAMP: May I just apologise for starting late, Mr Chairman, it's due to me speaking to some of the victims of the second matter, I do apologise.

CHAIRPERSON: The effect of that should speed up the beginning of the second matter. It's only counsel engaged in the first matter only who've had to wait. Right, we're ready to proceed. We're continuing now with the De Ru application for the purpose of addresses on the evidence of yesterday. It was indicated yesterday that if counsel wishes to supply written argument on any legal points that arise, they will be at liberty to do so.

MR MADASA: Thank you, Mr Chair. Mr Chair, I will just proceed making submissions orally, as indicated yesterday by Mr Chair, and if there is a need after I've made the submissions, then subsequent submissions could be done in writing to the Committee, if there are matters that the Committee feels they have been uncovered or as the matter may be.

CHAIRPERSON: The purpose of that's merely that if you feel there are matters that you want to check up on, as you indicated yesterday, you said there were certain matters, you're at liberty to do so and submit a written submission in regard to those, because certain matters arose yesterday which you may not have applied your mind to before.

MR MADASA: Thank you, Mr Chair.

Mr Chair, this is an application by the applicant, sorry, for amnesty relating to the killing of three persons, namely Makulu Solomon Khumalo, Richard Makhubo and Joseph Kabokoane, who were murdered on the 7th April 1992 near Sentra Hypersave, Vaal Park in Sasolburg.

The applicant gave evidence and admitted in his evidence that he was involved in the murder of these three persons.

CHAIRPERSON: Is this being recorded and coming through to the translators?

MR MADASA: Mr Chair, it clearly can be inferred from the evidence that was given by the applicant, that the applicant admitted to the murder of the three persons.

CHAIRPERSON: How can you say he admitted to murder when he said he only gave instructions for his people to shoot after they had been shot at, to safeguard the lives of the people under his command?

MR MADASA: Thank you, Mr Chair. My submission on this is based on the fact that in law the applicant may have, primarily have planned to arrest the persons, but the consequence of that plan clearly in law is prima facie murder, that is my submission, Mr Chair, in law that is prima facie murder and he could be charged for murder. The question whether he can be convicted or not, does not arise before this Committee, but there's sufficient basis in law, prima facie, from that evidence, to infer that he admitted to murder, because simply on the question, amongst others, of dolus eventualis, he foresaw the possibility of these people being killed, and he planned accordingly. That's if ...(intervention).

CHAIRPERSON: Are you saying that every time a policeman goes to arrest someone whom he knows to be armed and he foresees danger, and that person resists and he shoots him, that is murder?

MR MADASA: Mr Chair, I'm not saying every time, I'm saying in these circumstances, in accordance with this plan, I'm saying from that evidence it can be inferred that the applicant was reckless, having foreseen the possibility of resistance from the deceased, but he took no steps to ensure that that eventuality does not arise, and he reconciled himself with that eventuality by planning in such a manner that they would then kill if that case arose, and this is what happened.

Or alternatively, he could be charged on culpable homicide, and if he is so charged, then he's entitled to amnesty if his case is good.

I'm saying it could be inferred from his evidence that he admitted to culpable homicide, for example, which is a competent verdict to murder, and if he's granted amnesty on murder charge for example, he cannot be charged subsequently on the charge of culpable homicide on the similar facts. Therefore, if he's granted amnesty on the murder charges, he's as well exempted from being charged for culpable homicide, and the basis for saying that he could be charged for culpable homicide is clearly that a reasonable man, in the position of the applicant, ought to have taken necessary steps that would have been indicative that the gunfire only came from the car under the circumstances, and that only in that eventuality would they have opened fire on the occupants of the car, and the applicant did not, and secondly, a reasonable man in his position, having foreseen the possibility of fire triggered by some other source, other than by the occupants of the car, ought to have taken such steps to prevent the killing of occupants in that case, and applicant did not and was therefore negligent, it can be argued, and he admitted in his evidence, and it is trite that if a trap is flawed, as it seems to have been the case here, in law such a trap would be rejected.

Issues to be decided, Mr Chair, here are whether the applicant committed the offences as described him, and those offences whether they were associated with a political objective, and secondly whether he made a full disclosure.

Now I proceed to address that. The following facts are common cause: that the applicant was a member of SAP at the time, that is on the 7th April 1992, and was a captain in the Detective Branch, Sasolburg.

Secondly, that his immediate superior was Swanepoel, and that the applicant planned the arrest which resulted in subsequent killings of the deceaseds.

It is also common cause that the applicant ordered Fouche, his colleague, to infiltrate the deceaseds' group organisation or gang, with a view to trap them and arrest them on behalf of the State, of which he was an employee.

It's also common cause that on that day the deceased persons proceeded to Vaal Park Sentra Hypersave in a stolen yellow Cressida. They were armed, albeit with small arms, and were shot and killed by the applicant and his colleagues.

On the question of political objective, it is disputed by the leader of the investigation, on behalf of the families, that the deceased were members of a political organisation, and the Committee has to make a finding in this respect, and the applicant has stated that according to the information that he received, and his belief, based on that information, the deceased persons were members of a political organisation, namely ANC and MK.

Secondly, on the issue of political objective, the Committee must make a finding on whether, if it accepts that the deceased were members of a political organisation, whether the applicant had reason to believe that the deceaseds' conduct was associated with a political activity.

Thirdly, the Committee must also make a finding on this aspect as to whether the applicant's actions, which resulted in the commission of the killings, were associated with a political objective.

Now, on the question whether the deceased were members of a political organisation, the applicant, in his evidence, stated that he relied on information from three sources, namely Chris Fouche, Elsa de Lange and Joseph, one of the deceased persons. These people supplied him with information either collectively or at different instances or occasions.

The applicant's evidence has not been challenged by way of evidence, testimony before the Committee, except for some untested evidence by way of statements in the bundle, and that evidence remains untested by cross-examination.

Therefore, on that basis, the Committee is obliged to accept applicant's version.

CHAIRPERSON: Why do you say that? The Act provides for the Committee to make investigations, to conduct inquiries, and then to hear evidence. This is not a trial.

MR MADASA: Thank you, Mr Chair. Well, in the absence of any other evidence arising, then if the applicant's testimony stands alone, as it is at the moment, then I submit ...(intervention).

CHAIRPERSON: It must be weighed against the other investigation which has emerged as a result of investigations.

MR MADASA: Thank you, Mr Chair.

CHAIRPERSON: Don't you agree?

MR MADASA: Yes.

CHAIRPERSON: You do agree with that?

MR MADASA: Yes, Mr Chairman. I submit as well that if the applicant's version on the issue of these people being members of political organisation or MK, even after the Committee has made investigations, remains unchallenged, then the Committee must accept it, and I submit on this point that there is objective evidence to support his claim, namely on the second bundle which I referred to in evidence yesterday, on page 42, on that page the activities of deceaseds' unit or organisation in that article of the newspaper clearly explained or described, and those activities only relate to political activities, nothing else.

Besides that, there's also Fouche's statement on page 252 of the bundle, paragraph 4. Fouche is said to have told the applicant that the deceased talked about their political feelings, expressed their preference for an ANC government. Elsa confirmed the fact that the gang, or the organisation or unit, would attend rallies, political rallies, and were involved in fighting with IFP.

Elsa corroborated the applicant in this aspect in all material respects, namely that the deceased were MK ANC activities and underwent training, but she said, which appeared to be a discrepancy, which I submit it was not, her understanding of political activities were involvement in political violence, so to speak, bombings, murder and so on, and she was firm that her group did not involve in those, but then explained what they were involved in, but obviously the Committee knows that from what she admitted and denied it's one and the same thing, all these activities were political activities. Whether she was aware of that or not is irrelevant.

CHAIRPERSON: What activities do you say were political? Trying to make money out of selling or handing in weapons to the police, do you say that's a political activity?

MR MADASA: No, Mr Chair. She admitted that there was gun-running, that they were fighting the IFP, Inkatha, she admitted that ...(intervention).

CHAIRPERSON: She didn't admit that members of her group were doing that.

MR MADASA: She did, Mr Chair. She did, Mr Chair. It's a pity that I didn't make a note of her particular instance in her evidence, but she did make reference to that, and on your question to her, she admitted as well that she was trained to handle an AK, and in fact used it when Mr Fouche was present. Isn't that enough?

MR MALAN: Mr Madasa, did she not say that she only on one occasion fired two times, two shots, with an AK, and that was under the direction of Fouche shortly before the incident, that was the only occasion on which she ever fired a weapon?

MR MADASA: Thank you, Committee Member. In any case, my argument here, submission, is the following, that what we are looking at is the belief subjectively of the applicant, based on information that he received, and the information that he received, wrongly or correctly, is that these people were involved in political activities, and Fouche, in his statement on page 252, paragraph 5, alludes to that, and Elsa told the applicant the same, and then he believed that. Therefore he had a factual basis to believe that these were activists and he needed to act on them. That is all that the applicant has to show.

MR MALAN: Sorry, I missed that, Mr Madasa, will you repeat, what did she tell the applicant, what did Elsa de Lange ...(intervention).

MR MADASA: I say Elsa and Fouche gave information to the applicant as to the political activities of the unit or organisation in which she belonged, and on that basis she believed, I mean the applicant believed that they were therefore political activists.

CHAIRPERSON: But she repeatedly told us they were not political activists, didn't she, she said the only one who was a member of a party was Joseph, the others weren't, didn't she say that? 

MR MADASA: But, Mr Chair, I've addressed that. Obviously that witness is naive inasfar as politics were concerned.

CHAIRPERSON: Well when, if that is what she believed, what would she have told De Ru about political activities?

MR MADASA: She would have told De Ru what she did not believe were political activities, but which De Ru in fact that they were political activities.

MR MALAN: What was the evidence that she gave that you rely on, that she communicated to De Ru, I cannot recall that, can you refresh my mind?

MR MADASA: She said she met De Ru and spoke to him, and gave him information, but she did not expand on that, but De Ru gave evidence to say he received information from her in this regard, and from Fouche, and if you look at that page 252, Fouche specifically says:

CHAIRPERSON: She said in her evidence, she said, "I never reported to De Ru about my involvement. I don't know if Fouche gave him information", that was her evidence, and she's your witness.

MR MADASA: I say, Mr Chair, be that as it may, De Ru, in is evidence said ...(intervention).

CHAIRPERSON: "I did not tell De Ru I was a member of Umkhonto we Sizwe, I did not tell him anything, he never asked me", but you have now been relying on what she told De Ru.

MR MADASA: I'm not relying on that alone, I'm saying the applicant himself says he received information from her, and from Fouche, and even ...(intervention).

CHAIRPERSON: But who must we believe, her or the applicant? We have conflicting evidence here now.

CHAIRPERSON: But on that point, importantly, Mr Chair, is the fact that there's objective evidence to support this view that this person was involved in political activities. She may have denied it for her own purposes under oath, but the fact of the matter is, this is corroborated by objective evidence from (indistinct), first white woman in Sasolburg to join the ANC. She has admitted to that.

This person it appears from evidence that she was an informer, she worked for the police for ANC as well, she's got every reason to duck and dive on this aspect, but there's objective evidence to support this view.

CHAIRPERSON: What objective evidence? Fouche?

MR MADASA: (Indistinct) correctly.

CHAIRPERSON: So we accept also Fouche's evidence in the bundle that the applicant told him they would have to kill these people and that she must make them fire shots on the way to the scene, that is also evidence in the bundle from Fouche, do you say we must accept that?

MR MADASA: I'm not saying that.

CHAIRPERSON: Well you're picking and choosing. You must either say, "We accept it" ...(intervention).

MR MADASA: Mr Chair will be well aware that on the question of analysis of her evidence, that the Committee or a court would pick and choose, yes, but provided what it picks has corroboration, what it chooses, has corroboration, and I'm saying on this point, what I pick and choose there has corroboration, but that is how evidence is approached and analysed. You can't reject it because there are lies in evidence and reject it in total, and the evidence of the applicant has not been contradicted in evidence. We have bare denials from the family by way of questions by the leader of evidence, but the family members are here, they are here, they did not give evidence to refute what the applicant has said, and we don't have evidence as to whether the deceased person lived with their families and the duration thereof if they lived together, whether their families were aware of the deceaseds' movements, we don't have evidence to that. What we have is that it is denied, but I'm saying that is a bad denial, in the face of the applicant's insistence that the information he received was that they were members of a political organisation.

Now, on the question whether the shooting was connected with a political objective on the 7th of April 1992, now I submit that an important question to ask there on this aspect is whether the applicant was malicious in this plan, was he genuinely conducting his duties, or did he have an ulterior motive, was he malicious, I submit that is the question to be asked.

Now, I submit that he was not, he was doing his duties, an implied duty. At that time all members of the police, whether detective or security, the dichotomy between various duties of the police did not exist inasfar as political matters were concerned, it was not maintained by the State, it was there on paper, but any member of the police, it's a notorious fact that they would do their duties inasfar as political matters are concerned, irrespective of a unit. It would be artificial to argue that this man was involved in a crime investigation and that had nothing to do with security matters, that should have been handled by security matters. That did not exist. Even municipal police, traffic officers, were involved in arresting political activists, even members of the public, if they were so inclined.

Now, my submission is that the applicant, it was within his duty to plan and arrest, and if necessary kill the deceased. That is borne out by the statement made by General Malan in the bundle, even if that statement did not exist, this is a notorious fact, it's known by anybody in South Africa at the time, that activists had to be eliminated, because otherwise they would eliminate the State. That's how these matters were resolved.

Now, I submit that ...(intervention).

CHAIRPERSON: And for people to get amnesty for having eliminated them in the interests of the State, they have to come and tell us that.

MR MADASA: Yes, Mr Chair, I agree with that, and I submit that the applicant has told the Committee that he did this within his duty, he felt it was his duty to arrest these people and if necessary kill them, but I submit that he took precautionary measures before they went there to wait for the deceased, in that he gave orders, he planned, albeit the fact that the plan was somewhat clumsy, but he planned how they were going to arrest these people.

MR MALAN: Mr Madasa, did the applicant indeed say that he regarded it his duty to kill them if necessary, and that's what you quoted now? I cannot recall such evidence. I can vividly recall that he said he had no intention, no expectation even that they would be killed. Dolus eventualis didn't cross his mind. He said he believed on putting down the two shock grenades, that they would give themselves up.

MR MADASA: Mr Chair, I believe I've addressed this point at the beginning, and I stand by my submissions earlier on, that from his evidence it can be in fact that there was dolus eventualis. As to whether that was not the primary purpose, as stated by him, but from that evidence objectively, in fact even subjectively, it can be in fact that he had dolus eventualis, but that is as far as I can go on this aspect.

MR MALAN: Let me then take you to your point that you've been arguing now. Are you saying that he should be entitled to amnesty on the basis of it being his duty to eliminate, to kill, which you, in any event, construct on a basis of dolus eventualis, the inference from the evidence?

MR MADASA: Yes, I'm saying that's the inference from the evidence, that he was performing his duty to arrest these people, but then subsequently they were murdered, even though that was not his primary purpose, but from that evidence it can be inferred that he was doing his duty by killing them.

CHAIRPERSON: You have just said, "subsequently they were murdered", are you conceding that these people were murdered ...(intervention).

MR MADASA: This is ...(intervention).

CHAIRPERSON: ...(inaudible) contrary to your client's evidence?

MR MADASA: This is my submission, that from that evidence, this is a lay person inasfar as - this is a very technical issue, whether this could be perceived as murder or culpable homicide or other competent verdicts, but my submission is that in law it can be inferred and be seen as such prima facie.

CHAIRPERSON: So he committed no offence at all, you are saying now?

MR MADASA: I'm saying the opposite, I'm saying from that evidence he committed an offence.

CHAIRPERSON: But you're just saying in law it can be seen as this, so if in law it can be seen as the legal consequence of his attempted arrest, then he committed no offence.

MR MADASA: But in his evidence he admitted negligence, he definitely admitted negligence.

MR MALAN: Mr Madasa, but this remains my difficulty, how do you bring negligence to political motive and intent? Does not motive go with intent? That's really my question. Perhaps it's something for a written, legal argument.

MR MADASA: Yes, I submit ...(intervention).

MR MALAN: But that, sorry, that remains my basic difficulty, how do we get political motive to the killing? One can argue the political motive to the investigation, but anything subsequently happening, whether you construe it as negligence and therefore culpable homicide or whatever, would that qualify for amnesty in terms of the Act? I'd like you to cover that, if not now, then think it through and argue it for us in writing as soon as possible.

MR MADASA: Yes, Mr Chair, I think I'll do that in writing. I believe I've covered that, but if you still have a difficulty with that, we can submit it in writing. Personally I don't see any difficulty.

Continuing on the fact that the applicant was not malicious, he took precautionary measures and this does not detract from the fact that his conduct was criminal. All I'm arguing on this point was the fact that he was not doing this out of malice, he took measures to ensure that people were not killed unnecessarily, even if they were political activists, one was expected to arrest, or at least to attempt to arrest first, and this is what he did.

ADV SOGODI: Mr Madasa, sorry, what measures did he take to ensure that people are not killed?

MR MADASA: Various measures, amongst others, he organised what he referred to as top-up groups to close all the routes to that area where the shooting took place, he had shock grenades, he had a bug which was placed on Chris Fouche, he told Fouche to give a sign if these people were armed and if they were indeed going to rob, and he told him to leave the car alone and go around the corner, and ...(intervention).

ADV SOGODI: That's just the problem I'm having, because this (indistinct - mike not working).

MR MADASA: Yes. I'm saying he took these measures to ensure that the occupants of the vehicle were not unnecessarily killed. He was protecting them, because his plan was to arrest them, he was protecting the occupants of the vehicle by taking these precautionary measures, he wanted to ensure that they were arrested, that was the plan, but then if they did not give themselves up and if they fired at them first, then they would shoot at them. That's how the plan went. But you see I'm not saying the plan was good, but this is how he planned it.

CHAIRPERSON: Did he have anybody watching the car?

MR MADASA: No, he did not, and ...(intervention).

CHAIRPERSON: But surely that would be the most elementary precaution, to have someone watching the car who could tell him what was happening?

MR MADASA: I agree, Mr Chair, but these are the matters I referred to as flaws in this plan.

CHAIRPERSON: This is a basic flaw if he wanted to protect them, isn't it? It shows that there was no interest in obtaining information about what they were doing?

