--------------------------------------------------------------------------MR SAPELE: I joined the PAC in Krugersdorp at the prison. I was recruited by Borowsky Masilela, a member of the PAC. He indicated that I should go to Zimbabwe. I agreed and I did as agreed, that I should break from the prison. We took some money from the reception and I was later on arrested.

MR MBANDAZAYO: Now Mr Sapele, can you tell the Committee how did you escape from jail, how did you plan to escape from jail, in details. Please tell the Committee, they were not there, all of us we don't know what actually happened. How did you come to this decision to escape from jail? Tell the Committee that?

MR SAPELE: Boris and I had a discussion and we agreed that I should join him so that we can become, so that I can become part of the PAC.

CHAIRPERSON: What did you do to escape, how did you escape?

MR SAPELE: We killed a police and we fled.

MR MBANDAZAYO: How did you flee? You killed the police, what did you do after killing the police? Why did you kill the policeman?

MR SAPELE: The police did not want to give us the keys to the prison and we managed to overpower him and ultimately we took some money from the reception.

CHAIRPERSON: Sorry, before you proceed. You say you killed a policeman because he didn't want to give you the keys, do you mean, was it actually a policeman you killed or was it a prison warder?

MR SAPELE: It was a prison warder.

MR MBANDAZAYO: Are you saying to this Committee that this prison warder was having keys of the jail which can access you outside the jail?

MR SAPELE: Yes, the keys would actually enable us to access the reception, from where we would be in the position to obtain other keys to other gates.

MR MBANDAZAYO: So after killing this policeman, you managed to get the keys which you used to go to the reception?

MR SAPELE: Yes, that is correct, we went to the reception with the keys and we ...

MR MBANDAZAYO: What did you do on your arrival at the reception?

MR SAPELE: Pardon?

MR MBANDAZAYO: What did you do on your arrival at the reception?

MR SAPELE: We took some money once we were at the reception and we also took the keys that would enable us to gain access to the outside. We exited the prison and we were pursued by the police, or should I say the prison warders apprehended us outside the prison.

CHAIRPERSON: Sorry, Mr Sapele, I notice from your application you say that a police officer was injured, you don't talk about killing a prison warder in your application and now you say that you killed him, what is the position?

MR SAPELE: Here I am referring to the offence that I'm talking about where a policeman died is actually a matter that I came across in Court.

CHAIRPERSON: I don't quite follow, Mr Mbandazayo, I was under the impression that he said that he killed a warder who he referred to a policeman, in order to get the keys to get into reception to get money to get out and now he's talking about killing a policeman in the courtroom.

MR MBANDAZAYO: Thank you, Mr Chairperson. Let me try and lead him in a way that - but my understanding is that he came across at Court that this policeman died, the prison warder. He was aware in Court. Let me get it from here for him to confirm.

At the time you wanted these keys from this policeman, when you left him was he dead or was he injured?

MR SAPELE: When we left he was still alive. We only heard when we were arrested that he had died, that is the prison warder.

CHAIRPERSON: Now if that is the case, Mr Sapele, why then do you only apply for, why don't you apply for murder in your amnesty application?

MR SAPELE: There is one policeman who died and there are other policemen who got injured at the reception.

MR MBANDAZAYO: Mr Chairperson, if I may clarify. I think the reason when I went through with him was that they were acquitted of murder in the High Court, of the policeman.

CHAIRPERSON: Yes, continue.

MR SAPELE: That is correct.

MR MBANDAZAYO: Now let's go the reception. You are now at the reception, what did you do at the reception? Can you tell the Committee how many were you when you were doing this? You have mentioned Masilela who is your co-applicant, were only two of you involved in the whole thing?

MR SAPELE: There were 26 of us when we arrived at the reception. We took some cash from the safe as well as the keys and we exited the prison.

MR MBANDAZAYO: Tell the Committee, you arrived at the reception, I know that you took keys and money, how did you do that? How many people were at the reception when you arrived and what did you do to those people?

MR SAPELE: We apprehended the two policemen who were at the reception, we opened up the safe and we retrieved the money that was inside the safe, as well as the keys and we went out.

MR MBANDAZAYO: Now you told the Committee that your intention of the escaping, according to your plan with Masilela, was to go outside the country, why did you take money, not the keys so that you can run away and go?

MR SAPELE: It was an instruction from Boris Masilela that we should take the money so as to enable us to travel or to use it to travel to wherever we wanted to.

MR MBANDAZAYO: Now after you had taken the money, what happened?

MR SAPELE: We were arrested just outside the prison, after we had taken the money as well as the keys. We were brought back to the prison.

MR MBANDAZAYO: How many of you were arrested?

MR SAPELE: 19 of us but the rest escaped, I think there were 9.

MR MBANDAZAYO: Am I correct that you were charged for escaping and also of murder and robbery?

MR SAPELE: Yes, that is correct, murder, armed robbery as well as escaping from lawful custody.

MR MBANDAZAYO: Can you tell the Committee how many of you were convicted of murder and escape and also armed robbery?

MR SAPELE: The 19 were found not guilty of murder, I was found guilty of robber, armed robbery because I was in possession of the cash.

MR MBANDAZAYO: Are you telling the Committee that you are the only person who was found guilty of armed robbery?

MR SAPELE: That is correct.