MR MADASA: Well that's not necessarily the conclusion, but it shows that he was not careful in his plan, I would submit. Therefore he was negligent. But an important aspect to see here, and this can be gleaned from his evidence and from Elsa's evidence, that one of the reasons that this plan didn't go according to the plan is the element of Chris Fouche, which the applicant referred to as own agenda. What seems to have happened here, and I say this especially on the strength of Elsa's evidence, that she says Fouche became involved in his own interests, for personal gain, and she referred to the matter of him being involved in smuggling and with a view to get money for divorce and to travel to South West Africa and the fact that, as far as she was concerned, this robbery was planned by the police, which is a possibility, if it was planned by Fouche without communicating that to the applicant. One can infer from this evidence that there's a possibility, a strong reasonable possibility that Fouche might have had internal problems with this group and may have led them to their demise.

MR MALAN: Mr Madasa, on this point, if, and I'm not sure that that possibility is not more than a possibility on the evidence before us, but if that is so, on what basis still, this remains the question, is it to be construed that the applicant had a political motive to kill? That's really the question that you must answer. The argument that you're putting before us now is clearly that he has been misled, that he had no such intention, that he did not plan their killing and that, therefore, on trial he should not be found guilty. Now if, because these are the exact arguments that I think would be argued in a trial, if he then is acquitted on trial, on what basis do we, on the same evidence, grant him amnesty now for a murder, assuming that he would or could be found guilty in trial?

MR MADASA: I have argued this matter. Once more I say it's on the basis of foreseeability, foreseeability that would be the basis, the foreseeability, even though the motive initially was - this is what happened when, for example, robbers go to a bank with a view to rob, only to rob, but you see they realise that there's a possibility, they foresee a possibility of resistance, and then they arm themselves, and then sometimes they kill and they are found guilty of killing, not because the motive was to kill, the motive was money, but part and parcel of that, in law, on the basis of public interest, so to speak, it has to be construed that murder was foreseen.

MR MALAN: No, but the difficulty in that example compared to the case before us is that in the case of the robbers going to rob a bank, arming themselves, foreseeing the possibility of resistance and conflict and a shootout, everything is part of a plan which is illegal or unlawful throughout. The case before us, on the argument, is that the applicant acted within the scope of his duties, within the law all throughout, and then suddenly something went wrong, people get shot, and now the lawfulness changes to an unlawfulness. So it's not comparable to the example that you're giving us.

MR MADASA: Mr Chair, really we seem to differ on this point, I view it strongly differently from how you see this, from analysis, because if, it doesn't matter the fact that this man was working for the State, the fact of the matter, that duty he was performing was unlawful in the manner he did by this plan, because I'm saying this plan ...(intervention).

MR MALAN: No, no, just a second, where was it unlawful? Wasn't it all lawful in terms of preventing a robbery, in terms of capturing these people for the purposes of investigation, isn't that all lawful?

MR MADASA: Provided the plan was good. The law says the plan must be good. If it leaks negligently, it's not acceptable, it's not a good trap and it's not lawful, it's not a lawful trap. The same happens in matters of being trapped in shebeen matters, these kind of cases, if the police go there and the trap is not good, even diamond matters when police conduct a trap, the law requires that that trap must be good. It is rejected if it's not good and certain precautional measures have to be taken, and in this case they were not taken, and therefore that act of being negligent in this plan, the plan not being watertight, that makes it unlawful.

CHAIRPERSON: Can I take you back for a minute? You said that Fouche may have planned this robbery? Did you say that Fouche may have planned this robbery? Who planned the robbery?

MR MADASA: I said, Mr Chair, according to Elsa, Fouche, the police, she did not say Fouche specifically, the police, it was a police plan.

CHAIRPERSON: Is the evidence of Mr De Ru not that Fouche told him about the robbery, told him when it was going to take place, showed him the vehicle they were going to use for the robbery, gave him all the details, to make quite sure the police would be able to prevent the robbery?

MR MADASA: Yes, that is ...(intervention).

CHAIRPERSON: So there can be no suggestion that Fouche was planning a robbery for his own benefit, because he took every possible step to ensure that it was not successful, didn't he?

MR MADASA: That could be the case, but he may have planned the death, even if he did not plan the robbery itself, he may have ...(intervention).

CHAIRPERSON: So he may have anticipated that De Ru would make faulty arrangements, would misconceive what was happening and would kill people, you're saying that he may have planned that? You can't suggest that, can you, he can only have planned the deaths if he knew that Mr De Ru intended to kill the people if they went there, then you can say he planned taking them there into the trap, which is precisely what he said he did.

MR MADASA: Mr Chair, Chris Fouche was the only link at that point between the police and the gang, and he knew what the plan was. Now, and he was in a suitable position, if he had an ulterior motive to cause the plan to falter, because he was the man on whom the police relied, specifically on the issue of the sign, whether the people were armed, whether they were indeed, let alone they have planned a robbery, whether indeed on that day they were going to rob, and that he should leave the car alone, not with Joseph. So I'm saying he was in a suitable position to cause it to falter, even if he had communicated to the police that indeed the robbery was planned, and this is what happened, this plan faltered in the applicant's version, it did not go according to the plan and I'm saying it can be in fact that Chris Fouche was the cause for that.

CHAIRPERSON: But you are now saying he must have anticipated that De Ru would lose his head and order his ten men to open fire, because there was no plan according to your applicant's version to kill these people, that was the last thing they planned, they were to arrest them, they were to avoid any loss of life, that was the plan that he knew of, wasn't it?

MR MADASA: No, Mr Chair, I'm not saying that.

CHAIRPERSON: Was that not what De Ru says the police plan was?

MR MADASA: Fouche was told about the whole plan. He was told that if these people fired from their car, then the police would then shoot the occupants. Now ...(intervention).

CHAIRPERSON: If they fired from their car, that was the crux of the matter?

MR MADASA: Yes, but this is the area really of the negligence, that in fact what happened, the fire did not come from the car, it did not come from the car, and the only reasonable conclusion, that it came from Fouche himself, when ...(intervention).

CHAIRPERSON: Who was round the corner of the building, some considerable distance away, if you look at the plans, and I must say I had difficulty in accepting that anybody can think that bullets came from, how many feet below them we're told, ten feet below them, when in fact the shots were round the corner of a building, some distance away.

MR MADASA: Mr Chair, with respect, if you could try and recall in detail around this aspect, the plan was not see if the gun sound came from the car. The plan was that if gunfire went off, it would be presumed that it came from the car, it would have been presumed that it came from the car, if they ...(intervention).

CHAIRPERSON: Oh come, come, if the gunshot went off half a mile away, it would not be presumed to come from the car. For your client to succeed on that version, he has to say, "I believed it came from the car".

MR MADASA: And Fouche was not miles away, he was around the corner, and if gunsound went off there and these people were in a state of anticipation, surely then it would have triggered off the fire?

MR MALAN: Mr Madasa, the construction that you're putting before us is the probability again of Fouche having planned the death of this gang, of the three male members of the gang. Why would the applicant, having had access to Elsa, who's with the gang, who has infiltrated the gang, Fouche, who has infiltrated the gang, on all accounts, Joseph that he has contact with, living with Elsa, why would they not have planned some other opportunity, where only two more members of the gang were present, unarmed, to be arrested and investigated? It's very, very difficult, on the basis of the facts, to accept that it would have been such an elaborate plan, assuming now the argument that Fouche indeed planned the killing, that the applicant would not have suggested a different plan, an easier one? Why should we not also deduce that the applicant was in on Fouche's plan?

MR MADASA: Firstly because he denies that. Secondly, because he trusted him, he says he trusted him, the information that he received from him.

MR MALAN: That, I accept both of your arguments, my question is really why would the applicant not have said to Fouche, "Do we really have to go through a robbery, why can't you bring in, I know Elsa, she comes to my office, I visit her at home, Joseph has been to me, we need the other two members, can't they all come and bring guns, so we can pay them for the guns and arrest them, detain them and investigate them?"

MR MADASA: The applicant stated on this point, I think he was asked, and he said he wanted to accumulate evidence and arrest these guys on robbery, amongst other things, because this was, what was foremost in his mind, that these guys were involved in robberies where they would then use the money for gun running and political activities. In his mind he wanted a big case of robbery, which he would then stop and arrest these guys. Now whether that was foolish or not, really, it does not arise, what is important that this is what he states, that he wanted to get them on a big case of robbery, and this is why he waited for that, there were many opportunities, I agree, to have arrested these guys in other manner or earlier on and so on, but, he may have been over-enthusiastic, I don't know, but he wanted to arrest them on a charge of robbery.

CHAIRPERSON: But this arrest was to take place before there had been any attempt to commit a robbery, merely while they were sitting in a motor car. They could have been arrested when they left home, couldn't they?

MR MADASA: Yes, Mr Chair, but obviously they would have obtained good evidence had he arrested them at the scene and having had evidence sufficient enough to indicate that they were about to embark on their plan of robbery.

CHAIRPERSON: Robbing who? We have been told by Mr De Ru that there was nobody there at the time.

MR MADASA: It was stated that that place opened normally at five o'clock in the morning.

CHAIRPERSON: On that occasion there was nobody there.

MR MADASA: I say, Mr Chair, they were going to rob people.

CHAIRPERSON: Well don't you have to rob people, isn't that what robbery is about?

MR MADASA: Mr Chair, they were going to rob that place, the ...(intervention).

CHAIRPERSON: (Indistinct), it was a housebreaking case, was it, and theft, they were going to commit housebreaking and theft, is that what you're now saying? Although we have heard that Mr De Ru suspected them of having killed six policemen, I would have thought that was a very much higher case to have arrested them for?

MR MADASA: According to the information that the applicant received, he anticipated that these people were going to arrive there and open at that time, and then they would be robbed, that was the ...(intervention).

CHAIRPERSON: The point I'm making is, they hadn't, he knew they hadn't, he knew there was nobody there at all, so it wasn't going to be a high profile robbery, was it?

MR MADASA: But that was the plan and anticipation that it was going to be.

CHAIRPERSON: Mr De Ru was at the scene, he could see what had happened, he could see there was nobody there at all, couldn't he?

MR MADASA: I don't know the policy-making, Mr Chair, are you saying he should have then aborted the plan?

CHAIRPERSON: He could have arrested them on numerous other incidents, if he had the evidence we've been told he had, why, why choose this?

MR MADASA: But it is the information he received, he went according to information he received from Fouche that on that particular day they were planning this kind of robbery, and he says he was misled.

CHAIRPERSON: And he must have realised he was misled. The point I'm simply making is, you have been saying he wanted to get a big robbery, but he wasn't, he could see he wasn't going to get it.

MR MADASA: It was too late, Mr Chair, I mean at the scene, it was too late, everything happened fast there, it was too late now to withdraw or to realise that, at that moment, it was a hit of the moment and it was a matter of life and death at that stage.

Mr Chair, I go to full disclosure. I submit that applicant made full disclosure as to what he believed and what he was told. He was honest and straightforward. There is no evidence before the Committee that there are matters that he left out or deliberately omitted which are material to his application.

I submit lastly that in terms of the Act, section 20A and B, the requirements thereof, that the offences were political and were associated with the conflict of the past. I submit that his version, if it's accepted that these people were indeed members of ANC and MK, which was in conflict with the government of the past, and that he then made full disclosure, and in terms of section 22B, he satisfied that requirement, namely that the offences were ordered by an employee of the State, here I refer to the letter by General Malan, but I'm saying even if that letter didn't exist, there was an implied authority on the employees of the State at the time to deal with political activists, either by arrest and/or killing.

I submit further that,in terms of section 23 ...(intervention).

MR MALAN: Sorry, may I again interrupt you there, I have a major difficulty with that argument. The argument that you're putting before us and the evidence is that the killing was never planned, it only eventuated when things went wrong. Now that is not a political motive, that's part of police duties then, to act in a certain way. How do you bring political motive, because it's not, the political in terms of 22B is not in the broad political conflict, especially when it concerns a functionary of the State, it must be under an order or a direct order. You rely on an implied order, which I think the Amnesty Committee has taken as a line, but the implied order does not relate to duties, it relates to criminal activities, outside of the scope of duty. Sorry, Mr Madasa, that's perhaps again the argument that I asked you earlier to think through, put it in clear terms before us, because I remain with a difficulty with that at the moment.

MR MADASA: Thank you, Mr Chair, indeed I'll do so.

Further on, I submit that in terms of section 23, the applicant has shown that these offences which he committed were associated with a political objective, in that he believed that the deceased persons were members of a political organisation and in attempting to arrest them and then killing them, he was doing his duty as a policeman, and that the killing was directed at the opponents of the State, because they were members of a political organisation.

I further submit that the applicant had the factual basis, on the fact that the deceased were political activists, on the information received from Fouche and Elsa.

And lastly, in terms of section 23F(I), the applicant did not benefit personally from the offences that he committed, and I submit that he has made a good case and he should be given amnesty.

Thank you, Mr Chair.

CHAIRPERSON: Well we were told yesterday that the other three gentleman are going to be short, which of you is going to start?

MR COETZEE: Mr Chairman and esteemed members of the Committee, I'm not going to address anything as to the soundness of the application, it is only my respectful submission that the only true full disclosure as to the cause and the facts leading up to the death of the deceased is contained in the two statements by Fouche, who I'm representing, and that is in fact the full disclosure of the truth, and I will leave it at that. Thank you.

UNKNOWN SPEAKER: Thank you, Mr Chairman, I deem it unnecessary to advance any argument on behalf of the implicated person, Isak van der Merwe, alternatively I'm of the opinion that it will have no relevant contribution to any decision taken.

Thank you.

UNKNOWN SPEAKER: Thank you, Mr Chairman, the position of the victims were from the beginning that they're opposing the application because of the basis that the actions of the applicant were not politically motivated whatsoever. This is still the view of the victims, except to say, maybe lastly to say that the victims feel that the applicant didn't take the Committee in his confidence and there was no political motivation whatsoever for his deeds, and his application must therefore fail.

Thank you, Mr Chairman.

CHAIRPERSON: I take it you don't want to reply to that. How long would it take you to prepare arguments basically on the points raised by the members of the Committee, or on any other legal points you wish to raise? A week? I don't want to push you too hard on this, I'm aware you have other things to do. How long would you need?

MR MADASA: Mr Chair, just before I answer that, I'll answer that, shortly on this admission by Advocate Coetzee that the statement of Fouche must be taken as such and as truth. I submit that Fouche had an opportunity to go there and tell the Committee his version. He did not have courage to do so, for obvious reasons, and an adverse inference can be properly drawn from that fact.

Mr Chair, lastly, on the last question then, a week would be sufficient.

CHAIRPERSON: Could you arrange to have it sent to the Cape Town office and they can forward it to us? I think that's easier than asking you to send copies to all three of us at different places.

Thank you. We will now adjourn this matter to allow ...(intervention).

MR MADASA: Sorry, Mr Chair, I've a question to ask from Mr Chair about the first application, just, I don't have an indication of what is going on in that application. Is Mr Chair in a position to supply ...(intervention).

CHAIRPERSON: Well I don't know what's going on either, because as you will recollect, we discussed at some length the fact of the second application, and the Committee that heard the first application considered it desirable that they should hear the second, and in fact if questions of credibility were to arise, and if you look at the end of the transcript of the evidence of the first, there is a request that arrangements be made to set that application down at the same time as the present application, so they can be dealt with together. As you know, that hasn't been done, we now sit with a separate Committee, so the previous Committee will have to decide on what it has heard or on any information that's become available here on that application, but do you wish to advance further argument, because you did, as I recollect, on certain points say that you would rather not address the Committee?

MR MADASA: Mr Chair, eventually I did ...(intervention).

CHAIRPERSON: You did submit a fairly long, you have submitted helpful and detailed written argument, but I don't know whether you, as I, were under the impression that the Committee was going to sit again and that you would have an opportunity. I don't want to deprive you of that opportunity. If you are satisfied that you don't want to add anything to the written argument you have already submitted, we can proceed to deal with it on that basis.

MR MADASA: Yes, thank you, Mr Chair, I have nothing to add, except to request Mr Chair to, in his powers, to expedite that matter.

CHAIRPERSON: Thank you. As I say, we'll now adjourn for a few minutes to enable a fresh team to arrive and for such arrangements to be made.

MR STEENKAMP: Mr Chairman, this is an application of Tshoane, Mr Stanley Tshoane and six others. This incident happened in the Wesselsbron Supermarket Attack in July '93, the 3rd of July to be exact, and the first applicant being that of Mr Mangalisekile Bhani.

Indicated in the bundle is this ...(intervention).

CHAIRPERSON: ...(inaudible)

MR STEENKAMP: His application appears in the bundle on page 7 to 9.

CHAIRPERSON: Have we got a new list? (Inaudible - mike not working). Bhani will be No 1?

MR STEENKAMP: Bhani will be No 1, Mr Chairperson.

CHAIRPERSON: ...(indistinct).

MR STEENKAMP: No 2 will be Stanley Tshoane.

MR MBANDAZAYO: Mr Chairman, I think if you want the order of them, how are they going to give evidence, Mr Chairman, I can do that, Mr Chairman.

CHAIRPERSON: I just want to get some certainty about the names of the applicants. Is, for example, Mr Raymond Leklapo Mpashlele one of the applicants?

MR MBANDAZAYO: Mr Chairman, he's not one of the applicants, Mr Chairman.

CHAIRPERSON: He's not?

MR MBANDAZAYO: Yes, Mr Chairman.

CHAIRPERSON: ...(indistinct)?

MR MBANDAZAYO: Yes, Mr Chairman, also is not an applicant, Mr Chairman.

CHAIRPERSON: ...(indistinct)?

MR MBANDAZAYO: Sorry, Mr Chairman, we have seven applicants, Mr Chairman.

CHAIRPERSON: Seven. Well then you'd better give us their names, you've got various lists, we have set down before us one list of five names.

MR MBANDAZAYO: Mr Chairman, the only way I can give you, if you can take the affidavits of Bhani, the affidavits, it's going to be in that order, Mr Chairman, with the exception of Danny Sibande, who is not an applicant. The affidavits, Mr Chairman.

CHAIRPERSON: Shall we take them in the order they are in the bundle?

MR MBANDAZAYO: In the affidavit, Mr Chairman, the supplementary affidavits, signed ...(intervention).

CHAIRPERSON: Can you give us the paragraph in the affidavit that you're referring to?

MR MALAN: Mr Chairman, it's the affidavit, this one, by Bhani, they are going to appear in that order, in that fashion, Mr Chairman, in the affidavit, in the heading of the affidavit, Mr Chairman.

CHAIRPERSON: In the order they appear in the heading?

MR MBANDAZAYO: Correct, Mr Chairman.

CHAIRPERSON: That is Bhani, Ngesi, Khotle ...(intervention).

MR MBANDAZAYO: Tshoane.

CHAIRPERSON: Tshoane, Morrison, Mazete, Mohape ...(intervention).

MR STEENKAMP: And not Sibande.

MR MBANDAZAYO: Not Sibande, Mr Chairman.

MR MALAN: Why is the name of Sibande on the affidavit?

MR MBANDAZAYO: Mr Chairman, initially I thought that he was an applicant also, but it transpired that he has no - he did not apply for amnesty, Mr Chairman.

MR MALAN: Thank you.

CHAIRPERSON: ...(inaudible) solves one. The second matter that I'd like to clarify is that we have been given a copy of Mr Morrison's application, and we've also been given one of Mr Mazetske's, which I've just discovered, and what is the position about Mr Mohape?

MR MBANDAZAYO: Mr Chairman, there is an application, Mr Chairman, which I also wanted it to be dealt with, well if the Committee so wishes, and he has made an affidavit to that effect as to why his application was not before the Committee like the others, Mr Chairman.

CHAIRPERSON: Does that make it a valid application?

MR MBANDAZAYO: Mr Chairman, as I indicated that we are in the hands of the Committee, but when I consulted with him, Mr Chairman, last weekend in prison, he was transferred from Kroonstad, he told me that he did apply for amnesty regarding this matter, and it was on that basis that I assisted him in applying and drafting the affidavit, that he had made the application, and in that ... (intervention).

CHAIRPERSON: If you look at his affidavit, he said he completed the form in the presence of the regional chair-person of the PAC and handed the form to him, who undertook to hand it in at the TRC office, and he's always been under the bona fide impression that it is before the Committee for consideration. Now I have been carefully informed of the date and time of this hearing, has he received correspondence from the Amnesty Committee or the TRC, as an applicant?

UNKNOWN SPEAKER: Mr Chairman, I stand only as an implicated party, only as an implicated party, Mr Chairman.

MR MALAN: Could I refer you to the second page of Mr Mohape's affidavit? In paragraph 6, under oath he says he applied whilst in prison in '95. The Act only came into operation in December '95, and there was no procedure or no application form. He's probably referring to a further indemnity application. So, if we have to go by the date, paragraph 6, if we have to go by the date, it's impossible that it was an amnesty application.

CHAIRPERSON: He doesn't say he applied in 1995.

MR MALAN:

And he says in 1995.

CHAIRPERSON: Where?

MR MBANDAZAYO: Paragraph 6, first sentence, Mr Chairman.

MR MALAN: That probably refers to a further indemnity application.

MR MBANDAZAYO: Mr Chairman, I won't be in a position to say it was referring to further indemnity, Mr Chairman, the impression I got at that particular point in time, also myself, I must confess I didn't pick it up at that particular point in time, I took it for granted when he said that he filled and he completed the forms, maybe he was making a mistake about the year in which - but he was adamant that he did fill the application form.

CHAIRPERSON: Well, we have had numerous other people who filled in the indemnity form and thought it was an amnesty form, but he also goes on in his affidavit, in paragraph 8, to say that it got lost or misplaced either by Lekotze or a person in the employ of the TRC. Well surely we should at least have had an affidavit from Lekotze saying, "I lodged the form with the TRC". He, the applicant now says Lekotze may have lost it.

MR MBANDAZAYO: Thank you, Mr Chairman. ...(indistinct), Mr Chairman, I have been hoping that he would pitch up, I've tried, I've left messages for Mr Lekotze to come regarding this matter, because I wanted an affidavit to confirm with him. He is here in Bloemfontein, but he hasn't managed to come back to me, so I'm in that predicament regarding this matter. I had hoped that he would come here and clarify the matter.

CHAIRPERSON: It seems to me that it would be improper for us, on the information before us, to say there is a valid application before us, as has been pointed out, the date appears to be wrong and there's nothing to confirm that the application was ever lodged. This is not a case, that we have had others, where the prison authorities have taken custody of the applications and have forwarded them and they have been mislaid, but this is not so, this is a member of his own political organisation who was entrusted with it. I do not, however, wish to waste unnecessary time, and it seems to me, subject to the agreement of the members of my Committee, that we should hear the application on the basis that we do not accept that there is a valid application before us, that there is an onus on the applicant to obtain further information as to whether an application was in fact ever lodged, and to supply us with such information. If that is done, we will then treat the application as a valid application and have regard to the evidence we have heard. If it is not done, and I think there will have to be a time limit, we will dismiss the application on the basis that there was no valid application before us.

Do you agree with that?

MR MBANDAZAYO: I agree with that, Mr Chairman, thank you.

MR STEENKAMP: No objectoin Mr Chairman.

CHAIRPERSON: Right, it will be recorded that in the case of Paulus Moshlolo Mohape, there is, at the present time, no satisfactory evidence or information before us indicating that an application was ever lodged in compliance with the terms of the Act. We are, however, prepared to hear the evidence of the applicant, together with all the other applicants today, to avoid unnecessary waste of time and perhaps duplication, but we hear it on the basis that this does not constitute an acceptance of the application that has now been put before us, which was completed on the 5th of August of this year, and that it is incumbent upon the applicant to investigate the matter further and to put information before us to show that there was a valid application entered into by him, this he may well have done in his affidavit, but furthermore that this application was thereafter lodged with the Amnesty Committee or the TRC in terms of the provisions of the Act. And it is also, I think, necessary to put a time limit on this, that this must be done within one month of today. If this is done, we will consider the application, if it is not done, we will dismiss the application on the basis that no proper application has been made in terms of the Act.

Mr Mbandazayo, who appears for the applicant, has agreed that this would be the correct form to follow, and we accordingly propose to do so.

MR MBANDAZAYO: Thank you, Mr Chairman, may the applicant be sworn in.

CHAIRPERSON: Oh, sorry, the next stage, the Committee is constituted as it was yesterday, but would Mr Mbandazayo please put himself on record?

MR MBANDAZAYO: Thank you, Mr Chairman. My name is Lunga Mbandazayo, I'm appearing on behalf of the applicants in this matter. Thank you.

CHAIRPERSON: Mr Steenkamp, you are again appearing for the victims, are you, and as the leader of the evidence?

MR STEENKAMP: That's correct, Mr Chairman, honourable members.

CHAIRPERSON: Would you stand please?

MANGALISEKILE BHANI: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Mr Bhani, you have an affidavit in front of you, which is also in front of the Committee, before the Committee, do you confirm that the affidavit which is before the Committee was made by yourself and you abide by its contents? 

MR BHANI: That's correct.

MR MBANDAZAYO: Mr Chairman, I won't go through, I will take it that the Committee have read the affidavit, but I'll go to paragraph 10 of the affidavit, unless the Committee has any point which it wants to raise before the paragraph preceding that one?

CHAIRPERSON: No, carry on.

MR MBANDAZAYO: Thank you, Mr Chairman.

Now, Mr Bhani, can you expunciate(?) and tell the Committee, where did you meet Khotle exactly in Welkom and where did he arrange your accommodation in Wesselsbron, for the benefit of the Committee?

MR BHANI: I met Mr Khotle at G Hostel, where he used to stay. We left for Wesselsbron at Sherman's house, who was working for the PAC, so I got accommodation.

MR MBANDAZAYO: Do you still know the name of the chairman of the PAC in Wesselsbron, who gave you accommodation?

MR BHANI: It was Shermi.

MR MBANDAZAYO: Now ...(intervention).

CHAIRPERSON: Sherne, was it?

MR MBANDAZAYO: Can you come again, Mr Bhani? Can you repeat the name?

MR BHANI: It was Shermi.

CHAIRPERSON: Sorry, before you go on, paragraph 10, Sibande, is that Daniso Sibande?

MR BHANI: Yes. Yes, that's him.

MR MBANDAZAYO: Can I proceed, Mr Chairman?

CHAIRPERSON: Certainly.

MR MBANDAZAYO: Can you tell the Committee, when you were provided this accommodation by Shermi, the chairman of the PAC, did he know your mission in Wesselsbron?

MR BHANI: He wouldn't know.

MR MBANDAZAYO: Or did he know that who you are, did he know who you are?

MR BHANI: Yes, he knew my name, he knew exactly who I was, he knew that I was an APLA member.

MR MBANDAZAYO: Can you give the Committee the name that you used when you were in Wesselsbron?

MR BHANI: My name was Sipho at Wesselsbron.

MR MBANDAZAYO: Thank you. Now, Mr Chairman, I will proceed to paragraph 11, if the Committee has no further questions.

MR MALAN: Sorry, we have questions. The question was put whether he knew your name, Mr Bhani, whether he knew you, you said he knew your name, your name was Sipho, and he did know then that you were an APLA member. Did he know anything about your rank or status?

MR BHANI: He didn't know anything about my rank, but he knew that I was an APLA member.

MR MALAN: Did he know that you had any mission?

MR BHANI: No, he didn't know about my mission.

MR MALAN: Why did he think that you came to Wesselsbron?

MR MBANDAZAYO: Sorry, Mr Chairman, I think there's a problem. Can you increase your volume? We don't hear. Can you hear?

MR BHANI: No, I don't hear the interpreter.

MR MBANDAZAYO: He does not hear the interpreter very well.

MR BHANI: Yes, I can hear now.

MR MALAN: The question is, what reason did you give Mr Khotle for your presence in Wesselsbron?

MR BHANI: Mr Khotle was a regional commander, he knew everything that was happening in that area. He knew exactly where I was to be deployed, and I would do area assessment and I would detect whatever, whenever it was necessary.

MR MALAN: Did he know in advance of your presence, that you would be coming to Wesselsbron, is that what you're telling us?

MR BHANI: Whom are you talking about?

MR MALAN: I'm talking about Mr Khotle.

MR BHANI: As a regional commander, when I moved from Umtata, I didn't even know that I was going to Wesselsbron, but he knew that he's the one who would receive me and deploy me somewhere.

MR MALAN: Who took you to Wesselsbron then, if you didn't know that you were going there?

MR BHANI: Mr Khotle, as a regional commander, is the one who received me there, he knew where he was going to deploy me, I didn't even know that I was going to Wesselsbron, but he is the one who deployed me there at Wesselsbron.

MR MALAN: Mr Mbandazayo, I hope you have my question, I'm not sure whether the applicant understands the question. If you could please lead him on why did he go to Wesselsbron, on whose instructions, how did he land there if he didn't know he was going to Wesselsbron?

CHAIRPERSON: Khotle took him there.

MR MALAN: No, no, Sibande took him there.

CHAIRPERSON: Sibande took him to Welkom, where he met Khotle.

MR MALAN: Thank you, sorry then it's my misunderstanding, you should have helped me earlier then, Chair.

MR MBANDAZAYO: Thank you, Mr Chairman. Now we'll proceed, Mr Chairman, then to paragraph 11:-

Now, just before I complete the paragraph, can you be able to give the Committee a picture, how did you do your reconnaissance of the target? 

MR BHANI: I inspected the place. When I was inspecting the place, I realised that there was, they close at about 9:00 in the evening, there are people who normally buy there who were members of AWB and including SAP, that's how I identified this place as a target, then I gave the report to the regional commander that I have identified a target. Therefore, I wanted him to approve, to go to the Director of Operations to approve.

CHAIRPERSON: Can you tell me how you identified shoppers as members of the AWB?

MR BHANI: It's easy, because of their khaki uniform and their big hats like the cowboy hats and they were armed. Some were armed with two firearms. So it was quite easy to identify them.

CHAIRPERSON: Did they come into the shop dressed like that?

MR BHANI: Yes.

MR MBANDAZAYO: Can I proceed, Mr Chairman?

CHAIRPERSON: Yes.

Now, what gave you the impression that the order was approved by the Director of Operations?

MR BHANI: It is because I heard that from the regional commander, who was my superior.

MR MBANDAZAYO: Now, last sentence:-

Can you explain that to the Committee, how did that happen?

MR BHANI: George Mazete is a person who was recruited by myself to be the member of the taskforce, because I wanted it to be easy to get him when necessary. It was appropriate for him to be there when we are doing the reconnaissance. It was also good for him to get experience on how to do some of the things.

CHAIRPERSON: Where did you know him from?

MR BHANI: I met him there at Wesselsbron. As I was doing this area assessment when I arrived there, I got to know people and I could see who are the people who were qualified to be the members of the taskforce, so that whenever it is necessary for us to get a person whenever we need some reinforcement, we knew whom to consult.

MR MALAN: Are you saying he was a member of the public at Wesselsbron?

MR BHANI: No, he was also a member of the organisation, the one that I belonged to.

MR MALAN: Where did you learn this?

INTERPRETER: Could the speaker please repeat the question?

MR MALAN: Where did you learn that he was a member of the organisation, because you only said you met with him Wesselsbron? Who told you he was a member of the organisation?

MR BHANI: I used to see him wearing the T shirt of the organisation, and even in meetings, he would be present and he was one of the people who were participating during the debates and the discussions.

MR MBANDAZAYO: Did Mazete know that when you asked him to assist you in drawing up the map and making the reconnaissance, did he know that this place is going to be attacked?

MR BHANI: No, he didn't know.

MR MBANDAZAYO: Mr Chairman, if there are no questions on that paragraph, I want to move to paragraph 12:-

Can you tell the Committee, when these arms were brought to you, were you told where these arms were coming from?

MR BHANI: Yes, as the commander, I was supposed to know where they were coming from.

MR MBANDAZAYO: Tell the Committee where they were coming from?

MR BHANI: They were coming from Umtata.

MR MBANDAZAYO: Do you know how do they come from Umtata to Wesselsbron?

MR BHANI: As I was not there, I don't know how they came from Umtata or what happened, I only know that I got a report that they were from Umtata.

MR MBANDAZAYO: Mr Chairman, I move to paragraph 13:-

Now can you tell the Committee, why did you take an R4 and you gave the rest to Khotle?

MR BHANI: Yes, I was alone, I couldn't take all the arms with me, I could only take one and then others were to be handed to the Africans, so that if anything happens, they were not with me, all of them.

MR MBANDAZAYO: I proceed to paragraph 14, Mr Chairman, if there are no questions.

Now, can you tell the Committee with whom did you decided that this will be a suitable day for the attack on the supermarket?

MR BHANI: I took this decision with the regional commander.

MR MBANDAZAYO: Paragraph 15:-

Now my question will be, can you elaborate on Sebinzile and Sibande to the Committee, because the other one you mentioned, they are the applicants, can you tell the Committee about Sebinzile and and Sibande?

MR BHANI: Sebinzile passed away in 1994. Sibande, I don't know where he is, but they were the people who were there, together with Ngesi.

MR MBANDAZAYO: Now, paragraph 16:-

Now, can you tell the Committee about your briefing of the other members of the unit?

MR BHANI: When they arrived, I told them about the target, I told them that we're going to attack Wesselsbron Supermarket. They then knew that the Wesselsbron Supermarket was in front of the taxi rank, it was easy for them to identify or to know the target I was talking about.

Now, paragraph 17:-

...(intervention).

CHAIRPERSON: Just before you proceed there, on paragraph 16 still, when did the other comrades coming from Welkom, did get instructions to come to Wesselsbron, and how did they get instructions?

MR BHANI: They got instructions from the regional commander, because it was myself and the regional commander who knew the target, they received a message from the regional commander that they would meet me in Wesselsbron and I would brief them and tell them about the target.

MR MBANDAZAYO: Thank you, Mr Chairman.

Now, Mr Bhani, I want you to take the Committee through what happened when you entered the supermarket, give them a picture, all of us were not there, you were there, give them a picture as to what actually took place when you entered the supermarket at Wesselsbron?

MR BHANI: We stopped the car in front of the supermarket. I was the first person to enter the supermarket. When I was at the door, I met a woman. I then grabbed this woman and took her inside. I told them to lift their hands, all of them, and they did so, and other comrades came in. I then told them to shoot. After that, I told them to take money. We then withdraw.

MR MBANDAZAYO: You told the Committee that you gave an order to open fire, is there any other person who was giving order, except yourself, regarding what is supposed to take place inside the supermarket?

MR BHANI: No, there was nobody else who was giving order there, except myself, Bhani, I was the one giving the order about what should be done.

MR MBANDAZAYO: Now, can you tell the Committee, do you know how much money did you manage to get at the supermarket?

MR BHANI: We got R4 000,00 in cash and some cheques. We then burnt the cheques and we surrendered the money to the regional commander.

CHAIRPERSON: Did you say you banked the cheques? Burnt? Sorry.

MR BHANI: Yes, we burnt the cheques.

MR MBANDAZAYO: Now, paragraph 18 ...(intervention).

CHAIRPERSON: Before you go on, how many other people went into the supermarket? You've said yourself, Ngesi and Sebinzile were to enter, did anybody else enter?

MR BHANI: Sibande was standing at the door. He was looking for something that would come - we were three of us inside, it was myself, Sebinzile and Ngesi, there was no-one else who entered the supermarket.

CHAIRPERSON: What happened to the comrades from Welkom?

MR BHANI: We shot there and took money.

CHAIRPERSON: What happened to the comrades who came, the armed comrades who came from Welkom, who you instructed about the target?

MR BHANI: I don't understand the question.

CHAIRPERSON: You have told us that, and I'm going back to paragraph 16:-

Do you understand all that from your own affidavit?

MR BHANI: Yes, they arrived.

CHAIRPERSON: Now what happened to these armed comrades who had come from Welkom to join you, when they got to the target, when you got to the target?

MR BHANI: Nothing happened to them, because when they arrived, I told them about the target. After that we took a car and then we went to this target. When we got there I was the first person to enter, and then I told the people inside to hold their hands and the other comrades came in, I gave them the order to shoot, we took money, after that we withdrew. Exactly what do you think happened to them?

CHAIRPERSON: Are you not prepared to tell us what the comrades from Welkom did?

MR MALAN: Chairman, may I just ask this question to the applicant, Sebinzile, Ngesi, Sibande and Tshoane, were they from Welkom?

MR BHANI: Yes. Sebinzile, Ngesi, Sibande and Stanley were the ones from Welkom.

MR MALAN: I think that ...(intervention).

CHAIRPERSON: Were they the comrades from Welkom?

MR BHANI: Yes.

CHAIRPERSON: Were there no other people from your area, was there only you? Were you the only people from Wesselsbron, were you the only person from Wesselsbron?

MR BHANI: Yes.

CHAIRPERSON: Now what were all these weapons for then? Were they kept at - where were they kept? As I understood, they were given to you?

MR MBANDAZAYO: Mr Chairman, if I may come in, I think he indicated that he took only one firearm and the regional commander returned with the other ones to Welkom.

CHAIRPERSON: No, he didn't say Welkom.