MR MBANDAZAYO: And the others were convicted of escaping?

MR SAPELE: That is correct.

MR MBANDAZAYO: Now you have applied for amnesty, can you tell the Committee, you have ...(indistinct) to the Committee that you were in prison, can you tell the Committee when you joined the PAC in prison, why were you in prison?

MR SAPELE: I was a follower of the PAC and at the time I came across Borowsky I was already an avid follower of the PAC but not a card-carrying member.

CHAIRPERSON: The question, Mr Sapele, the question asked by Mr Mbandazayo was, when you met Mr Masilela in prison, why were you in prison?

MR SAPELE: Theft.

MR MBANDAZAYO: Now you were convicted of theft and you were serving sentence, what was your sentence, six years, am I correct?

MR SAPELE: Yes, I found guilty and I was given a sentence of six years.

MR MBANDAZAYO: Now you are applying for amnesty before the Committee, can you tell the Committee why should you be granted amnesty for escaping from prison and armed robbery in prison?

MR SAPELE: I was asking the Committee to give me amnesty because I committed the said deeds.

MR MBANDAZAYO: Yes, the Committee knows that you committed the offence but what is the reason why they should give you the amnesty for that?

MR SAPELE: The reason is that Boris Masilela instruction me as my commander.

MR MBANDAZAYO: Now can you tell the Committee, would you have committed escape from prison and committed armed robbery had you not been recruited by Boris Masilela?

MR SAPELE: I would not have committed any of the said deeds or the deeds that I was found guilty of having committed.

MR MBANDAZAYO: That is all at this stage, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo.

Mr Mpshe, do you have any questions to put to the witness?

CROSS-EXAMINATION BY ADV MPSHE: Yes, Mr Chairman, thank you.

Mr Sapele, would I be correct to state that the purpose, or the reason for escaping was to gain your freedom?

MR SAPELE: The main reason was for me to go to Zimbabwe together with Borowsky.

ADV MPSHE: And the money that you took during the robbery that was not used for PAC purposes but for personal use, am I correct?

MR SAPELE: No, that is not correct, because Boris had actually said that we were going to use the money to travel to Zimbabwe in order to fulfil further aims of the PAC.

ADV MPSHE: Ja, the point I'm trying to make is that the money was for personal use, for travelling purposes, am I right?

MR SAPELE: That is correct, we were going to use it to travel.

ADV MPSHE: Now when you say you were recruited in jail and became a member, what do you mean by saying you were a member?

MR SAPELE: Could you please repeat the question?

ADV MPSHE: What do you mean when you say you were a member of PAC?

MR SAPELE: I was recruited by Borowsky to be a member of the PAC because I was already a supporter.

ADV MPSHE: Had Borowsky informed you about what PAC is all about, just general information about the organisation you wanted to be a member of?

MR SAPELE: No, he never did.

ADV MPSHE: But you had agreed to become a member?

MR SAPELE: Yes, I did because Borowsky recruited me to join and I was already a supporter of the PAC.

ADV MPSHE: How do you join an organisation you don't understand, you don't know what it is about?

MR SAPELE: He was still going to brief me about the organisation but at some stage I was transferred from 1 Prison, that was where I was to another one.

ADV MPSHE: I see. If I'm not right you must say so, will I be correct to say that the full briefing about PAC as a structure and what it is all about was going to be done after your escape, your successful escape, will I be correct?

MR SAPELE: I was travelling with him because I did not know the place, I did not know Zimbabwe.

ADV MPSHE: No, no, I'm not talking about Zimbabwe, I'm saying the full briefing, information to you about PAC, what it is about and everything about PAC was going to be done Masilela to you after the escape because in jail you did not do that.

MR SAPELE: Yes, he was still going to brief me because I had spent time with him and I was still going to spend time with him.

ADV MPSHE: And that was going to be after the escape?

MR SAPELE: That's correct.

ADV MPSHE: Good. Now at the time of committing this offence, the robbery inside jail, you were not yet informed about PAC at all?

MR SAPELE: I did not know their policies at that stage.

ADV MPSHE: That will be all, Mr Chairman, thank you.

CHAIRPERSON: Thank you, Mr Mpshe. Mr Mbandazayo, do you have any re-examination?

RE-EXAMINATION BY MR MBANDAZAYO: Yes, one, Mr Chairperson.

Mr Sapele, when you met Borowsky Masilela in prison as you have already told that he recruited you to PAC, what did he say to you?

ADV MPSHE: Mr Chairman, but this is going to be new evidence and not re-examination, and this would be a direct follow-up on my questions to the applicant, unless the Chair and the Committee allows that type of a question.

CHAIRPERSON: Does it arise out of the questions put by Mr Mpshe?

MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, not necessarily directly Mr Chairperson, but indirectly because he was asked about his, about the PAC, how did he escape in prison, was he told before he escaped ...(intervention)

CHAIRPERSON: I'll allow it, Mr Mbandazayo, seeing that we are not busy conducting a trial at the moment. There is a little bit more flexibility than usual.

MR MBANDAZAYO: Thank you, Mr Chairperson.

CHAIRPERSON: But I'll give, if necessary, Mr Mpshe another bite at the cherry if he wants on this point.

MR MBANDAZAYO: Thank you, Mr Chair.

Mr Sapele, what did he tell you when he was recruiting you?

MR SAPELE: He told me that PAC was a liberation movement and I should join so that we can be liberation fighters and fight the oppression as a black nation, the oppression of the black nation by the then white regime.

MR MBANDAZAYO: And nothing more did he tell you about PAC?

MR SAPELE: No.

MR MBANDAZAYO: That's all, Mr Chairperson, thank you.

CHAIRPERSON: Mr Mpshe, do you have anything?

ADV MPSHE: Mr Chairman, I won't enjoy the cherry, thank you.

CHAIRPERSON: Advocate Bosman, do you have any questions to ask the witness?

ADV BOSMAN: Mr Sapele, at what time was it more or less that you escaped from prison?

MR SAPELE: It was on the 21st of March, 1 o'clock midday, it was on a Sunday.

ADV BOSMAN: When did Mr or Borowsky, when did he recruit you, on what date more or less?

MR SAPELE: He recruited me during January 1990.

ADV BOSMAN: And these other people who escaped with you, where were they going to go, do you know?

MR SAPELE: They were also members of the PAC.

ADV BOSMAN: No, but my question is, where were they going to go?

MR SAPELE: I wouldn't know that because I was going to go with another group, that is Borowsky and the other group but Borowsky and myself were arrested.

ADV BOSMAN: How long had you been outside before you were captured?

MR SAPELE: It could have been four hours.

ADV BOSMAN: And you'd kept the money with you personally all the time?

MR SAPELE: That is correct.

ADV BOSMAN: Why didn't you give it to Borowsky, he was the commander?

MR SAPELE: Borowsky?

ADV BOSMAN: Yes.

MR SAPELE: I was also with him and he also had some cash in his possession.

ADV BOSMAN: Tell me, what sentence are you serving at the moment for this robbery?

MR SAPELE: I got 15 years for the armed robbery.

ADV BOSMAN: In your form you state that you are asking for amnesty for armed robbery, did you have a firearm with you?

MR SAPELE: Yes, we had a knife as well as a gun.

ADV BOSMAN: Where did you get the gun from?

MR SAPELE: A certain policeman gave us the gun.

ADV BOSMAN: Did he give it to you voluntarily or did you ask him for it or how did it come about?

MR SAPELE: We spoke to him and he actually slipped the gun inside the cell.

ADV BOSMAN: Who was this policeman?

MR SAPELE: Matibela.

ADV BOSMAN: Thank you.

CHAIRPERSON: Thank you. Advocate Motata, do you have any questions to ask the witness?

ADV MOTATA: Thank you, Mr Chairperson, about two.

Mr Sapele, at reception when the 19 of you got there, who had the gun and who had the knife, because we learn that you were 19?

MR SAPELE: I had the knife, Banani had the gun.

ADV MOTATA: I see on your application form, that would be the paginated papers, page 45, you look at 7(a) you say, the question is:

Do you see that kind of sentence there? You say:

Do you see that?

MR SAPELE: Yes.

ADV MOTATA: I just want clarity there. Whilst you were in prison you were not a trained APLA member, wouldn't I be correct in assuming that?

MR SAPELE: Yes, I had not yet been trained, I was not a trained cadre.

ADV MOTATA: You were still going to be trained had you succeeded getting to Zimbabwe?

MR SAPELE: That is correct.

ADV MOTATA: How did you know that there was money in reception?

MR SAPELE: We usually see it when we pass the reception.

ADV MOTATA: So the understanding was that not only escaping, you had to take the money as well? You didn't want to just escape and probably find your way to Zimbabwe but you wanted the money as well?

MR SAPELE: Boris Masilela said we should also take the money.

ADV MOTATA: How much was it?

MR SAPELE: They retrieved a thousand rand and a few rands, a few hundred rand from me.

ADV MOTATA: How many people were at the reception when you committed this armed robbery?

MR SAPELE: We were 26.

ADV MOTATA: No, I mean the actual people you found at reception.

MR SAPELE: There were about 40 people at the reception.

ADV MOTATA: I don't follow. Which are now the 40 people, I don't follow.

MR SAPELE: Could you please repeat your question?

ADV MOTATA: What I'm asking you is that you had to via reception, to get the keys and money, did I understand you correctly?

MR SAPELE: That is correct.

ADV MOTATA: Now I say the personnel of the prison who were guarding the reception, how many people were there? That is the people you robbed the money from.

MR SAPELE: There were two.

ADV MOTATA: Did you open the safe yourselves or did you ask them to open the safe?

MR SAPELE: I apprehended the white policeman and ordered him to open up the safe.

ADV MOTATA: After he had done so, did you actually take the money or part of the 19 took the money? Did you participate in taking the money?

MR SAPELE: I took the money, the others also did, that is the rest of the group.

ADV MOTATA: Assist us, Mr Sapele, I see you are 19, it's quite a crown, 19, and the reception is two people, you all 19 of you or some of you or how many went to the safe, because you had apprehended this white person? Did you all go to the safe or approximately how many people went for the safe?

MR SAPELE: I think at the safe there were about six of us.

ADV MOTATA: The impression I got - please correct me, I just want clarity, is that you were apprehended, that is arrested not very long after and you gave an indication of four hours, where precisely were you people arrested?