MR MBANDAZAYO: Well, he did not say Welkom, Mr Chairman, but he only took one firearm. I asked him why did he take one firearm, he said he was only one, so they have to keep the other ones, so that if anything happens, he's only caught with only one firearm. I think that was his testimony.

CHAIRPERSON: Okay.

MR MALAN: Before you proceed to the next paragraph, you said you entered, you grabbed the woman, told the people to put up their hands, the others entered, you ordered them to shoot. Was that planned in advance, the shooting?

MR BHANI: Yes.

MR MALAN: Did they shoot all the people present in the supermarket?

MR BHANI: Five people died, three of them were injured.

MR MALAN: How many people were there inside the supermarket at the time?

MR BHANI: I did not get a chance to count them.

MR MALAN: Were they many?

MR BHANI: I think it's this five plus three, five of them died and three of them passed away, though I did not get a chance to count them.

MR MALAN: Okay. So there were no other people in the supermarket at the time?

MR BHANI: It's obvious that there were no other people, because if they were there, they would also be injured.

MR MALAN: No, I wasn't there, but that's exactly what I wanted to find out. Thank you.

MR MBANDAZAYO: Now, paragraph 18:-

Now, can you tell the Committee where did you retreated at Mnyagene Location and who was left behind?

MR BHANI: We went to a place where I was residing. Sibande and Stanley left for Welkom. No-one was left behind at the supermarket after that.

MR MBANDAZAYO: Now, are you telling the Committee that Ngesi and Sebinzile did not go back to Welkom with Sibande and Tshoane?

MR BHANI: I'm saying Tshoane and Sibande left for Welkom. Sebinzile and Ngesi were left with me at Wesselsbron, Mnyagene Location, Wesselsbron's Mnyagene Location.

MR MBANDAZAYO: I'll go to the last sentence ...(intervention).

MR MALAN: Why? Would you just explain why they were left with you?

MR BHANI: We went to give the DLP the firearms. After that, we went together to meet the regional commander.

MR MALAN: Is he not in Welkom?

MR BHANI: Who?

MR MALAN: The regional commander.

MR BHANI: The regional commander was in Welkom.

MR MALAN: Did I understand you that Ngesi and Sebinzile did not go to Welkom, they stayed with you in Wesselsbron?

MR BHANI: Yes, after the operation, it's only Stanley and Sibande, I was left with Sebinzile and Ngesi at Wesselsbron.

MR MALAN: And the weapons?

MR BHANI: Yes.

MR MALAN: So when did you take the weapons to the regional commander?

MR BHANI: We didn't take the firearms to the regional commander, we took them to George Mazete, we met the regional commander later and we gave him the report and the money, the report about the operation and the money.

MR MALAN: Thank you.

MR MBANDAZAYO: Thank you, Mr Chairman, I think you also covered the last paragraph, or the last sentence in paragraph 18, now I'll proceed to paragraph 19:-

Tell the Committee how did Khotle arrange your accommodation and thereafter left to Transkei, and what was his reason for leaving for Transkei? 

MR BHANI: As a regional commander, he knew his area, he had some people that he used to contact with and the same people who would help him whenever he needed some help. What made him to go back to Transkei, I was the person who was going to take over the Free State, I was going to be the regional commander.

MR MBANDAZAYO: Now, did you take over the aim as a regional commander eventually?

MR BHANI: No, I didn't take over, because we withdrew and we went back to Transkei, and when we were making those arrangements, we realised that a lot of people have been arrested, then I was not in a position to go back to the area.

MR MBANDAZAYO: Now, finally, can you tell the Committee the reason why you attacked Wesselsbron Supermarket?

MR BHANI: The aim was to fund-raise, because we didn't have financial resources. As we were trained soldiers, we had to do everything ourselves, so that we could be able to continue with the struggle.

MR MBANDAZAYO: You know that people lost their lives in the process. What do you say to that? In the supermarket, persons in the supermarket, people lost their lives, so what do you say to that?

MR BHANI: Yes, I know that people died there. All I'm saying is this, in the war people die. If we, in that type of a situation, the conditions that were prevailing at the time, it was obvious that the people would die and it wouldn't surprise anyone, because even ourselves, our country was taken by the shed of blood, we were forced to get back our country, our land, with blood, by shedding of blood.

MR MBANDAZAYO: Is there anything you want to add to what you have already told the Committee regarding the incident at Wesselsbron?

MR BHANI: Yes. We are here today, we are living, we have democracy because of the missions of APLA as an organisation, as they were pressuring the boers to take note at our demands and the negotiations that were taking place at Kempton Park. The PAC was also involved in the negotiations. That also pressurised the boers to take notice of what was happening. That is why today we are living like this, it is because of those pressures.

MR MBANDAZAYO: That is all, Mr Chairman.

ADV SOGODI: In your application, you say that you went to kill there because there would be AWB people and SA police members. Now on this day when you committed this act, did you see any policemen or SAP people, or AWB people when you got to the supermarket?

MR BHANI: It might happen that they were there, but they were un-uniformed, maybe they were un-uniformed.

ADV SOGODI: But as a trained soldier, didn't you think it necessary to look out specifically for those people?

MR BHANI: It was not important to us to look out for those people whether they were AWB or whatever, it was not important for us, as APLA members we didn't have soft targets and hard targets, even if the AWB people were not there, those who were there were the right people to be shot at.

ADV SOGODI: I understand that, but the thing is, from your application, the reason why you identified that particular supermarket is because it was patronised by AWB and SAP

people. So if that was the main reason for having identified that particular target, I would have reasoned that it would be necessary at least that before you launch an attack, you see if these people that you used to identify the target were there, because in that, in fact you could have gone to kill anyone, you could have gone to - I mean it wouldn't have even been necessary to do a reconnaissance and identify a particular target. Why I'm asking you is because of your application, because you identified that particular target because it was patronised by AWB and SAP. Now I want to know why you didn't look or deem it necessary to check if there were AWB or SAP people on that day?

MR BHANI: In our plan, even if they were not there, we were going to shoot anyone who was in the shop, as long as they were white, so that, they were the people who were actually benefitting from the old government, the oppressive government, because if they were innocent, they would exert pressure to the government that the people should vote, everyone should vote and we should be given a chance to vote and be part and parcel in the decision-making of the country.

CHAIRPERSON: You see you said in your application that you were told to go and kill those people as there were AWB and SA Police Force members in the supermarket. Do you remember saying that in your application?

MR BHANI: I remember writing it down on my application, but it's not detailed, today I'm giving you full details about that matter, so that it should be clear to you.

CHAIRPERSON: And who gave you the instructions to do this?

MR BHANI: The person who gave us instruction to do this, it was the regional commander, who got his instruction from the Director of Operations.

CHAIRPERSON: And who is that?

MR BHANI: That was Mpashlele.

CHAIRPERSON: Raymond Leklapa Mpashlele?

MR BHANI: Yes.

CHAIRPERSON: Did he instruct you to go to this place?

MR BHANI: He is the one who issued that instruction to the regional commander to further issue another instruction to us to continue with the mission.

CROSS-EXAMINATION BY MR STEENKAMP: Thank you, Mr Chairman. Sir, the view of the victims is that your application, the basis for your application, does not, in any event, in any sense, have a political motive, your actions at that day was indiscriminate shooting of business people in Wesselsbron. Do you have any reaction to that? 

MR BHANI: Whoever is saying that has got the right to say so, because they were enjoying the wealth of our country. He or she's got the right to say so, because that actually sabotaged his or her capitalism, and they were not actually feeling what we were feeling as the people of this land.

MR STEENKAMP: Did you establish before this incident or during your planning incident whether or not any of the people in the shop are business people, or in any event members of a political party or not, because I can tell you now that if necessary the victims will come and state that neither any of them ever belonged to any political party?

MR BHANI: If they were not affiliated in any of the political organisations, even if they were not affiliated, but the fact remains the government belonged to them, they were governing the country, and if they could see that what the government was doing to us was wrong, they were supposed to take action and oppose whatever that was being done by the government, to stand up and tell the government that this is wrong, because they would be affected by the consequences.

MR STEENKAMP: Just for clarity's sake, Sir, am I right in saying the people, when you entered the shop, nobody resisted you and nobody was armed, am I right?

MR BHANI: I don't know if the people there were unarmed or armed, because we didn't get a chance to search them personally.

MR STEENKAMP: But when you gave the order that they must lie down, all of them did that, is that correct, they didn't resist you, am I right?

MR BHANI: I didn't tell them to lie down, I told them to lift up their hands. 

MR STEENKAMP: And did they do that?

MR BHANI: Yes.

MR STEENKAMP: And then afterwards you gave the order that the shooting must "maar" start, is that right, after the incident you gave the order, the shooting must start?

MR BHANI: Yes.

MR STEENKAMP: Was this policy - was what you did in that shop, was that part of PAC policy, to shoot people after they lifted their arms and they basically did what you asked, was that part and parcel of PAC policy?

MR BHANI: It says the white man is the one who is oppressing us, and I grew under those circumstances, so even if he has lifted his arms or not, you've got to kill him, so that his government could feel the pressure and see that the government's own people are dying, therefore they can do something about that.

MR STEENKAMP: Maybe I've missed that answer, but can you just explain to me, how would the killing of these innocent people benefit your political cause as members of APLA at that stage?

MR BHANI: We were going to get liberation, the one that the people are talking about today. What APLA was fighting for was liberation. APLA was aiming at getting liberation.

MR STEENKAMP: What was your main focus that day, to kill people or to rob them, what was your focus that day?

MR BHANI: The two of them goes hand in hand. We were not getting financial assistance from anywhere. As well-trained people, we had to fund-raise ourselves, so that we can continue with the struggle, we could continue with the struggle, because we solely depended on ourselves.

MR STEENKAMP: But surely, Sir, you could have taken the money and leave, it was totally unnecessary to kill those people, wouldn't you agree, because that's what the victims are saying?

MR BHANI: Yes, according to the victims, there was no reason for us to kill, but to us there was a reason to kill.

MR STEENKAMP: Were you instructions the same, that you actually must go there and kill, is that what your instructions were, from your commander?

INTERPRETER: Can you please repeat your question?

MR STEENKAMP: What exactly were your instructions, Sir, must you go there and kill, is that what your instructions were from your regional commander, or what exactly was the instructions?

MR BHANI: The instruction was to kill and take money.

MR STEENKAMP: May I just, on this point, if I understood you correctly, and just correct me if I'm wrong, you were saying you identified the target after your reconnaissance, you made the plan, the map was drawn with the assistants, then you approached the regional commander, who from the Director of Operations, as you understood it, approved a plan that you submitted, is that correct?

MR BHANI: Please repeat your question, Sir.

MR STEENKAMP: My question is, did you indeed get instructions, or did you get approval for a plan that you decided upon?

MR BHANI: As I made reconnaissance, I told him that I identified the target, he then went to the Director of Operations for approval, and he was given an order that we should continue with the mission. He then came to me and gave me that instruction.

MR STEENKAMP: That's exactly how I understood - that's how I understood your evidence. My question is, when you made the reconnaissance and gave your plan to the regional commander for him to seek approval, did you tell him that you would be hitting Wesselsbron Supermarket, you would be killing all the whites there and that you would be taking money, that that was the plan, did you tell him all that?

MR BHANI: I told him that there were members of the AWB who frequented the supermarket, I told him that way, that there were members of the AWB and the police who used to go to that supermarket. In my initiative, I have a right to use, or to use my powers in the field.

MR MALAN: Are you saying that you did not need any approval to shoot or to rob, that you could do as of your own authority?

MR BHANI: As I've already said, I told him about the target, and I told him who was with - used to go to that target. He then came back with a report that we should go on and attack the target. I couldn't do that without their approval, as they were my superiors.

MR MALAN: I just wanted clarity of what, maybe it's your definition of target, once you identified the target, it was clear in your mind, you would be shooting all the whites there and you would take all the money that you could take, that's the definition of deciding on a target, is that correct?

MR BHANI: Yes, we would shoot everybody who was white and took money.

MR MALAN: And you didn't receive orders to do that, that was implicit, it was simply approved?

MR BHANI: According to our policy as the soldiers, you couldn't do anything without an order. As I've already said, we received an order to shoot the people who was there and take money. I gave such a report. When I receive an order to carry on with the mission, the answer, my report, the one that I gave them.

MR MALAN: I'm not trying to set a trap to you, I'm trying to understand in my own mind, when you did the reconnaissance, you identified the target, already then you know that if it would be approved, everybody present, every white person present, would be killed, all the cash would be taken, am I understanding you correctly, that's all I'm asking, is that what it means when you say you identified the target?

MR BHANI: I don't understand you, can you please repeat your question?

MR MALAN: I want to understand whetehr the regional commander told you to shoot the people, and whether that was the first time that you thought of shooting people, and steal the money, what was your idea when you say you identified the target? Does it mean that you then already decided, "This is the place we will attack, we will kill all the whites, we will take all the money, in order to do that, we simply need approval from the commander"?

MR BHANI: After identifying the target, I had to give a report saying that there is a place like this, as a superior, please approve this or give an order or a decision, as you have the powers to do so, for us to continue with killing the people there and robbing that place. He would then give an order. Are you satisfied?

MR MALAN: That's exactly just what I wanted to make sure of, that I understood you correctly.

CHAIRPERSON: Were you told from the time you were sent there that the targets you were looking for were places where you could kill people, white people, and take money, steal money, were you told to look for that sort of target?

MR BHANI: According to my report to the regional commander, I gave him a report that that was a shop and members of the AWB and the police used to go there. I was asking for approval to continue with the operation or not, whether to continue or not, whether the regional commander got approval from the Director of Operations or not.

CHAIRPERSON: You've told us that many times, what I simply want to know is, when you were sent there, you have told us you were sent to that area, were you sent there to look for this sort of target?

MR BHANI: As I've already said that any target was okay, as long as it was going to fulfil the needs of the APLA and the PAC.

CHAIRPERSON: Well what sort of target would fulfil that?

MR BHANI: As we don't differentiate between the soft and hard targets, as long as there are boers, the target was fine, as the policy said that we should overthrow the white domination, as long as there were white people, no matter in which political organisations they belonged to, as long as they were benefitting from their government, the white government ...(intervention).

MR MALAN: The question which I would also like some clarity on is, you left, you say you got instructions, presumably in Umtata, and then was deployed in the Free State. Now your lawyer didn't cover those paragraphs with you, but who gave you instructions to go to the Free State?

MR BHANI: The person who sent me to the Free State was the director. I was together with Sibande. We were going to meet Khotle, the regional commander, here in the Free State.

MR MALAN: All right. Now, when you were sent to meet Khotle, did you already have instructions from Umtata as to what to do, from the commander, from the director?

MR BHANI: Yes, I knew that this was the operation area, this is what I knew. As the people who were in the field, we would see what to do, where and when. The only thing we could do was that when we saw something, we had to report and then get an approval from the superiors whether to continue with the operation or not.

MR MALAN: Why were you sent to the Free State? Did he tell you?

MR BHANI: I was told by the regional commander that here I came, I was here to work, I was going to be responsible for whatever we were going to do. As I've already stated, I was going to take over from Khotle, I was going to be the regional commander.

MR MALAN: You mention the concept "white herenvolkism", what is your understanding of that, what does that mean? Do you know the concept? What does it mean in your understanding?

MR BHANI: According to my understanding, or according to what I heard, if I still remember well, it was the white governance, the way they were governing, the manner that they were governing this country, our country.

MR MALAN: But you don't have a specific content to that concept, "the manner they were governing the country", is that saying it's apartheid, or what are you referring to in your understanding?

MR BHANI: As the PAC, what we are concerned about is that this is our land. The murders of apartheid, we are only referring to the land that was taken by the boers through blood, they were the drivers of the apartheid, that is why the apartheid is referred to as the crime against humanity. The driver of the apartheid is a criminal. The PAC is concurrent about the land.

MR MALAN: You say in your application and also in your evidence that negotiations were already on at Kempton Park, by '93 it was far advanced, it was the follow-up after CODESA, PAC was participating, do you still believe that these attacks were necessary? Don't you see that the negotiation would have gone the same way, would probably have gone the same way, without the APLA attacks?

MR BHANI: We are a military wing, we are trained soldiers, we are trained to take orders. The PAC was the mother body, APLA was the lower structure of the PAC. As long as we didn't get an order from the PAC saying that we should stop, we are going to continue until we receive an order to cease fire, as on the 16th of January 1994, that order was given.

MR MALAN: Ja, I'm not disputing that. You are saying there was nego..., you said earlier there was negotiations at Kempton Park, you had all these attacks, you were asked how do you feel about the people that were dead, that got killed, and you said, "It happens, if it didn't happen, we would not have had the democracy". Now my question is simply, do you believe that, or, on looking back, would we not have had democracy without the attack on the Wesselsbron Supermarket? Was this necessary, not whether it was an order, I'm asking you to evaluate the fact, not to defend the order, let's accept for the moment that that order and policy was in place?

MR BHANI: There were negotiations, but at the very same time, if we remember well, in 1993, May and June, the PAC offices were raided and the members of the PAC were arrested all over the country. There were negotiations, the government was involved in the negotiations. We couldn't fold our arms, because our rights were violated, we were supposed to do something to show that the government was not serious with the negotiations.

MR MALAN: Was it not also true that attacks, the armed struggle continued after 1990, it was never stopped, the Wesselsbron attack wasn't the first attack, PAC attacked, they had the armed struggle all through during negotiations, it didn't commence with this, isn't that also true?

MR BHANI: I don't understand your question.

MR MALAN: Was the armed struggle and violence, was it not going all all through until only, as you've said, 1994, shortly before the elections? It was not a response only to the raid, in a sense the government said at the time that the raid was in response to attacks, and then more attacks came after the raid, is that not also true?

MR BHANI: The raid happened and in 1993, the APLA command said that that was the year of the great storm. As the military wing, we were supposed to carry on the armed struggle. The fact that there were negotiations at that that time, that didn't mean that we were liberated or free, that was a process, people were trying to find a solution, that didn't mean that the solution was there at the time, or they found a solution at that time, and the PAC did not give us an order at the time to suspend the armed struggle, we were working accordingly.

CHAIRPERSON: Carry on.

MR STEENKAMP: Thank you, Mr Chairman. You see, Sir, the victims' viewpoint is this, that this was a common robbery, and you did it because it was for own personal gain, nothing else. Do you have any comment on that?

MR BHANI: They have a right to say so, but it is not like that. What we were doing was to further the aims of the PAC, together with APLA. That is not true, what they are saying is not true.