MR SAPELE: At the cemetery, just next to the prison quarters.

ADV MOTATA: And how far is this cemetery from the prison?

MR SAPELE: ...[no English translation]

ADV MOTATA: Yes, Sir.

MR SAPELE: Quite near, actually very near the prison.

ADV MOTATA: Let's take it step by step, you access your way out of prison, were you immediately followed or what was the situation?

MR SAPELE: We escaped and we came across two policemen who ran away. We proceeded into the graveyard and we were arrested whilst we were seeking refuge in a tree inside the cemetery or the graveyard.

ADV MOTATA: Your getting out of the prison towards this graveyard which isn't far from the quarters, the time lapse was four hours. Just for that because you are giving an indication that this is very near.

MR SAPELE: Yes. There is grass at the graveyard. We hid ourselves in the grass and Boris climbed on top of the tree and it was raining. I think they realised later that we had escaped or we were at the graveyard.

ADV MOTATA: I don't just follow there because my question is the time spell and you had mentioned that there were police at the gate and you had to run, the impression I get that it was noticed immediately that you people were escaping, would I be correct in understanding you so?

MR SAPELE: That is correct.

ADV MOTATA: So it wouldn't be that they realised later that you had escaped?

MR SAPELE: That is correct.

ADV MOTATA: Thank you, Chairperson, I've got no further questions.

CHAIRPERSON: Thank you, Mr Motata.

Were these other persons who escaped members of a gang, prison gang called the "Royal Airforce"?

MR SAPELE: I think there were some who were members of the gang.

CHAIRPERSON: Were you a member of the Royal Airforce gang?

MR SAPELE: No.

CHAIRPERSON: You say that you apprehended the white, you call him a policeman but I think he was a warder, and you had the knife, did you stab him?

MR SAPELE: No, I just scared him off with the knife that he should open the safe but I never tampered with him in any other way or injured him.

CHAIRPERSON: Do you know how he got injured?

MR SAPELE: He never got injured because he was present at the parade and he pointed me out, he identified me as the person who had scared him with a knife.

CHAIRPERSON: Now you say that one - you said earlier that one of the warders got killed and another one got injured, is that correct?

MR SAPELE: Yes, the one who died died at the cells, he did not die at the reception area.

CHAIRPERSON: What caused him to die, how did he get injured? Was he shot, stabbed, beaten to death?

MR SAPELE: We assaulted him. I think he was also killed by shock.

CHAIRPERSON: Did you personally assault him?

MR SAPELE: I just took the keys from him. Yes, I did assault him.

CHAIRPERSON: How did you assault him?

MR SAPELE: I hit him with the fist.

CHAIRPERSON: Do you know what that warder's name was?

MR SAPELE: I forgotten his name but I would know him, I think it's Sergeant Mwasheni.

CHAIRPERSON: The other warder that got injured in the reception, how did he get injured?

MR SAPELE: He was kicked and assaulted.

CHAIRPERSON: Did you kick and assault him at all?

MR SAPELE: Yes, I did.

CHAIRPERSON: What did you do to him?

MR SAPELE: I did all. I assaulted him, I kicked him.

CHAIRPERSON: How did you assault him?

MR SAPELE: I kicked and I also assaulted him with fists because he was refusing with the keys.

CHAIRPERSON: Was that warder's name, Mr Selebalo?

MR SAPELE: That is correct.

ADV BOSMAN: May I just come in here?

Mr Sapele, you said you had a knife with you, how could you have assaulted him with your fists if you had knife? I don't understand that.

MR SAPELE: There were two people at the reception, the one who had the keys just handed the keys over to me after I had hit him with a fist, and Sergeant Steenkamp seemed to be the one who was stubborn, so I took up the knife and directed him to open up the safe and he complied.

ADV BOSMAN: So the first one you threatened with a knife and the second one you just assaulted?

MR SAPELE: Yes, that is correct.

ADV MOTATA: Thank you.

CHAIRPERSON: Yes, thank you. Mr Mbandazayo, do you have any questions arising out of the questions that have been put by members of the Panel?

MR MBANDAZAYO: None, Mr Chairperson.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: No questions, Mr Chairman, thank you.

CHAIRPERSON: Thank you, Mr Sapele, that concludes your evidence, you may stand down.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I don't know at this stage, I'm subject to the Committee as we were waiting for the other applicant. I've managed to talk to him telephonically. He said earlier on that he was on his way.

CHAIRPERSON: Should we stand this matter down to be called later in the day? I see there is somebody approaching you, Mr Mbandazayo? I don't know if you want to have a quick word?

MR MBANDAZAYO: Yes, Mr Chairperson, if I can be given a short adjournment and if I cannot fit him immediately after this one so that we can complete this matter?

CHAIRPERSON: Yes, we'll take a short adjournment for Mr Mbandazayo to find out what the situation is relating to Mr Sapele's co-applicant. If you could just let us know as soon as possible. We'll take a short adjournment now.

MR MBANDAZAYO: Thank you, Mr Chairperson. Just for the record, Mr Chairperson, we have managed to get Mr Masilela but Chairperson for the record I wanted to put it for record purposes, Mr Masilela is withdrawing his application for amnesty.

CHAIRPERSON: Thank you, Mr Mbandazayo.

MR MBANDAZAYO: And Mr Chairperson, what is going to happen is that he is going to give evidence on behalf of the first applicant, George Sapele, in relation to the incident of escaping and inasfar as his role regarding Mr Sapele.

CHAIRPERSON: Yes, thank you. So he is withdrawing the application in relation to this incident, the escape?

MR MBANDAZAYO: Yes, Mr Chairperson, he has applied for two incidents. Yes, he's withdrawing his application in regard to all those applications.

CHAIRPERSON: Oh, with regard to all of them?

MR MBANDAZAYO: Yes, Mr Chairperson.

CHAIRPERSON: Thank you.

CHAIRPERSON: Mr Masilela, do you wish to take the oath or do you wish to make an affirmation of the truth?

BOROWSKY MASILELA: (affirms and states)

CHAIRPERSON: Mr Mbandazayo?

EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.

Mr Masilela, is it correct that you were a former member of APLA?

MR MASILELA: That is correct.

MR MBANDAZAYO: And during 1990 you were in prison in Krugersdorp as a result of your activities as a member of APLA?

MR MASILELA: That is correct.

MR MBANDAZAYO: Mr Masilela, Mr Sapele testified before this Committee that he met you in Krugersdorp Prison in January 1990, and you recruited him to PAC, in fact to join APLA outside the country to undergo training. Can you tell the Committee in your own words what happened?

MR MASILELA: When I was in Krugersdorp Prison I met several people who were arrested, what you would call criminal offences and I kept discussing APLA activities with them and informing them about what APLA was doing, indicating to them what the principles of APLA and what it is that we were fighting for.

I indicated to them that they had to rid themselves of their patterns of thinking, they should come together with us so that we could work hand-in-hand to return the country to its rightful owners.

I then also spoke among others, to Sapele who showed interest so that this ultimately led to us planning as to how we were going to escape from prison. And there were also other members of the "Airforce" who were interested. We discussed and planned our escape from prison. Yes, indeed others were successful in fleeing but myself and Sapele were unfortunately arrested ...[end of tape]

MR MBANDAZAYO: Mr Sapele participated in escaping from prison because you recruited him and also at your instance?

MR MASILELA: Yes, that is correct, he took the decision to flee from prison because I had spoken to him about APLA, briefing him and indicating to him that I am not prepared to serve the sentence because the sentence was passed on me by the then South African Government and my intention was to flee from the prison and go back to Zimbabwe.

MR MBANDAZAYO: Can you tell the Committee - he also told the Committee that as a result of your escape, one prison warder was killed and also that a certain amount of money was robbed in the reception, also at your instance, can you tell the Committee, enlighten the Committee as to what happened during the, how the prison warder died and also how the money was robbed in the reception.

MR MASILELA: The warder had opened the gates for visitors. Our plan was to apprehend the police, rob him of the keys so that we could gain access to the outside. It so happened that when we were apprehending him he was fighting back and ended up being beaten.

It was only after we were arrested that we learnt that he had died. It was not our intention to kill him. You can also see from the Court records that it was discovered that the warder could not be said to have been killed by a particular person, but he just happened to die during the process.

It was not necessarily our plan to rob them of the money at the reception but if it so happened that the money was available, we would obviously lay our hands on it so that it could be of use to us during our travel. That's how it happened.

MR MBANDAZAYO: And also you confirmed that the taking of the money from, the robbing of the money from - I use that word, at the reception, was also at your instance?

MR MASILELA: Yes, I did say that if we get to the reception area and we realise that there is money we should take the money to make use of it for travelling because our plans were that, we had planned that some people should come and abduct us from the prison but those plans had failed, that is why we had to get hold of the money.

MR MBANDAZAYO: Thank you, Mr Chairperson, that is all at this stage.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, do you have any questions to ask the witness?

ADV MPSHE: Mr Chair, I don't have questions, thank you.

CHAIRPERSON: Advocate Bosman, do you have any questions to ask the witness?

ADV BOSMAN: At what stage did you talk about the money for the first time, Mr Masilela?

MR MASILELA: It was on the very same day that we fled.

ADV BOSMAN: Was this before you reached the reception?

MR MASILELA: That is correct.

ADV BOSMAN: Did you instruct any particular person to take the money?

MR MASILELA: I instructed George because he was the one person with whom I was to flee. He is the one who showed enthusiasm in fleeing.

ADV BOSMAN: If you say he was the one that showed enthusiasm to flee'd, do you mean the one who was eager to get out of prison or do you mean more than that?

MR MASILELA: As I have indicated before, he was enthusiastic about joining APLA.

ADV BOSMAN: And the other people, why did they escape? Were they not enthusiastic in joining APLA?

MR MASILELA: I had already conscientised a large number of them about the PAC and APLA. Yes, it is true, some of them were fleeing for their own personal reasons but George was one person who stood out among them.

ADV BOSMAN: Had you briefed him fully about APLA before the escape?

MR MASILELA: Yes, I had briefed him broadly that we were instructed to form APLA cells in South Africa.

ADV BOSMAN: Did you brief him fully on what APLA stood for?

MR MASILELA: Yes, I did.

ADV BOSMAN: The money that was taken, was any of the money ever handed to you?

MR MASILELA: No.

ADV BOSMAN: Why not, Mr Masilela, you were the commander, you had instructed him to take the money, certainly not for himself?