MR STEENKAMP: And then maybe my last question to you, am I right in saying that no information of this sort was provided by you or any of your attackers when you were prosecuted in the supreme court, you didn't tell the Court you were soldiers of APLA, that your motivation for this was because it was part of the armed struggle, am I right?

MR BHANI: First of all, in court we wanted to be found not guilty, that's what we were trying to do. We couldn't say, "Yes, we were members of APLA, we did that", because I could see that we were going to be found guilty, I couldn't admit to that and say that, "Yes, I did this and I'm a member of APLA", I was trying to be found not guilty.

MR STEENKAMP: Sorry, Mr Chairman, just a last question. Sir, before the attack, you were the person in charge there, did you tell your other co-attackers that they must only shoot at white people, not indiscriminately, but they must go for white people? What did you tell them?

MR BHANI: Yes, I told them to shoot white people, and to take money, and after that, to withdraw.

MR STEENKAMP: Thank you, Mr Chairman.

MR MALAN: Just on this point, one of the affidavits that's been put before us of one of the victims has a statement which says that if indeed the shooting of people was your objective, you could have shot many more people, because there were many more people present in the supermarket that night. To my question, you said that there were only the eight people. Would you think about that again and may we have your comment?

MR BHANI: If there were a lot of people there, that means they were going to be affected, some of them were going to be injured or some of them were going to die. As I've already said, I didn't count that this is the first or the second or the third person, I didn't have time to count them.

MR MALAN: But you did say that you shot all the people that were present, they were only the eight people present, which you've learnt only after the time that they were eight, but you saw no other people that weren't killed or wounded, is that what you were saying?

MR BHANI: The people who were there, were the people who got injured and the people who died. I don't know about others. Maybe they were there in other rooms or something, because in court it was said that one of them was at the back.

MR MALAN: Okay, thank you.

CHAIRPERSON: Do you say you shot all the people who were in the supermarket, in the shopping area?

MR BHANI: Please repeat your question?

CHAIRPERSON: Do you say you shot all the people, killed or injured all the people who were in the shopping area, in the supermarket?

MR BHANI: Those who were in front of our eyes.

CHAIRPERSON: Yes, the people you could see in the supermarket?

MR BHANI: Yes.

CHAIRPERSON: I was thinking of taking the adjournment now and adjourning till quarter to two, if that would suit you. You can, if you want to, take your re-examination now, but I thought it's after 1:00 already, it would be easier for you to do it at quarter to two, is that all right with you?

MR MBANDAZAYO: We can adjourn, Mr Chairman.

CHAIRPERSON: Right, we'll now adjourn till quarter to two.

ON RESUMPTION:

MANGALISEKILE BHANI: (still under oath)

MR MBANDAZAYO: Good, Mr Chairman, there's only one point I ...(inaudible)

RE-EXAMINATION BY MR MBANDAZAYO: Mr Bhani, it transpired during the cross-examination that the victims are saying that there were many people in the supermarket. Now, my question will be, you indicated that you shot those people, five people and three were injured, can you explain to the Committee, how were you shooting (indistinct) you were shooting a person one by one and all those, how (long silence) - okay, let me repeat it, it transpired during cross-examination that the victims are saying that there were many people in the supermarket, more than the number which you have already indicated, the five dead and the three injured. Now, can you tell the Committee how were you shooting in the supermarket?

MR BHANI: The rifle was in automatic, we were shooting, as the rifle was in automatic, we were not shooting a person, we were not shooting them one by one, we were not placing a firearm in the forehead and shooting them one by one, we were just shooting at them automatically.

MR MBANDAZAYO: So are you trying to say to the Committee that it's possible that some of the people you missed during that shooting (indistinct)?

MR BHANI: That is possible.

MR MBANDAZAYO: Now, the other point, Mr Chairman, was that it was raised by one member of the Committee and which we did not canvass, it was put to you when you left Umtata to go to Welkom, it was asked about what were your instructions, and what I want to get from you and explain to Committee, you were told to come to Umtata by the Director of Operations, as you indicated, and that you will meet the regional commander, for what specific purpose were you, with the exception that you were also going to take over as a regional commander ...(intervention).

MR MALAN: Sorry, that's to Welkom, not to Umtata.

MR BHANI: Please repeat your question.

MR MBANDAZAYO: Can you tell the Committee what were your specific instructions, when you left Umtata to Welkom, what was your mission, with the exception of taking over from Khotle?

MR BHANI: I was deployed here, I was not given instructions about what to do when I got here, I would see that on the field, we would see what to do.

MR MBANDAZAYO: So what you are saying is that you were going to seek the target and identify, seek and identify the target on your own?

MR BHANI: Yes.

MR MBANDAZAYO: And thereafter will you have to get an approval to execute the mission?

MR BHANI: That is correct.

MR MALAN: May I just ask the question, when were you supposed to take over as Free State regional commander?

MR BHANI: There was no specific date.

MR MALAN: Who was to confirm that appointment?

MR BHANI: The decision was going to come from the regional commander of that time, together with the director.

MR MALAN: Was the regional commander at that time, was he to decide when he steps down and when you would be taking over? We're talking about Khotle.

MR BHANI: That was going to depend, because before he would step down, I was supposed to know what he knew according to this area, the area that he belonged to.

MR MALAN: Was he also from Umtata?

MR BHANI: Yes.

MR MALAN: Was he in Welkom at that time, how long had he been there?

MR BHANI: I wouldn't know, because we were not staying in the same place, but we would see each other when we meet in Umtata.

MR MALAN: When was the last time that you saw him in Umtata, how long before this incident?

MR BHANI: It was early in 1993, but I don't remember the month and the date.

MR MALAN: So he had not been in Welkom for long by that time when you arrived?

MR BHANI: It depends, because you would be in your area and then we would go back to the base where we were staying and where the director was also staying. It might happen that he was there for a long time, maybe I would meet him at this place when he was there for a particular reason.

MR MALAN: We will ask that of him when he comes to give his evidence. Thank you.

MR STEENKAMP: Mr Chairman, I believe I have already had my ...(intervention)

CHAIRPERSON: (inaudible). Thank you.

______________________________________________________MR MBANDAZAYO: Mr Chairman, I'm calling now Silimela Ngesi to take the witness stand.

SILIMELA QUKUBONA NGESI: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Mr Ngesi, you have an affidavit in front of you, which is also before the Committee. Do you confirm that the affidavit which is in front of you and also before the Committee, that the affidavit was made by you and also abide by its contents?

MR NGESI: Yes.

MR MBANDAZAYO: Mr Chairman, as usual I will start with paragraph 7, I won't go through the other portions of the affidavit. I'm reading from paragraph 7:-

Now, Mr Ngesi, can you tell the Committee whether you knew Mr Thuma by the name which is in your affidavit, or is there any other name which you know him by?

MR NGESI: Yes, there is another name that I knew, the name was Sipho.

MR MBANDAZAYO: Did you know that he's Mulelame Thuma, the surname is Thuma?

MR NGESI: I didn't know.

MR MBANDAZAYO: Now, can you tell the Committee, when you were deployed by him, you said you were deployed by him in March in Welkom, what was your specific mission for, what was your instruction when you were deployed in Welkom?

MR NGESI: The instructions that I got from this comrade was to take a taxi to Welkom, I would meet Comrade Khotle, that is Abel Khotle, I would meet him in Welkom in the township, in the black township, in the taxi rank. When I got there, the comrade was already there, he was waiting for me in the taxi rank, but I don't remember the name of the township, but the township that I was staying in, the name is Themba.

MR MBANDAZAYO: Are you saying to the Committee that the only instruction was that you go to Welkom and meet Abel Khotle, nothing else was said to you?

MR NGESI: The instruction I got from Umtata was that everything else I was going to hear from Khotle, but from our camps, I knew that I was deployed to fight for my country, but I knew that I was going to get instructions or orders from Khotle. I went to Welkom to fight for my country.

MR MALAN: I'm sorry for interrupting you, may we please stop this flashing, please.

MR MBANDAZAYO: Thank you, Mr Chairman.

Can you explain to the Committee how did this happen? Were you staying in Welkom and Wesselsbron, how, can you explain to the Committee how, what was happening?

MR NGESI: When I got to Welkom, I met the comrade and I spent two days in the hostel. From there I went with him to Wesselsbron. I then met the other comrade, Shermi, and I stayed with his friend, his friend was working in the mines and the house was empty, no-one was staying there, I stayed in that house and I made an area assessment before other comrades could arrive. After that, after I left Welkom, or after I left Wesselsbron, I went back to Welkom, because I told him that I didn't like that place, I want to stay in Welkom. He then helped me, he took me to where I wanted to stay, and in Welkom I was staying in a shack. He would then come to me for certain things, when I wanted something from him, he would come as he was the regional commander of the Free State.

MR MBANDAZAYO: Now, I'm reading paragraph 8:-

Can you tell the Committee how were you identifying targets, who gave you instruction to do that?

MR NGESI: We received instructions from Comrade Khotle, as I knew that area, Wesselsbron, because I would visit that place frequently because there were also other comrades that were staying there, and the target that I am about today, I knew that area, because I used to stay there, it's near the taxi rank. Everyone who was in the taxi rank would go and buy in that shop, even the police used to go to that shop and the AWB. That's one of the targets that Silimela Ngesi wanted to start with in that area.

MR MBANDAZAYO: Mr Chairman, if there are no questions on that paragraph, I move to paragraph 9:-

Now, can you tell the Committee how did you go to, what mode of transport, whose transport was it you used to go to Wesselsbron from Welkom?

MR NGESI: Comrade Khotle came to my place, together with Comrade Sohane, Dennis Sibande and Sebinzile. They came to me with firearms. Khotle used to keep the firearms, and he told that I would be going to Wesselsbron with those comrades. He said to me the only person who was going to give me the instruction was Mangalisekile Bhani.

ADV SOGODI: Please slow down a bit, even for the interpreter, because we can't take the notes properly.

MR MBANDAZAYO: Yes, can you go a little bit and tell them, but a little bit slower, to tell, I asked you how did you go to Wesselsbron, whose transport and who gave you instructions to go to Wesselsbron? Just slowly, because also it's difficult to get it when you are fast, as a member of the Committee indicated.

MR NGESI: As I've already said, Comrade Khotle is the one who issued the instruction to me. He was in the company of the other comrades with the firearms. He told me to go to Wesselsbron. He told me that I was going to meet with Sipho. Comrade Sipho was the one who was going to give me further instructions. I was in Comrade Sohane's car, the Datsun 1600, from Welkom to Wesselsbron. When we arrived there, Sipho was already waiting for us.

MR MBANDAZAYO: Let's go to paragraph 10:-

Can you explain that to the Committee?

MR NGESI: Yes, I kept the firearms in my place, but the only firearms that were with me were three, because the other comrade brought grenades and one pistol. I took, those who were with me, I took them to the car.

MR MBANDAZAYO: Now when you arrive at Wesselsbron ...(intervention).

MR MALAN: Who were the others in the car, you're moving on from paragraph 10?

MR MBANDAZAYO: Excuse me?

MR MALAN: Are you still with paragraph 10?

MR MBANDAZAYO: Yes, I was still with paragraph 10, but you can ...(intervention).

MR MALAN: No, sorry, no, sorry then for the interruption.

MR MBANDAZAYO: Thank you, Mr Chairman. Now, at paragraph 10, the member of the Committee was about to ask a question about that, maybe I'll (indistinct), can you explain who the others were in the car when you went to Welkom, those who you gave them firearms?

MR NGESI: When we left for Wesselsbron, it was myself, Comrade Suko, and Dennis, the driver was Dennis, but he didn't have a firearm, and Sibande and Sebinzile.

MR MBANDAZAYO: Mr Chairman, can I proceed?

MR MALAN: Can you just tell us, who was Comrade Suko?

MR NGESI: What Comrade are you talking about?

MR MALAN: You talked about yourself and Suko, who is Suko?

MR NGESI: Sebinzile.

MR MALAN: Is that Sebinzile?

MR NGESI: Suko is Sebinzile.

MR MALAN: And Dennis, is that Sibande?

MR NGESI: Yes, that's him.

MR MBANDAZAYO: Can I proceed, Mr Chairman? Now, you arrived at Wesselsbron and you met Bhani, Mangalisekile Bhani, and he briefed you about the operation and you went to Wesselsbron Supermarket. Can you then, in your own words, tell the Committee, what role did you play when you arrived at the supermarket, what did you do?

MR NGESI: When we arrived there from Mnyagene, before we left, we were told that the target was the supermarket, and I knew at the time that that was the target and I was anxious to get there. The first person to get inside was Bhani, I was the second one and the third comrade, Sebinzile, followed. Comrade Bhani issued an instruction to fire. I started shooting. I was shooting everything that was in front of my eyes. After that, Bhani told us to take the money. We didn't ask questions, because the order was already issued, we were told to fire and take the money. He was the last person to leave the supermarket. That was the end, we went back to Mnyagene township.

MR MBANDAZAYO: Now, I want you to comment, there was evidence in court to the effect that you were the person who was given orders, in fact during ID parade you were identified as the person who was giving orders whilst you were inside the supermarket. What do you say to that?

MR NGESI: They were false to identify me, because I was taller, therefore they thought that I was the one who was responsible for issuing instructions, because Bhani was not yet arrested at the time, I was the one who was already arrested, therefore they had to say I was the one who issued the instruction, but that was not true. They got the wrong information, because they were told that it was Ngesi, but Ngesi was just Bhani's assistant. Therefore if Bhani happened to be injured at the time, I would take over, but fortunately we came back all alive, all of us.

MR MBANDAZAYO: Now, the incident took place and you left after that incident and people died as a result of your actions. Now, what do you say now when you look and face the victims of that incident, what have you to say to the Committee and everybody who is here regarding that incident?

MR NGESI: Today, we have a democratic government, though we are still in jail, I'm happy that I participated in the struggle. Anyone who is involved in the war, it's obvious that there's death. The PAC organisation was formed in 1959, it was not there to satisfy the settlers regime, but it was formed to satisfy the indigenous of the land, not the settlers. If you don't understand that, you can ask anyone. 11 months after it was formed, it was banned, in 1960, that was on the 21st of March in Sharpeville, people died.

MR MBANDAZAYO: The victims are saying that what you did there has nothing to do with politics, it was just pure robbery and callous murder on your part, what do you say to that?

MR NGESI: They have a right to say so because they were the people who were affected and they were the same people who were benefitting from the old regime, the people who were drafting the laws were not affected, because they were staying in parliament, they were protected and those people who were affected were those who were affected, but if they did take a position about this and try and fight for unity, that would be better. They don't belong to this country. We were born here. There's a difference between a person who takes the land and a person who was born in that particular land, but if they were in our shoes, if they were feeling the pain, they would try to talk to the government. For an example, in Uitenhage, people died, that was not a revenge, our operations were not meant to revenge, because of the deaths of the people in Uitenhage, that is not a revenge, but our aim was to push the struggle. I like PAC, I was not forced to join the liberation army, but I was feeling the pain, then I decided to join.

]MR MBANDAZAYO: Is there anything that you left out, you would like also to say before the Committee?

MR NGESI: Yes, can you hear me?

MR MBANDAZAYO: I'm saying is there anything you want to add or whatever you want to say to the Committee which you have not said which you think would be relevant if you put it to the Committee?

MR NGESI: Yes. As we have applied for amnesty, for us being here, though we don't say that we ask for forgiveness, we can then ask for forgiveness, because the others are enjoying the fruit of the struggle, they're enjoying liberation, and we are also in prison and our families are suffering, but the people who were oppressing us, we are all the same, we are united in this new South Africa.

MR MBANDAZAYO: That is all, Mr Chairman.

CROSS-EXAMINATION BY MR STEENKAMP: Sir, can you just indicate to us exactly what were your orders on the day of the incident, exactly what were you told to do?

MR NGESI: Just clarify, what instructions?

MR STEENKAMP: Did you receive any instructions, from anybody, before embarking on this incident?

MR NGESI: No. The only instruction that I got was from Khotle to move to Wesselsbron, and meet with Bhani. Bhani instructed me to go with him to attack at Wesselsbron. That was all.

MR STEENKAMP: Now that's exactly what I want to know, what exactly did Bhani told you to do, only to rob or, what did he tell you?

MR NGESI: Bhani said, "Let us go, there is a target, I identified this target and I want this target to be attacked and when we arrive there, we will kill the people and get their money and take the money". We did as he told us, we shot at the people there and we took the money and we left the place.

CHAIRPERSON: What weapon did you use?

MR NGESI: R4 rifles.

CHAIRPERSON: Where did you get it?

MR NGESI: What do you mean by where did we get them?

CHAIRPERSON: Where did you get the R4 from?

MR NGESI: Khotle gave them to me and I kept them.

CHAIRPERSON: When did he give them to you?

MR NGESI: Just before the operation at Wesselsbron.

CHAIRPERSON: Well did he give you them, or did he give you a weapon?

MR NGESI: He didn't give me a weapon, he gave me three weapons. Those that were with me were three.

CHAIRPERSON: Yes?

MR STEENKAMP: Thank you, Mr Chairman. Sir, you said in your evidence in chief that you started to shoot at everything that was in front of your eyes, is that correct?

MR NGESI: Yes.

MR STEENKAMP: So you were shooting indiscriminately, in other words you were shooting, you didn't identify a specific group of people, you start shooting at everything and anybody in the shop, do I understand you correctly?

MR NGESI: That's correct, I did that.

MR STEENKAMP: So you did not make a distinction between the white people and the black people, is that correct?

MR NGESI: There were no black people there.

MR STEENKAMP: You see my information is, and if necessary I will lead evidence to the effect on behalf of the victims, that in fact there were black people in the shop. Can you dispute this?

MR NGESI: There were no black people in the shop.

MR STEENKAMP: Is it also correct that you actually started shooting at people after they were told to lie down?

MR NGESI: The only order that I got from Bhani was to fire, open fire.

MR STEENKAMP: So you were there. Were the people lying down when you started to shoot them? Do you understand the question?

MR NGESI: They had their hands in the air, they had their hands up in the air.

MR STEENKAMP: In other words they were standing, they were not lying down?

MR NGESI: Certainly.

MR STEENKAMP: I'm also informed by the victims that this supermarket is predominantly visited and supported by the black community, to a large extent, most of the buyers are 90% black people, do you know this, or can you dispute this?

MR NGESI: I didn't want to know who were the customers, but I went there to kill. If the blacks were buying there, were buying in that shop, were customers in that shop, that was their right to do so, but when I went there, they were not there.

MR STEENKAMP: Can you tell the Committee, were all the people, all your members of this specific attack, were everybody arrested and prosecuted for this incident, or not?