MR MASILELA: It should be remembered that when we escaped from prison we did not on arriving outside the prison relax, we instead struggled to try and evade being re-arrested and surely there was no time for me to say at that moment that they should give me the money there and then.

ADV BOSMAN: Thank you, Chairman.

CHAIRPERSON: Thank you. Advocate Motata, do you have any questions to ask the witness?

ADV MOTATA: I've got none, Chairperson.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising out of questions that have been put by the Panel?

MR MBANDAZAYO: None, Mr Chairperson.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: No, Mr Chairman, nothing, thank you.

CHAIRPERSON: Thank you, Mr Masilela, that concludes your testimony, you may stand down.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: That concludes, Mr Chairperson, the evidence for the applicant.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: No witness to lead, Mr Chairman, that concludes the evidence as well.

CHAIRPERSON: Thank you. Mr Mbandazayo, are you in a position to argue now or do you wish ...?

MR MBANDAZAYO: Mr Chairperson, I think I'm in a position now. I will do my best so that we conclude this.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, are you in a position to argue?

ADV MPSHE: I am, Mr Chairman, thank you.

CHAIRPERSON: Thank you.

MR MBANDAZAYO IN ARGUMENT: Thank you, Mr Chairperson. Mr Chairperson, I would not go through the provisions of Section 20(1) and (2), as it is well-known to this Committee.

Mr Chairperson, the applicant in this matter has testified before this Committee and told the Committee that he was a supporter of the Pan Africanist Congress, he was recruited by Mr Masilela and that he committed the offence, that is that of escaping from prison and that of robbery in prison at the instance of Mr Masilela who was a member of APLA and as such a member of the Pan Africanist Congress of Azania, which is a known political organisation in this country, who at the time was fighting for the liberation of the African people.

As such, Mr Sapele acted on the instruction of Mr Masilela who also testified and confirmed that, that he recruited many people in prison, he was conscientising them, trying to convince them to dissuade from what he termed as criminal activities and join them in the liberation of the African people, and that Mr Sapele was the person who was so enthusiastic about joining APLA. And as a result thereof they arranged that they escape from prison to go to Zimbabwe and that also Mr Sapele to undergo training.

Mr Chairperson, it is therefore my submission that the applicant has complied with the requirements of Section 20(1) and also (2), that at the time he was quite acting on behalf of APLA at the time, which as I indicated was a publicly known political organisation which was engaged in the political struggle. And that when he acted he did not act for personal gain nor out of malice but he bona fide acted on behalf of his organisation, which was PAC.

Mr Chairperson, Mr Sapele, one would argue that at the time he joined APLA and that is was only Mr Masilela who was a fully fledged member of APLA at the time, and Mr Masilela was in prison for that reason, being a member of APLA a what Mr Masilela did in prison was in continuation of his struggle to fight against the regime at the time.

Mr Chairperson, my argument is that Mr Sapele was in prison for criminal activities and he does not deny that and he does not deny that at the instance of Mr Masilela as he was serving his prison sentence, he was recruited by him. At the time he acted and tried to escape from prison and committed robbery, he no longer involved in criminal activities. At that time he acted as a member, as a supporter of PAC and an aspirant member of APLA, as what he did was trying to join APLA outside.

And as such what he did in that particular time, trying to escape from prison and the robbing of the money, the money which was going to be used as a mode of transport to their destination, which is they were going to Zimbabwe, they wanted to leave the country so they wanted money and that money was to be used in pursuance of that objective, that one of being part of the liberation struggle.

And it is therefore my humble submission, Mr Chairperson, that the applicant has fulfilled the requirements of the Act and that he has made full disclosure with regard to his activities on the day in question and as he has been conferred to by Mr Masilela. As such it is my humble request that this Committee should grant amnesty to Mr Sapele as applied unless the Committee wants me to address it on a specific point, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe?

ADV MPSHE IN ARGUMENT: Thank you, Mr Chairman, Members of the Committee.

Mr Chairman, it is so interesting that my learned friend is trying to cloth the applicant, Mr Sapele, with clothes that he never had, the clothing of a political organisation. Mr Chairman, I will just respond to what my learned friend has said, that will be my argument.

My learned friend has correctly used the word "aspirant member", that is a very important word. In other words, if we have analyse the word "aspirant member", it means he was aspiring to become one, he was not one at that time when this robbery was committed.

Mr Chairman, even if it can be said that what Mr Sapele did he did under the instruction, as it was said he acted at the instance of Mr Masilela, Mr Chairman, the TRC Act knows no general amnesty or amnesty for a group of persons, it makes mention of individuals for specific offences. It cannot be said that if Mr Masilela was an activist, which I do not dispute, and whatever he did can also be imputed onto Mr Sapele, that is untenable, completely untenable.

Mr Chairman, it has been stated to you and the Honourable Members of the Committee, that the offence committed by Mr Sapele whilst in prison, was in the interest of PAC. One wonders as to what would PAC stand to gain by a person escaping out of jail. That really brings a very big question mark.

Inasfar as the money is concerned, I don't see how it can be clothed with any political motive or motivation. The evidence is very clear from both Mr Masilela as well as Mr Sapele that the money was for personal use and thus it cannot be said that it was intended to be in the interest of the PAC.