MR NGESI: It's not all of them who were arrested.

MR STEENKAMP: Who was not arrested, can you give us their names?

MR NGESI: Dennis Sibande, Sebinzile, who was called Suko at the time, two of them.

MR STEENKAMP: Do you know why they were not arrested?

MR NGESI: I don't know.

MR STEENKAMP: Sir, what was the policy of APLA or the PAC at that stage, only to kill, to kill people, unarmed people, or what exactly, how did you understand, what was the policy of APLA or the PAC at that stage, regarding this struggle you were fighting?

MR NGESI: Please explain, when you are talking about people, are you talking about the Europeans or Africans? Even though they were Africans who were working for the government, if they were there also, those Africans who were working for the government, I would shoot them.

MR STEENKAMP: So, hypothetically, if there were black people in the shop that night, you would have killed them as well?

MR NGESI: I don't want to talk about something that didn't happen. The black people were not in the shop, let us not talk about that. If they were there, or black policemen, if they were there, I would kill them. Black people were not there. Let us not talk about that.

MR MALAN: Mr Ngesi, no, I mean that's not satisfactory. If you're prepared to talk about policemen that were not there, then you should talk about people that were not there as well, non-policemen.

MR NGESI: The blacks were not there.

MR MALAN: Were the policemen there?

MR NGESI: There was only one policeman.

MR MALAN: A black policeman?

MR NGESI: It was not a black policeman.

MR MALAN: But I heard you say if there was a black policeman, you would have shot him there, is that correct?

MR NGESI: That's correct.

MR MALAN: Now the question of Mr Steenkamp is, if there other black civilians, would you have shot them

MR NGESI: If there were policemen, I was going to shoot them, but if they weren't police, I wouldn't.

MR MALAN: Sir, I'm informed, and if he says he will lead evidence, that at your trial, a black employee of the shop owner actually testified that he was in the shop and he was, there was an attempt to kill him as well, he was a black civilian working for the shop owner, can you remember that?

MR NGESI: Yes, I remember.

MR MALAN: But why don't you tell the Committee this? You just said now, maybe I'm wrong, but you just indicate there was no black people. At your trial, a black person who worked in the shop testified.

MR NGESI: I want to clarify this part about this black person. They say this person was employed there in the shop, I don't know that, but in the scene there was no black policeman. Maybe that person, as he was working there, he was trusted, he was trustworthy to them, and he was made to identify at that identification parade. I was taken to the scene, maybe that Phuli (?), or that person saw me during the pointing out, maybe he was given a photograph of myself and he was told to take a closer look at me, so that he could identify me. I'm sure he was promised something, that is why he did that, that is why he sold me out, that's what I believe in, that is why I didn't even talk about that Phuli, because Phuli identified me as a person who was there, though I know very well that there was no black person in that scene. If Phuli was there, he was at the back where they say he was staying, but he was not in the scene.

MR STEENKAMP: So when you were asked this question, why didn't you supply this information to the Committee, that there actually was a black person in the shop, you said there was no black person in the shop, no civilians?

MR NGESI: I'm still saying that there was no black person in the shop.

MR STEENKAMP: You see the victims are saying that your attack was focused on unarmed people. Now my question to you is, you are saying you were APLA soldiers, why didn't you focus your attack on the security police, or the police, or the people who was responsible for enforcing the laws of the land as it was at that stage, why did you decide on an unarmed shop, where people were working and selling to black people to anybody, why didn't you focus on them? You were soldiers?

MR NGESI: Those people were armed, then we didn't see their arms on that particular day, but we heard, through the newspapers and the radios that one lady tried to take her firearm, they say there was an armed policeman, but we didn't see him, nor the gun. A person who escaped there had a revolver, a triple eight, he shot in the air about three times, maybe he was trying to call the police. That's the report we got from the newspapers and the radios, even in court, that was the information that was given. Even if the police were there, we were going to kill them. The police station was about 100 metres from the scene, it's not far, it's only two streets from the supermarket. They heard that there was a shooting, but they didn't come, they didn't go to that police when we were there.

MR STEENKAMP: So on your own version, on your own version, and that of the previous applicant, not a single person in the supermarket resisted when you decided to rob the shop, on the court's evidence that was provided to the judge sitting at the hearing, people were lying down, on your version they were standing up, not resisting at all, in other words they were unarmed, why are you saying now they were armed?

MR NGESI: I'm still saying that they were armed. We won't take the story from the court and combine it with this story. In court we wanted to save ourselves, we wanted to be acquitted. This is not the court of law.

CHAIRPERSON: Did you see any arms there, because as I understand what you've been telling us now is something you heard or read about later?

MR NGESI: No, I didn't see any arms.

MR STEENKAMP: Were you informed by Bhani or anybody that these people will probably be armed, before the incident?

MR NGESI: The only instruction we got from Bhani was to attack the police station. As a person who once stayed there at Wesselsbron, I used to see the people armed there.

MR STEENKAMP: Did Bhani tell you only to kill white people, or what did he tell you? 

MR NGESI: He said we must fire, open fire.

MR STEENKAMP: So he didn't tell you only to kill white people, is that correct, do I understand you correctly?

MR NGESI: That's correct.

MR STEENKAMP: Then maybe I'm wrong, but why is your version totally different from that of Bhani?

MR NGESI: What's the difference?

MR STEENKAMP: The previous applicant testified that their main focus was to kill the white people, the boers as he called them, and that was his instructions. Now you're saying this is not correct. Do you understand the question? Now my question to you is, why... (intervention).

MR MBANDAZAYO: Mr Chairman, I don't think that's - if my learned friend can rephrase his questioning, because the applicant didn't say that it's not correct what was said by Bhani. He was asked what was he told by Bhani, and he said he said we must fire. Now the question is, at what stage did he told them to fire, whether when they were briefed, because my understanding is that they were talking about what actually happened at the supermarket.

MR STEENKAMP: Mr Chairman, I'll... (intervention).

CHAIRPERSON: (Inaudible)?

MR MBANDAZAYO: In the supermarket he was told that, "Fire"... (intervention).

CHAIRPERSON: (Inaudible)?

MR STEENKAMP: Mr Chairman, I'll rephrase the question then, so that my learned colleague can also understand. It seems he's got problems with my questions. Sir, exactly, my fourth time I'm asking you, exactly what were your instructions from Bhani, were your instructions to kill people or... (intervention).

MR MALAN: Mr Steenkamp, sorry for interrupting, I think the misunderstanding is, instructions at what stage are you referring to, before they moved to the supermarket, at the supermarket, if you could just clarify this in your question.

MR STEENKAMP: Thank you, Mr Chairman. Before the incident at the supermarket, were you briefed by Bhani on the target you're going to attack?

MR NGESI: He told us about the target, he told us that we were going to the supermarket just before we left. The second instruction was when we were inside the supermarket, when he instructed us to fire. There was no other instruction that he issued thereafter. We went back to Mnyagene location thereafter.

MR STEENKAMP: Did he at any stage, at any stage, this is now prior the incident and during the incident, inform you only to attack white people? Do you understand my question?

MR NGESI: Never, he never gave us that instruction.

MR STEENKAMP: Now you see, this is my question, and maybe I'm wrong, but as far as I remember Mr Bhani's evidence, this is not what he said. He said the focus was only to kill white people. Now my question is to you, why are you differing from what Bhani said in his evidence before the Committee? Do you understand my question?

MR NGESI: Can you please explain your question? If you say the focus was on white people, what do you mean? I don't get your question?

MR STEENKAMP: You see, Sir, the previous applicant testified that the focus was, or the aim was, to kill white people in the shop, you heard that, you were sitting there, do you remember that?

MR NGESI: Yes, I remember, I heard so.

MR STEENKAMP: Now you're saying he never gave you such an instruction, is that correct?

MR NGESI: He didn't tell us to shoot white people before getting to the supermarket, the instruction came when we were in the supermarket, he gave us an instruction to shoot and I shot everything that was in front of my eyes.

MR STEENKAMP: In other words black or white people, anybody that was in the shop, not only white people?

MR NGESI: There were no black people, we didn't find black people there, there were only whites.

MR STEENKAMP: Can I just ask you... (intervention).

ADV SOGODI: Sir, in your affidavit you mentioned that you were a unit commander and you had undergone military training in Tanzania and Uganda, and then you came back into the country. Now what I want to know is that, in relation to targets, what was the policy that - was there any policy that you knew of insofar as APLA was concurrent in relation to targets, what criteria was used to identify targets by the PAC or by APLA?

MR NGESI: As I've already said, the commander identified the target, I would take instructions from the commander.

ADV SOGODI: My question is, in identifying targets, what criteria would be used as a matter of policy by the PAC, was there any policy used to identify targets, and if so what criteria were used to identify those targets?

MR NGESI: An example, the supermarket was chosen because it was frequented by the police and AWB members, and they were different, the AWB members were different, because they had badges in their uniforms, and the police had uniform, that's the example of a target.

MR MALAN: May I just follow that up? Wouldn't a post office also then be a target, wouldn't AWB members go to a post office, wouldn't every shop then, on that basis, be a target?

MR NGESI: If we would find them there, they would be targets, even the post office would be a target.

MR MALAN: The question by the Committee Member was, the criteria to identify a target, and then you said police and AWB, but police and AWB frequent every possible public facility, wouldn't all public facilities then be a target? That's really the question. What is the relevance of the police and AWB?

MR NGESI: Murder and "Roof" wears uniform, wears privately, not uniform, but if you happen to know some people there, you won't say that just becuase this one belongs to this group, but as long as you know that this person is a policeman and he is your enemy, you would shoot anyone who is next to him, even if it's black policemen, they were benefitting from the old regime. I was forced to kill them.

MR MALAN: No, you're not following, the qeustion was, when you identified a target, what was the criteria used to identify a target, would you try to answer that qeustion again, what criteria did you use in identifying a target?

ADV SOGODI: Sorry, may I just ask this question, I'll put this question to you in Xhosa, I see that you are Xhosa speaking, you speak Xhosa?

MR NGESI: Yes.

ADV SOGODI: The qeustion is, I am going to put it in Xhosa, when you are about to identify your target, there are things that you look for before, what are those things that you use to identify, what are those things that you would look for in order to identify your target?

MR NGESI: The way we used to identify a target, we would check, for instance Wesselsbron, we knew that there were a lot of boers at Wesselsbron, and we would find them there, because the supermarket at Wesselsbron would close at 9:00 p.m., even the police would be there at the time, because they were patrolling the place. Those are the things that we would look for. If there's a lot of policemen or a lot of boers, we would identify that place as our target. So if I find a place with a lot of boers, I just choose the right time and come and attack those boers.

ADV SOGODI: Would it be necessary for that spot to be a place that is used by the public?

MR NGESI: That would depend on a person who would be identifying that target, he's the one who would be in a better position, who would know what people are frequenting that place. Like the golf club, the owners of the land wouldn't be affected, but only the oppressors who would be affected. Bhani chose Wesselsbron, because he knew that those who were oppressed were not there, it's only the oppressors who were there. I hope you'll understand it that way.

ADV SOGODI: No, I do understand. All we need is to get from you the policy, APLA policy, as far as identifying the targets?

MR NGESI: If we want a target, the commander would go to that particular town and inspect the place, maybe he would find a place that is frequented by the boers and think to himself that if I hit this place, the government would feel the pain, rather than attacking one person, so if they die in large numbers, they would protest. For an example, at Wesselsbron, after that attack, the people marched, those people marched and they realised that APLA was just around the corner.

MR MALAN: At this target, the supermarket, was there a taxi rank there?

MR NGESI: That's correct.

MR MALAN: Right at the supermarket?

MR NGESI: There's a street in between, it's just in the front opposite of the supermarket.

MR MALAN: Would the people from the taxi rank, public there, arriving from taxis and coming to taxis, would they not frequent the shop?

MR NGESI: They were not even there, because the taxis stop working at about 8:00 p.m., the taxis that are going to the townships.

MR MALAN: So after 8:00 there are no taxis?

MR NGESI: No taxis.

MR MALAN: Thank you.

MR STEENKAMP: Thank you, Mr Chairman. Maybe just a last question to you, what exactly were your instructions regarding the robbery? Did you have previous information that there will be money in the shop, a large amount of money, or how did you get the information that there was actually money in the shop, did you discuss it or how did it happen?

MR NGESI: No, we never discussed that.

MR STEENKAMP: Didn't you take your own briefcase with you to the shop when you commenced the robbery, didn't you take your own briefcase with you inside the shop?

MR NGESI: No.

MR STEENKAMP: You see, the information I have is that when you entered the shop, you had your own briefcase?

CHAIRPERSON: Can I clarify, do you mean him personally, or the group?

MR STEENKAMP: I'm sorry, Mr Chairman, I mean the group. One of you in the group had a briefcase in his possession wherein the money was then put, the money that was robbed in the shop. Do you understand that?

MR NGESI: Yes, but that never happened, there's nothing like that.

CHAIRPERSON: Where was the money put?

MR NGESI: In our pockets.

CHAIRPERSON: Do you mean you all took pocketfuls of money?

MR NGESI: That's correct, there were cheques, it was about R4 000,00, there were cheques also.

CHAIRPERSON: Yes. There were how many of you?

MR NGESI: You mean inside or, please clarify your question?

CHAIRPERSON: Inside.

MR NGESI: There were three of us, there were three of us.

MR MALAN: Did you take the money after the shooting, or before the shooting?

MR NGESI: After the shooting.

MR MALAN: Who opened the till for you?

MR NGESI: There's a lady who was there, who was inside, she opened the till.

MR MALAN: Before she was shot?

MR NGESI: Surely.

MR MALAN: Now, did you ask her to open the till?

MR NGESI: Yes, we did.

MR MALAN: And when did you take the money, when she opened the till?

MR NGESI: She pressed the till, I took the money, and she pressed another one, and the other one took the money and she pressed another till and the other comrade came and took the money, we took the money to the commander.

MR MALAN: So you took the money before you shot the people?

MR NGESI: Just before she was killed, the others were already shot at, she was the last person to be shot at, we took the money before we shot at her.

MR MALAN: Why did you spare her? You got the order to shoot from Mr Bhani, and you say you shot everything in front of your eyes, why didn't you shoot this lady too?

MR NGESI: I was on the left-hand side, she was on the right-hand side, when I came in, I came through the left-hand side, next to the tills, she was standing next to a till. I saw her when Bhani went back and she came and opened all the tills, and we took the money and we shot at her, we left the place.

MR MALAN: I find it difficult to understand why you did not tell us this in the beginning, because your version and Mr Bhani's version was, went in, got an order to shoot, shot everybody. You never told us that one lady was only shot later. Is it not that you perhaps took the money, ordered - as the version of the victims, ordered all the people to lie down, then indeed took the money and then shot them, isn't that how it happened?

MR NGESI: No, we didn't take the money first.

MR STEENKAMP: Thank you, Mr Chairman. Can I just ask you a last question? Except for the money and the cheques, did you take anything else out of the supermarket, food, clothing, the personal belongings of any of the victims, or was it the only the money and the cheques?

MR NGESI: We took money and the cheques only.

MR STEENKAMP: Any food?

MR NGESI: No.

MR STEENKAMP: Thank you, Mr Chairman, no further questions.

CHAIRPERSON: The money, was it notes or coins?

MR NGESI: It was bank notes and coins, and cheques.

CHAIRPERSON: And you say it all went into your pockets?

MR NGESI: Yes.

CHAIRPERSON: One other point I would like to clarify, I'm afraid I'm a little confused by this, you shot all the people who were there?

MR NGESI: Yes.

CHAIRPERSON: Who identified you at the identification parade, and pointed you out?

MR NGESI: Though I didn't see the person, but in court, Phuli is the one I know, there were eight people who went to the identification parade, four people pointed me, the only person that I got to know was Phuli, I don't know the names of the other three persons who pointed me.

ADV SOGODI: Sorry, Chairperson, this Phuli who pointed you, you say "the only person I knew was Phuli who pointed me", did you know him before the shooting, or did you know him after the shooting?

MR NGESI: I knew him when I saw him in court and I got to know his name, that he was Phuli.

ADV SOGODI: And what about the other three people, didn't they come to court?

MR NGESI: Yes, they came.

ADV SOGODI: But why do you single out Phuli as the person you knew in court, why do you single him out?

MR NGESI: It's because he had an African name, the name that I'll never forget, the others' names I forgot, I couldn't remember their names.

ADV SOGODI: Were they black or white people?

MR NGESI: They were white.

MR STEENBERG: Chairman, I can just confirm that the Phuli the applicant is talking about, is in fact the person that pointed the applicant out in court, and he was one of the black employees in the shop, who actually saw the applicant in the shop. A witness to this effect will be called.

CHAIRPERSON: (Inaudible)?

MR STEENKAMP: Thank you, Mr Chairman, yes.

RE-EXAMINATION BY MR MBANDAZAYO: Mr Ngesi, you were asked about identifying of targets, can you tell the Committee, during your training, were you told who was your enemy?

MR NGESI: Yes.

MR MBANDAZAYO: Now, tell the Committee, who was your enemy?

MR NGESI: As we knew that we were oppressed and we were oppressed by the boers, although there were Africans who benefitted from that government who oppressed us, but the enemy, our enemy was the oppressors. We didn't differentiate in colour, but the people who were oppressing us were boers. There were Africans who were working for the boers who were working against us, who were working against the people who wanted liberation, they were the people who were benefitting from the past government.

MR MBANDAZAYO: If I get you correctly, you'll correct me if I'm wrong, that your enemy, your training you were told that they are boers, you were told boers or white people or what was it, white or boers, or do you use the same words for both?

MR NGESI: We used the same word, because we use it in Xhosa, we were using it in Xhosa, the boers were the people who were oppressing us.

MR MBANDAZAYO: Now, are you trying to tell the Committee that since you were told that, you knew that the people who were oppressing you were boers, and then your targets were selected in that manner, that was the criteria that was used to select the targets, that the people who were oppressing us are the boers, you selected your targets in that manner?

MR NGESI: That is correct.

MR MBANDAZAYO: Now coming, the last point, coming to the supermarket, the shooting, you told the Committee that the first thing that you did in the supermarket was to shoot, am I correct?

MR NGESI: That is correct.

MR MBANDAZAYO: Now, with this last person who opened till for you, at what stage did you realise that she was not shot at?

MR NGESI: I saw her the time when I was stepping back, she was in the till that was in the right-hand side, I realised that there was a woman there, we then grabbed her, she came to open the till, and there were flowers in the window, so you couldn't see a person on that side, you would see a person when you were inside.

MR MBANDAZAYO: So you are saying to this Committee there is a possibility, you don't have the picture of the supermarket, you know you have it, that there's a possibility that it may be true that some people you did not see them during the shooting, were hiding, there were other people who were there, but you didn't see them at that particular point in time when you were shooting, is that possible?

MR NGESI: Yes, that is possible, because at the back there was a bakery, so you couldn't see the people at the back, you could only see the people who were in front.

MR MBANDAZAYO: Thank you, Mr Chairman, I have no further questions.

MR MALAN: May I just, Chair, pursue this question again in re-examination? Why do you think Mr Bhani, when he was, and you heard his evidence, is that correct?

MR NGESI: Yes.

MR MALAN: He was, on more than one occasion, on several occasions in fact, asked about the people in the store, and he said he immediately said, ordered you to shoot, which you did, and he said, "They killed five, they injured three", and he said, "Those were the only people in the store", why do you think Mr Bhani did not make reference at all to this lady who after the shooting opened the till and then was individually and separately shot, why did he not mention that?

MR NGESI: He did say that the people who were there were the five people who were killed, and that is true, the three people were injured, and this lady is included in that five.

MR MALAN: I'm sorry, this lady was killed?

MR NGESI: Yes.

MR MALAN: But Mr Bhani said, I in any event understood his evidence and I'll check the record again, to be saying that these people were shot at, all eight of them, immediately at the first occasion when he ordered you to shoot, he did not refer to a lady opening the till, at a later stage shot, he didn't say anything about that. Wasn't that important?

MR NGESI: Please repeat your question?

MR MALAN: When we talk about understanding what happened at the store, the picture we have from Mr Bhani is that he went in, that you came in, that he ordered you to shoot, that there were eight people, white people, in the shop, that the eight were shot at, five died as a result, and three were injured but did not die, that's his story. His story, as I understand it from your evidence is, you walked in, there were seven people, you shot, you killed four of them, three happened to be injured, then there was another lady, who wasn't shot at, she was taken to the till, she opened a number of tills in succession, you took the money, and then shot the lady. Does that not sound like a different story, and I know I'm paraphrasing the picture, is it not a different story?

MR NGESI: That is not a different story.

MR MALAN: Do you think Mr Bhani told this Committee the same story you told us, does it sound the same?

MR NGESI: The people who died there were eight, they were five, and the three were injured, three were injured and five were killed.

MR MALAN: My question really relates to one single incident, which is an important difference, why do you think Mr Bhani did not tell us about a lady who wasn't shot immediately with the others, but was taken out alive from wherever, taken to the tills, forced to open the tills, take out the money and then shoot the lady, why did Mr Bhani not tell us the story like that, becuase this is how you told us the story?

MR NGESI: Let me give you an example, when we entered the supermarket there were people on the side, on the left side, and on the right side there was this lady. When Bhani gave an order to shoot, we shot the people in front of us. When I went back, I saw this lady. I then grabbed her to open the tills and after that she was shot. All of them, the five of them were killed and three were injured, that's how it happened. I saw this woman, that there is another person. I then took her to open the tills. After that, she was shot.

MR MALAN: But why didn't you shoot her immediately? Weren't your instructions from Bhani to shoot everyone?

MR NGESI: I wanted money.

CHAIRPERSON: Was it your deliberate intention not to shoot her so she could open the till?

MR NGESI: At the time we were shooting, we did not see her, because she was on the right-hand side, I saw her when I was stepping back, when I was looking at the door. I then took her to open the till and she did and we took money and we shot at her.

CHAIRPERSON: I don't know if this will help at all. You followed Bhani into the supermarket, is that correct?

MR NGESI: Yes.

CHAIRPERSON: Did you see what he did when he first went in?

MR NGESI: Yes, I did. He met a woman who was going outside. He then pushed her inside. I then went in and I took my position, and he then gave an order for us to shoot.

CHAIRPERSON: Where did he push this woman?

MR NGESI: Inside the supermarket. The woman was going out... (intervention).

CHAIRPERSON: She was not the woman who opened the tills, or could she have been?

MR NGESI: No.

CHAIRPERSON: Thank you.

______________________________________________________MR MBANDAZAYO: Mr Chairman, I'm calling Abel Khotle.

LERATO ABEL KHOTLE: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Mr Khotle, you have an affidavit in front of you and it's also before the Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?

MR KHOTLE: What appears on the affidavit, it's the truth.

MR MBANDAZAYO: Now, Mr Chairman, I'll go to paragraph 5 of his affidavit:-

Now, can you tell the Committee, how did it come about that you seek an approval from the Director of Operations for the operation at Wesselsbron?

MR KHOTLE: Firstly, I would say, as Mr Khotle, I was a member of A P L A, that's APLA. APLA has a chain of command, and then as the regional commander I was a subordinate and there were those who were above me, I had to consult with them before I do any commission or any operation. There are two things. One, (Sotho), I would receive some instructions, then I would follow those instructions. Secondly, of that chain of command... (intervention).

CHAIRPERSON: Sorry, may we ask you to stick to one language, whether you prefer English or whatever, but it's very difficult to follow the translation and to interpret if you switch languages please.

MR KHOTLE: I would speak Sotho. What I want to say is that there are two things, if it happens that I'm deployed in a particular area, I would receive instructions from above that you should do certain operations up to a certain point. Secondly, because of the respect for the chains of commands, I must by all means consult with those above me before I execute any operation in any particular area. Shortly, those are the most important issues. It is because of the respect of the chains of command, as APLA was a military institution, that is why I have to report at all times to those who are above me before I do any operation, though I have a limited discretion to do certain operations.

MR MBANDAZAYO: Now, Mr Khotle, can you, with regard to this one, Wesselsbron Supermarket operation, can you tell us what actually took place before you sought the approval from the Director of Operations?

MR KHOTLE: Firstly, at the time when I was in this province, after being deployed in this area, I was able to make assessments of specific areas, and I was able to make assessments of the region as a whole. That is a requirement so that every APLA soldier, when he arrives at a certain place, he must do that assessment of that particular area.

What happened is that before the Wesselsbron attack, my comrades, that is Ryber, who is Bhani, arrived, as I was expecting him from Umtata. When he arrived, I took him from Welkom to Wesselsbron at Mnyagene Township. Mnyagene Township I sought accommodation for him and then he found that accommodation. It was within his scope of his work that when he arrived in a particular area, he should make his own assessment, then he should look for areas where he, I would use this word, say potential targets.

What happened is that he stayed in Mnyagene for some time, then he returned to Welkom and reported to me that he was able to identify a certain place, he said this is the right place that that place should be attacked. He gave me reasons why that area should be attacked. The first reason was that during the time when he conducted his reconnaissance or that information-gathering, he was able to find out that that place was frequented by security police and then again by members of AWB.

After he reported to me and gave me the full details of that particular place, I was obliged to make my own reconnaissance at the supermarket. This incident happened in June. In the late May or the last week of May, I started to continue with my reconnaissance. I did them in two days, that is Friday and Saturday. It is within these two days that what I heard from Bhani is true.

On the first week of June, I departed from Welkom on Friday and I went to Wesselsbron. I left on Friday deliberately late in the afternoon, around six to seven o'clock, knowing that the taxi would take me next to, would pass next to the supermarket. I alighted the taxi at the taxi rank, becuase they were waiting for taxis from the township, because that taxi started from Odendaal, Odendaalsrus to Wesselsbron, and it did not go through the township. I stayed there for a while, waiting for a taxi from the township. I went to that supermarket. At the door, when I entered, I met one of those people who were there and who was armed with a pistol. He was wearing private clothes. I entered inside. I went to the fridge, I took a drink, I took some fruits.

At the time whilst I was taking those cooldrinks and the fruits, I was looking around the area. I paid at the counter and when I went outside, that person whom I found at the door who was having a pistol, that is the time when he was leaving the area, and thereafter I left the store. Outside I saw a taxi which came from the township. Then I entered into that taxi to Mnyagene Township.

On Saturday, I went back to Welkom late in the afternoon. I did that deliberately, because I wanted to pass again at that store. I went there and waited for taxis from Wesselsbron to Odendaalsrus where I would embark on a taxi to Welkom. I went inside again and looked inside. On that day, I saw one person who was talking with other people, and he was having a pistol, but he was not the same person as the one I saw on Friday. I passed and I went to Welkom.

On the second week, if I remember well, I returned. I arrived at the same time late in the afternoon, that was on Friday. I found the situation being the same, there would always be one person who was armed. I went to the township. The following day I left early in the morning. On Saturday I returned to Welkom. When I arrived in Welkom, I took a taxi to Umtata. Then I met the Director of Operations, that is Comrade Leklapa Mpashlele. I explained to him about the situations in Free State and about that particular target in fact, Wesselsbron. In a discussion, we were able to identify that place as a potential target. Then he gave me an approval that I should return and instruct the unit which was present, which was led by Comrade Bhani, that it should execute the operation. That's how the operation was executed.

MR MBANDAZAYO: Now, can you tell the Committee whether before the operation took place, was there any other person who knew about the operation except yourself and Bhani?

MR KHOTLE: The other person who knew about the operation is Comrade Mpashlele. There is no other person except we three.

MR MBANDAZAYO: Are you saying to the Committee that there is no member of the unit, maybe that you told one member of the unit that there's going to be this operation at Wesselsbron?

MR KHOTLE: There is no other person about this operation except Comrade Sibande, that is Dennis, who did not know about this operation. What I went there is that I should come with a deception plan. The deception plan was that this member should be informed that in Welkom there is a place which should be attacked, not in Wesselsbron. That's what I did, because I wanted to safeguard the security of the target and the security of the people who are going to take part in the operation.

MR MBANDAZAYO: Can you tell the Committee, why did you come up with the deception plan to Dennis Sibande?

MR KHOTLE: In many cases, particularly in my military training, they said each and every comrade should be, I should trust him only 90%, I should reserve the 20%(???). Those are the aspects of my training, that is why that if it happens that we should have a disturbance, or the compromise of the information, or the leak of information about the target, there should be a way of misleading the security forces if it happens that if somebody leaks the information about the presence of APLA and the presence of the PAC in a particular area. That is why I brought the deception plan. The most important thing is that, firstly, I safeguarded the security of the potential target, and then I again safeguard the security of the team which would take part in the operation.

MR MBANDAZAYO: As a regional commander, you gave the order for the attack at Wesselsbron supermarket. Now, can you tell the Committee your reasons, or how did you arrive at that decision that this must be attacked?

MR KHOTLE: The first reason is that we, as Africans in general, when I talk about Africans, I don't want to use the word black, because if you look at me, I'm not black, so I would choose this word black, but we as Africans in general, we were oppressed, and in that oppression, it was clear that who are our oppressors, those are European settlers.

What I want to say that to identify or select a target in white South Africa, it was not a problem to us, becuase it was clear who are our oppressors, that is the Europeans. This attack happened, looking that it is not possible for us to achieve our liberation unless those who benefit from their oppression, all those who are represented by, or they represent oppression, and those who support and maintain the villas of white supremacy, those people to us are targets, because we, as Africans, we were more important than any other person who is not an indigenous citizen of this country or in Africa as a whole.

It was clear that Europeans came, settled in our country and they disowned us of the ownership of this country and oppressed us, they harassed us and did all those things. So that in itself, they put themselves as a target to ourselves. So it was not a problem to identify a target. What I would say is that the most important issue is that it was a way in which we would be able to fight the corruption and the oppression and the oppressors themselves. It was the way in which we would be able to retain or attain our identity, and it was the way in which we would be able to attain our land and our government. So anything which is represented by Europeans in Africa, and those who represent oppression, to us are a target.

CHAIRPERSON: I do not want to stop your client from making his political remarks, but the question simply was how did they select this target, not how did they select targets in general. Will you please try to keep him to the point.

MR MBANDAZAYO: Thank you, Mr Chairman, I was about to intervene at that point. Mr Khotle, we know, what I wanted was this specific, this target, this Wesselsbron target, that's one specific incident which we are about here, this application is about the Wesselsbron supermarket, so I want you to confine yourself to the Wesselsbron supermarket.

MR KHOTLE: We were able to identify this Wesselsbron target among other targets. We did not have resources which we will be able to choose other targets which were confirmed before, so this would be the target which would enable us in a position to attack other targets. So that is why we were able to identify this target, because it will give us resources, we would be able to get money and use that money to carry out the execution of other targets. That is why we came to that conclusion. I don't know if I've answered your question, Sir.

CHAIRPERSON: Well, to the extent, I think, that that tells us why you would want to attack a supermarket or something of that nature, what we want to know is why this particular supermarket? There must have been others in the area, why this one?

MR KHOTLE: As I've already explained that we did not have problems of which target to start with, we did not have a problem to identify targets. During our organised struggle for liberation, this supermarket which was attacked, it was one of those areas which could have been attacked at any time by any other unit. Why specifically this one, I would like to say, I want to say that oppression was not mainly as Africans, we don't have skills or maybe it was because of the greed of Europeans for us to come to this conclusion that we attacked this area, we had many targets, now this one would make us able to attack other targets, because of the money we would receive from this.

MR MBANDAZAYO: Mr Chairman asked you specifically that he understands that there are many other supermarkets which possibly they were also targets, potential targets, if I may use your words, but the question he wanted was that you have already indicated that you were able to get money, but he wants to know why specifically this supermarket, the Wesselsbron supermarket, why specifically that one, because he understands maybe there are other supermarkets where you were able to get money, but now why specifically that one?

MR KHOTLE: Let me put it this way, when I spoke about many targets which we have already identified, I said targets, as to whether they were supermarkets or not, I didn't say that, they were not all supermarkets, in those targets there were no supermarkets, there were certain areas.

MR MBANDAZAYO: Before you go forward, no, he did not say that you said that the targets were supermarkets, he himself said he understands that there are other supermarkets or any shops which are in a position of that supermarket where you were able may to attack or to get money from. Now he wants to know why specifically that one, not necessarily that it was said by yourself?

MR KHOTLE: We chose this one because it did not have problems. There were other targets which the situation around them were a little bit complicated, and the security was different, or maybe the team which would attack there would not be conducive for them to be attacked. That is why we chose this one, because firstly, according to our tactics, we attack where the enemy is weak. That is why we attacked this one. It has access and it will be able to be attacked and be able to retreat without the interference of the security forces. That is why we chose this one.

MR MALAN: Can I just follow up on that please? The evidence we have before us is that, from yourself, that this supermarket was guarded by people with pistols, wearing plain clothes, we have your evidence that Mr Bhani told you that it was frequented by security police, we have his evidence that it was frequented with AWB members carrying guns in uniform and by police, and that the police station was two blocks up the road, what makes this a weak target? Is this not a difficult target, wouldn't it be a major feat to do what you indeed did do?

MR KHOTLE: What I know is that the police station was near to the supermarket. You cannot rely on the police, because in most cases over the weekend they will go and drink in the township, that is what we realised, that during the weekend the police will relax and go to the township, others will go to the City Hall, so that was our deduction, we saw it easy to attack that place then.

MR MBANDAZAYO: And in an event... (intervention).

MR MALAN: Sorry, who told you that they were relaxing over weekends and going out for drinks and going to the City Hall, who told you that?

MR KHOTLE: At the beginning I said on my arrival there, I assessed the area, and other places there, and after that I made a collective assessment of the whole region. In other words it means that myself, I realised during that assessment that in a particular area the community there behave in a certain way, the police in that area behave in a certain way in different times, like for example at the end of the month. So what I'm trying to say here is that there is no-one who told me, but I found that out myself when I was doing my assessment, I realised the way in which they behave, I realised that they relax.

MR MALAN: And after Mr Bhani reported to you that he identified the target, you nevertheless deemed it fit to go out twice to confirm this again, do I understand your evidence to be that?

MR KHOTLE: It was necessary that I should also go there and make an assessment. As a regional commander, it has to be clear that I was not commanding the air but the people, their security. If anything happens to one of them, or when they meet, if anything happens to them, I will be responsible and then I will have to answer how did it happen to Africa, in other words I have to be responsible and account to anything that will happen to them, that is the members of APLA. Like I've already said, I was a member of the security, they were also members of our security.

MR MALAN: Let me ask you this last question, what did you learn on those two follow-up visits, after identification of the target, and you say it was over weekends, that you did not know before?

MR KHOTLE: Can you please repeat your question?

MR MALAN: What did you learn about this target when you specifically went there by taxi on two weekends that you did not know before from your general reconnaissance and getting to know the area, because you told us you knew that supermarket, you knew the area, you knew the police's behaviour, you knew that they were reclining and relaxing and drinking over weekends, what did you learn after the identification of the target that you didn't know before?

MR KHOTLE: The most important thing was to make sure what M'Afrika told me was true, and to ascertain what I have gathered will corroborate with what M'Afrika have told me, the information that he gave me and the information that I have gathered myself, it was just a question of corroborating the information that he brought to me. On the other side, I also have information that I gathered myself from what I saw there during the weekend and that which M'Afrika told me, whether it's in line with the information that I already have.

MR MALAN: Now what information did he give you that you needed to corroborate that you didn't have before?

MR KHOTLE: The information that he gave me that I already knew was that that place was frequented by the police and the members of the AWB. I already knew that information, but the most important thing that I want to say, the reason why I went there was that, one, first, as a regional commander I have to be responsible and account to my seniors, because if one of our members die or get injured in a particular place, I could not rely... (intervention).

MR MALAN: We've heard that, you don't have to repeat that. Frankly, I simply asked you about additional information, I don't ask you about your responsibilities and duties, I asked you whether there was any information you got from Bhani that you did not have before. Was there any or was there not?

MR KHOTLE: Okay. He just confirmed what I already knew.

MR MBANDAZAYO: Thank you, Mr Chairman. Now, can you tell the Committee your role regarding, did you play any role regarding the transport to Wesselsbron and also your involvement regarding the firearms that were used in the operation?

MR KHOTLE: Starting with the weapons, I will say I sent the late Comrade Zukwa, I sent him to Umtata so that he can go and get supplies of arms, money and the weapons. What would happen is that he came, together with Comrade Moalusi.

Unfortunately when they arrived with Comrade Moalusi, I was not there, I was in Kroonstad. The following day, in the morning, I arrived again in Welkom, and then I met Comrade Zukwa waiting for me at the hostel as we have arranged. On my arrival at the hostel, he told me that he has brought with him the parcels. So when I inspected the parcels, I realised that they are R4's, grenades, ammunition and the rifle grenades. So the other Africa had already left, that is M'Afrika Moalusi, he had already gone back.