Mr Chairman, with the greatest of respect, I fail to understand how my learned friend could be so ambitious to cloth Mr Sapele with the provisions of the ACT. And I want to move that no amnesty has been - no successful application for amnesty in this regard has been done. Thank you.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have a reply?

MR MBANDAZAYO IN FURTHER ARGUMENT: Thank you, Mr Chairperson, just briefly.

Mr Chairperson, I don't think it is denied, as I indicated I use the word "aspirant member of APLA", it's not denied that he was a supporter of PAC, which is also one of the requirements of the Act. He was a supporter, there's no dispute about that. A supporter in terms of the Act can apply for amnesty and that is what we are saying, that he was a supporter of PAC at the time and that was also his evidence, but an aspirant member of APLA ...(intervention)

CHAIRPERSON: But didn't he also say that he didn't have any idea as to what PAC stood for? So he was a supporter of a movement that he didn't know anything about.

MR MBANDAZAYO: Yes, Mr Chairperson. Mr Chairperson, I agree with you that he has said that he did not know but he indicated that he was told that he is going to fight for the liberation of the African people. That is what he knew broadly, but not detailed what PAC stood for ...(intervention)

CHAIRPERSON: No, I'm not talking about after he spoke to Mr Masilela, but he also said that he was for a long time a supporter of the PAC, while he was in prison. Because if one takes a look at his record, most of his recent past in prison, but he said he was a long time supporter of PAC, even before he met Mr Masilela. He also said he didn't know what it stands for.

MR MBANDAZAYO: Yes, Mr Chairperson, I agree with you, Mr Chairperson, he has said that. One, Mr Chairperson, I wouldn't like to go to that argument as to what supporters should know and what they should not know. I will leave it to the Committee. But my position is that he has indicated that he was a supporter of the PAC at the time.

Also Mr Chairperson, one other aspect which has been raised by my learned friend, the question of that if the Committee accepts that he was a supporter then automatically what he did there was part and parcel of his conviction that he wanted to be a member of APLA.

Now my point comes to the question of money, how the money was going to used, Mr Chairperson. Mr Chairperson, I find a difficulty how he would isolate the question of taking of money and being a member of APLA, which is in regard to Mr Masilela and also supporter. People were in jail, Mr Chairperson, and they wanted money to be used as a means of transport to get to their destination, which is going back to the liberation struggle.

CHAIRPERSON: You are saying that the taking of money was integral part of the escape plan? To escape physically out of the walls might be futile unless you had cash to hop into a taxi or onto a train and get out of the place?

MR MBANDAZAYO: Exactly, Mr Chairperson. It's just as if you were saying, let's put the money aside, if they have highjacked a car there as a mode of escaping would you say that it was not part of the struggle to go and fight?

I might use the words of one of the prominent members, the Vice-Chairman of the Amnesty Committee, Judge Wilson, he once said that when argument came when somebody shot at the policeman and he was running away from being arrested and it was argued that it cannot be said that running away from the policemen and shooting at them, you cannot say that that is politically motivated. And he asked a question: A person who is involved in the armed struggle, police are trying to arrest him so that they keep him in jail not to continue with the armed struggle, are you saying that it's not politically motivated to shoot at them so that they cannot arrest him?

Now my point is, if somebody escapes from prison, he wants money so that he successfully escapes from prison, would you say that it was not part of the struggle? That is my argument, Mr Chairperson. Thank you.

CHAIRPERSON: Yes, thank you, Mr Mbandazayo. Thank you, we'll reserve judgment in this matter.

ADV MPSHE: Mr Chairperson, if I may, inasfar as the victims are concerned ...(intervention)

CHAIRPERSON: Victims, yes.

ADV MPSHE: Mr Chairperson, I have one person by the name of Anuel: A-N-U-E-L Daniel Mogale: M-O-G-A-L-E. His address is: No 4 Bunting Road.

CHAIRPERSON: Bunting?

ADV MPSHE: Yes.

CHAIRPERSON: Bunting: B-U-N-T-I-N-G?

ADV MPSHE: That's correct, Mr Chairman, thank you. No 4 Bunting Road, Baketon, Springs.

CHAIRPERSON: Bakerton?

ADV MPSHE: Baketon in Springs.

CHAIRPERSON: Springs? And who was he?

ADV MPSHE: This is the policeman who was shot in the robbery in Springs wherein Masilela withdrew but he still remains a victim.

CHAIRPERSON: Oh, so he's not part of this incident?

ADV MPSHE: He's not part of this one.

CHAIRPERSON: So he's a Springs victim in the withdrawal matter?

ADV MPSHE: The policeman who was shot in the exchange of fire. And another one, Mr Chairman:

Simon Buthelezi, still in the same matter, in the robbery in Springs. Simon Buthelezi of No 29 Mashiyane Street, Qwatema, Springs.

CHAIRPERSON: Mashiyane?

ADV MPSHE: Mashiyane: M-A-S-H-I-Y-A-N-E in Qwatema, Springs.

CHAIRPERSON: Qwatema.

ADV MPSHE: Qwatema, Springs. I won't belabour the record by putting the name of the shop owner because he has since left the country.