On the arrival of these weapons, I took one rifle and I gave it to Comrade Ryder, I was left with only one rifle and then I took three bullets, I gave them to Themba Ngesi. I gave one ammunition and rifle to Comrade Themba and three I gave it to Themba, I told him to hide it and I was left with one.

CHAIRPERSON: I'm sorry, I'm getting confused, could we stay with the names of the individuals that we know, as we know them?

MR MBANDAZAYO: Mr Chairman, I'll try my best, the problem is that they don't know themselves with the actual names, so that's why he's (indistinct) now in the affidavit we have used the actual names, so that's why most of the time they use the names they were using in the operations. So, Comrade Chairman, I think Zukwa he said is Sebinzile, if I may correct, do you confirm that Mr Khotle, and Themba Gesi is Silimela Ngesi, Mr Chairman, the second applicant, who has already testified before you.

CHAIRPERSON: And Moalusi?

MR MBANDAZAYO: Moalusi Morrison I think is the fourth applicant, Morrison, Mr Chairman. Proceed, Mr Khotle.

MR KHOTLE: You asked me two questions concerning the arms, can you please remind me of another question, can you please repeat the other question?

MR MBANDAZAYO: I've asked you whether you did play a role in getting the transport which was used in the operation?

MR KHOTLE: When coming to transport, the role that I played was that I sent Dennis Sibande to go and meet Stanley Tshoane to tell him that he must be ready about the bus that we have already talked about. My arrangement with Tshoane before the incident, before I sent Sibande, was that if I do not manage to get to him, I'll send somebody and then when he arrived there, talking about the parcel, he should know that he was sent by me. So I told Tshoane to be ready with the transport. Thereafter, that is on the day of the attack, I went to fetch Tshoane, then I sent them to Wesselsbron together with Comrade Ngesi and Comrade Sibande and Comrade Sebinzile. So that is the role that I can say I played inasfar as the transport is concerned.

MR MBANDAZAYO: Finally, Mr Khotle, my last question to you, you confirmed before this Committee that Wesselsbron Supermarket was attacked on your instructions?

MR KHOTLE: That is true.

MR MBANDAZAYO: That's all, Mr Chairman.

CHAIRPERSON: How long do you think you will be?

MR STEENKAMP: I'll push along, Mr Chairman, I'll push along.

CROSS-EXAMINATION BY MR STEENKAMP: Sir, can you just remind me again, what was your political objective you sought to be achieved by attacking the supermarket, what was your political objective?

MR KHOTLE: Specifically the supermarket itself will not bring us to freedom, but what was important is that the supermarket itself would help us to move forward with our war, that is our struggle. So that was one of the ways that would help us to move forward with our struggle.

MR MALAN: You, in your evidence in chief talked about the money as the objective there, that would fund you for further moving forward, is that correct?

MR KHOTLE: I said that this attack was two-folded. Firstly, we wanted the money. Secondly, the instruction that I gave was that "Let us kill everything that is alive in this supermarket". I said this as a normal person, because I cannot take a gun and give it to a person and then expect him not to kill with that gun. If I did not want the people to die, I wouldn't have given them the firearms.

MR STEENKAMP: So do I understand you correctly that your political objective was mainly a financial one, to get funds, is this the reason why you attacked the supermarket?

MR KHOTLE: That is one of the things that we wanted in that supermarket, we needed that money in order to carry forward our activities.

MR STEENKAMP: Did you receive any instructions from your commander or your commanders regarding the Wesselsbron, I mean the supermarket attack?

MR KHOTLE: I have already explained that after satisfying myself that this supermarket is a real target, I went back to Umtata, then I consulted with the Director of Operations, then he approved and he said that we can move forward with the operation.

MR STEENKAMP: Did he also approve the killing of the people inside the supermarket?

MR KHOTLE: War is about killing, there is no war wherein peoples do not die.

MR STEENKAMP: No Sir, I think the question is this, did you inform him that you're going to kill those people, or did he instruct you that you must kill those people, do you understand my question?

MR KHOTLE: I understand your question. That is why I think that I've answered the question correctly. Being the director of operation, you are not just a director of troops, troops that will just go and attack even the walls, he knew that the people will die, hence I say that I told the unit commander that everything that is alive there have to be dead. That is what I'm saying now.

MR STEENKAMP: You see, something which I don't understand at all in your amnesty application, because none of this is included in your amnesty application, nowhere are you stating that the second objective of your group or of yourself was to kill people, you're only saying in your whole application it was to get money, that was your only objective, a financial one, nothing about to kill other people or that you were instructed implicitly or whatever. Can you explain that to me?

MR KHOTLE: I will ask if the Committee could, or the honourable Advocate Steenkamp to read on that section that deals with the justifications, as to what the attack was all about in my application, the one that I've submitted to this Honourable Committee. They should find out that indicated that the attack was about financial gain, because he's trying to create that impression.

MR STEENKAMP: Sir, I don't know if you had an opportunity to read your own amnesty application before the hearing, but I will refer you just quickly to page 11, paragraph 10(e) of your application. There you're saying the following:-

And then, going to page 12, paragraph 11(b), where the question is if you received any orders or approval, there you say:-

Nowhere are you indicating anywhere that one of the functions was also to kill the people in the shop, the white people, as it was indicated by the first applicant, nowhere is there any shape of information indicating this. Why is that?

MR KHOTLE: I think now I understand your problem. That is why I'm here today. I'm here to add to what is already written there. If it is not mentioned there that people should be killed, then I'm here to add what is not written on that application, that is my understanding why I'm here today.

CHAIRPERSON: The question was, why did you not say it in your application, and you said it was there. Is there any reason why you didn't mention it initially? But before you answer that, Mr Steenkamp can you show us where you were reading from? You referred to page 11 and page 12?

MR STEENKAMP: Mr Chairman, it's the new copy that was -I'm sorry for the confusion, Mr Chairman.

CHAIRPERSON: Would you like, Mr Khotle, to tell us why it wasn't in your application?

MR KHOTLE: If there is a reason, then that is what the English people say it's a human error.

MR STEENKAMP: Are there any other errors, Sir, before we take you through your application again, that you would like to comment on, or before we continue, is this the only thing you want to add, was there anything else?

MR KHOTLE: No.

MR MBANDAZAYO: Mr Chairman, if the applicant can be given a copy of his application so that he may have a look at it?

MR STEENKAMP: Mr Chairman, it seems that the applicant's ready, maybe we can continue? If I can continue, Mr Chairman? Sir, I just want to read a sentence to you from a document in my possession, I will gladly make it available to you, I'm just going to read the sentence and I just want to hear what is your response.

Is that correct, is that what your policy was?

MR KHOTLE: Attacking whites?

MR STEENKAMP: Yes, I'll read it again for you:-

Is this what the APLA policy was?

MR KHOTLE: It was one of them.

MR STEENKAMP: Is this correct?

MR KHOTLE: I'm saying so, yes, it is correct.

MR STEENKAMP: So in other words your fight was basically against white people?

CHAIRPERSON: We are not getting an interpretation here.

MR MBANDAZAYO: Sorry, Mr Chairman, it was just a technical mistake. Can we start again?

MR KHOTLE: What I was saying is that for that word "white" to be used or the word "black" in a document related to PAC, that was done for the sake of people like you, so that you can understand when we talk about the black and white, which people we are really talking about. Our war was not a racial war, it was a war for freedom. It is in your interest, it helps you to understand which people we are actually referring to, because people are afraid to say that they are Europeans. The Africans are proud to call them Africans. For example, in the United States of America, before you talk about Africa, you have to add for example you have to say Afro-American.

CHAIRPERSON: Thank you. I don't think we need this long discussion. If you would just answer the questions and stop and then he may ask more questions.

MR KHOTLE: Okay.

CHAIRPERSON: Thank you.

MR KHOTLE: Okay, thank you very much.

MR STEENKAMP: Thank you, Mr Chairman.

So are you saying that the attack on the supermarket in Wesselsbron was not primarily aimed against the white people, is that what you're saying, because that is why I'm asking you the question?

MR KHOTLE: The attack to this supermarket was an attack to the people who were oppressing, those who were oppressing the African people.

MR STEENKAMP: Sir, my question is, I will gladly repeat it to you, the attack on the supermarket, the incident here, we're talking here about today, was it mainly planned to kill white people or not? Do you understand the question?

MR KHOTLE: M'Lord, I'll repeat what I've already said. I don't want to talk about the race, because you want me to talk about the race, I don't see any white person here, I only see people, we wrote this for you to understand.

MR STEENKAMP: Sir, I'm talking about the supermarket, because I'll tell you why I'm asking this, because Comrade Bhani, if I'm not mistaken, said something different. He said the idea was to kill mainly the white people, or no, he said actually only the white people. Now that's why I'm asking the question. Please, do you understand this and can you please answer the question?

MR KHOTLE: Do you have a problem with white, the word "white", or the attack itself, can you please help me with that, because really I don't understand your problem. Do you have a problem with the word "white" or do you have a problem with the attack on the supermarket?

CHAIRPERSON: The question is that Mr Bhani gave evidence that they attacked, the objective was to attack and kill only white people, that's the question that's now being put to you. Now whether those white people are oppressors or non-Africans or simply white, let's not argue the language, we know what we're talking about, are you saying the same, or are you saying the objective was to kill everybody there? This is really the question.

MR STEENKAMP: Thank you, Mr Chairman.

MR KHOTLE: Now I understand it now. When coming to your level, it was to kill the white people only.

MR STEENKAMP: So Sir, I have to ask you this, was this then a racist attack on the supermarket?

CHAIRPERSON: Mr Steenkamp, I think we have canvassed that, it's... (intervention).

MR STEENKAMP: All right, I'll leave that question, Mr Chairman.

CHAIRPERSON: May I follow that question through, because you're now saying it was only to kill the whites or oppressors or non-Africans or whatever, let's not argue the debate, and in that sense to kill only the white people, but you responded immediately and you said that the objective, in cross-examination by Mr Steenkamp, you said the objectives were twofold: the one was to get money; the second was to kill everything alive in the supermarket, and the question relates not to your broader policy, but to the supermarket attack. The question is, in other words, if there were indigenous people in the supermarket, would they have been killed or not? If there were non-oppressors in the supermarket, if there were oppressed people in the supermarket, would they have been killed or not? That's the question?

MR KHOTLE: Yes, oh yes, I should have heard it, that is in exception of the attack should, I mean everything should, living should have been killed in except, or in the exception of the oppressed and the exploited.

CHAIRPERSON: But you did not say that, you repeatedly said, or said on more than one occasion, "I told them, I told the unit commander that everything that is alive must be dead", no distinctions, everything that is alive must be dead, that is what you said you told your unit commander.

MR KHOTLE: Yes, yes.

CHAIRPERSON: Did you do that, is that what you told them?

MR KHOTLE: I can say they went there knowing very well that there will be two people, the oppressor and the oppressed. If it happens that the oppressed will be there, maybe waiting there, they will have to try by all means not to involve them in that attack.

CHAIRPERSON: Did you ever say to that to them?

MR KHOTLE: Yes, that is true.

CHAIRPERSON: Why don't you tell us about it, why do we have to ask you these questions and then to get it in a round about way?

MR STEENKAMP: Mr Khotle, the difficulty is that, as the Chair has pointed out, on several occasions you said that the instructions were to go into that supermarket and kill everything alive, you said it on several occasions, everything alive. You never said oppressors, you never said white people, you never said Europeans, you said everything alive, or is everything alive meant to be understood to be only Europeans or oppressors or settlers or whatever you want to refer to them as?

MR KHOTLE: I understand your problem.

MR STEENKAMP: No, Mr Khotle, it's not my problem, it's your problem, because you've got to be able to tell us what you want to tell us. If we don't understand you, it becomes your problem. We have to make a decision and we want to understand you.

MR KHOTLE: What I can say is that the hearing is continuing. That which I have not said, because the hearing is continuing, I don't think that will be a problem, because the hearing is still continuing.

MR STEENKAMP: I'm not sure whether it's the interpretation or the answer, could you help us?

MR KHOTLE: What I'm saying is that, that which I did not say, what I said is that the attack should be directed to everything that is alive there, so I'm saying that it is good that the Member of the Committee has managed to ask me. So my understanding is that the hearing is continuing, so I don't see any problem why should this be an issue, because you are still continuing with the hearing?

CHAIRPERSON: Because you are supposed to tell us the truth and to make a full disclosure, and if you have not been doing that, you will not be granted amnesty in terms of the Act. It is not our function to go on questioning you for hours on end so you can come up with a different version after a different version. Your counsel has consulted with you, he has led your evidence, and you chose to adopt the line that the instructions you gave were the strong instructions to kill everything that moved, everything that lived. That is the evidence you chose to give, and it is not our function, as has been pointed out to you, to go on asking question after question so that you can then come out with another version. Do you understand?

MR KHOTLE: I don't have a problem with that, Mr Chair.

MR MBANDAZAYO: Mr Khotle, the Committee, what it wants is that can you explain what do you mean when you said that they must kill everything that was alive in the supermarket, does that mean include even the oppressed people, that's what they want to know, what is the meaning of that statement?

MR KHOTLE: I will answer as follows, like I've already said before, it is true that I said everything that is alive should be killed, it is also true that I didn't add the explanation that except the Africans. Now I'm giving the explanation, or I added what I've already said when I said everything that is alive should be killed, with the exception of the oppressed. So that is the explanation that I'm giving now.

CHAIRPERSON: Would "everything alive" include foreigners or tourists from other countries?

MR KHOTLE: Firstly, if there are people like tourists, they came here knowing the situation in this country and they were not written that they come from abroad. If it happened that way, then it would have happened.

CHAIRPERSON: Are you not now telling us that, in order to identify oppressors, you look only at colour, that's why you would mistake a visiting tourist to be an oppressor?

MR KHOTLE: How would I know that they are tourists, how would I know that they are Chinese or they are Russians, how would I know that they were French? What is important is that, what was important was my freedom and the freedom of Africa.

CHAIRPERSON: So, for that reason, you would kill everybody white, wherever they came from, for the sake of your freedom, is that what you are now telling us?

MR KHOTLE: That is exactly what I'm saying, as long as I would get the freedom of my land, then I would do that.

MR STEENKAMP: I'm finished, thank you, Mr Chairman.

MR MALAN: I have one question please, Chair, that wasn't canvassed in either evidence or cross-examination.

Mr Bhani, when did you know that he would be coming to Welkom?

MR KHOTLE: I would say the time I spent, there would be a time when I would go down to Umtata and then I made a request that M'Afrika should be sent, and then I asked the Director of Operations to make the selection, because they were not there, so I was told that around May or April that M'Afrika would arrive, that is Bhani.

MR MALAN: And how did it come that you met up with him? Did he come to your place?

MR KHOTLE: Do you mean while I was in Welkom or in Umtata?

MR MALAN: Yes, yes, when he arrived in Welkom.

MR KHOTLE: He found me at the G Hostel in Welkom.

MR MALAN: Did you not meet with him at the taxi rank, weren't you waiting for him at the taxi rank?

MR KHOTLE: The person I waited for him at the taxi rank was Ngesi.

MR MALAN: Was that Ngesi?

MR KHOTLE: Ja.

MR MALAN: How did you know that he would be coming?

MR KHOTLE: There were specified days that I would - on a particular day I will get a phone, he arrived at Matusi Taxi Rank, there is a garage there and there is a telephone booth there, so I knew on a particular day I must go there at that particular time, then I will receive a call, although it's a public phone. I knew that I will receive a call on that public phone, so I was always present there to get such calls, so I knew there will be a person that will arrive at that time. That is how I knew that Bhani will arrive and that is how I knew that Ngesi will arrive.

MR MALAN: And were you told that you were to be replaced as Area Commander, Free State, Regional Commander, Free State?

MR KHOTLE: We had a discussion about that with the Director of Operations, because of the pressure I was under, I was aware that I would be called and be sent somewhere.

MR MALAN: Were you told who your successor would be?

MR KHOTLE: What I remember, they did not specify, but from my deduction I realised that the possible candidate will be Bhani, although they didn't say that specifically to me, I made that out of my deduction, that between Bhani and Ngesi, one of them will be my successor.

MR MBANDAZAYO: Thank you, Mr Chairman.

RE-EXAMINATION BY MR MBANDAZAYO: Mr Khotle, this what came up during the Committee asked you questions about the question of the target, identifying. Can you tell the Committee what, in your training a soldier by APLA, your understanding and the understanding of the PAC, who was your enemy?

MR KHOTLE: In short I will say my enemy was the oppressor, so in South Africa the white people were the oppressors.

MR MBANDAZAYO: Now, you were asked by the Chairman of the Committee that even whether it's the tourists or whatever, somebody visiting, it's the French people or, you would attack him if he is white?

MR KHOTLE: That is what I said. If I can explain that further, Mr Chairman. Firstly, you must remember that we have been oppressed for many years, more than 300 years we have been oppressed. When I was born, we were still oppressed. What is happening, even the whole world knew about the situation in South Africa, more especially when it comes to the oppression of the African people. So from their knowledge, I think they should have also understood that the situation was not conducive for them to come and visit here, because South Africa was at war, it was war against oppression.

MR MBANDAZAYO: Mr Khotle, were you in your training told maybe about the tourists, that there will be times when you select targets that people who are there, though they will look as white people, they may be tourists,? Were you given training on how to identify that this person does not belong to this country, he's just a visitor or a tourist?

MR KHOTLE: No, it is not like that. In my training, I was never told that there'll be tourists. The only thing that I was told was that I was taught what I already knew then, I already knew the oppressor, it could be a Chinese or an Indian. This was not a question of racism, it was not something like that, it was the question of freedom, freedom from oppression. That is what I was told during my training.

MR MBANDAZAYO: Finally, if your oppressor was a black, if I may use that word, an African, would you have done the same thing with the person?

MR KHOTLE: Like I've already said, oppression doesn't have colour. If the person who was oppressing the African was also an African, then it is clear that he will also be attacked. So what happened in Wesselsbron would also happen to him under such circumstances.

MR MBANDAZAYO: Thank you, Mr Chairman.

CHAIRPERSON: I only have one point I want to clarify, and I don't know whether I should do it with you or with your client. His new application which has been marked pages 10, 11, 12 and 13, have you got it before you, oh, you've given him your copy, sets the date for this incident as the 3rd of June. Everybody else says the 3rd of July?

MR MBANDAZAYO: Mr Chairman, I think it's... (intervention).

CHAIRPERSON: Is it merely a mistake?

MR MBANDAZAYO: A mistake, Mr Chairman, because everybody agrees that it was the 3rd of July, Mr Chairman.

CHAIRPERSON: We'll now adjourn until 9H30 tomorrow morning.