CHAIRPERSON: Yes, thank you, Mr Mpshe, for that. I see now it's five to one and we've come to the end of this application. Would this be a convenient time now to take the lunch adjournment and then we'll resume with the other matter after lunch? Thank you. We will now take the lunch adjournment and we'll resume after lunch with the next matter that is on the roll, that is the matter of Bhani Mangalisekile and another.

-----------------------------------------------------------------------ON RESUMPTION

CHAIRPERSON: Yes, thank you, we'll now be commencing with the next application. We'd appreciate it if the legal representatives will just place themselves on record.

MR MBANDAZAYO: Thank you, Mr Chairperson. My name is Lungelo Mbandazayo, I'm representing the applicants in this matter, thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo.

ADV MPSHE: Thank you, Mr Chairperson, Members of the Committee. I am J M Mpshe for the TRC, specifically amnesty, thanks.

CHAIRPERSON: Thank you, Mr Mpshe. The Panel which I introduced before the last hearing is the same. For those persons who weren't here, on my right is Advocate Johnny Motata from Johannesburg, on my left is Advocate Bosman from Cape Town, and I am Selwyn Miller, a Judge of the High Court in the Eastern Cape attached to the Transkei Division of the High Court.

Mr Mbandazayo?

MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, my first applicant in this matter is Mangalisekile Bhani.

MANGALISEKILE BHANI: (sworn states)

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I hope the Committee is in possession of the affidavit made by Mr Bhani.

CHAIRPERSON: Yes, thank you, Mr Mbandazayo. I think in fact we have two copies of it, we've got one in the bundle and then we were sent a further one during the lunch adjournment.

MR MBANDAZAYO: Yes, the signed one, the commissioned one, Mr Chairperson, is the latest one. It's unsigned, the one in the bundle.

CHAIRPERSON: We are in possession of that.

MR MBANDAZAYO: Thank you.

CHAIRPERSON: Are you going to make reference to it now, Mr Mbandazayo?

MR MBANDAZAYO: Yes, Mr Chairperson, to facilitate the proceedings I will use the affidavit.

CHAIRPERSON: Yes. If we can call it Exhibit A.

MR MBANDAZAYO: Thank you, Mr Chairperson.

CHAIRPERSON: That is the affidavit of Mr Bhani which was attested to today.

EXAMINATION BY MR MBANDAZAYO: Yes, Mr Chairperson.

Mr Bhani, the affidavit which is in front of you is also before the Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?

MR BHANI: Yes.

CHAIRPERSON: I think, Mr Mbandazayo, it's not a very long affidavit, I think for the purposes of the record perhaps if it could be read into the record and then the people present will know what the contents are.

MR MBANDAZAYO: I will do that, Mr Chairperson. The affidavit reads thus:

Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Mbandazayo.

MR MBANDAZAYO: Mr Chairperson, having read the affidavit, I would go to certain paragraphs just for clarity, to ask the applicant to clarify for the Committee.

Mr Bhani, paragraph 8 of your affidavit, you mention there that:

Can you tell the Committee who is comrade Ntjebe and where did he give you these instructions for this operation?

MR BHANI: Comrade Ntjebe is Tabelo Patrick Maseko. He gave me this order when we met in the park at Randfontein, after I gave him a report about the place we just reconnoitred.

MR MBANDAZAYO: And then what was his specific order?

MR BHANI: He told us to continue to go on with the operation, with the attack.

MR MBANDAZAYO: Can you tell the Committee specifically what your purpose was of the operation, was it to attack or was it to repossess, what was it?

MR BHANI: The aim of this operation was to repossess but murder was involved because the owner of the shop made a mistake, he wanted to grab my firearm, I then shot him but our aim was to repossess.

MR MBANDAZAYO: Thank you. Now you told the Committee at paragraph 9 that it was yourself, Nkopani. If I take it, Nkopani was Mr Diahomonaheng, the second applicant in this matter, am I correct?

MR BHANI: Yes.

MR MBANDAZAYO: Now can you tell the Committee about Tando, who is Tando?

MR BHANI: I only knew him as Tando.

CHAIRPERSON: Was that a code name?

MR BHANI: Maybe it was a code name or it was a real name, I don't know because at that time we were not supposed to know other people's details because we did not know what would happen tomorrow.

MR MBANDAZAYO: Now as a follow-up to Mr Chairperson's question, did you know that Mr Diahomonaheng was Nkopani at the time? How did you know that is Mr Diahomonaheng, Nkopani was Diahomonaheng, was he using the same name?

MR BHANI: I knew him as Nkopani. I then met him in prison and he then told me his real names.

MR MBANDAZAYO: Now, can you take the Committee - now when you arrived at the shop, at the vegetable shop, can you take the Committee through what happened, what was your plan? Who was going to get inside the shop and demand money, where was the other placed? Can you take the Committee through those steps?

MR BHANI: We planned that I was going to be the first one to enter the shop and then one would stand at the door and one would be inside, the one who was not armed, that is Tando. I was going to be the one who would demand money from the owner. That was our plan.

MR MBANDAZAYO: Did you go according to the plan?

MR BHANI: Yes. When we got there we continued according to our plan.

MR MBANDAZAYO: Can you in details tell the Committee how did you shoot the owner of the shop?

MR BHANI: Then I told him to hold up, we were next to the door, the phone was next to the door. I went inside and one was outside and Tando was inside. When he said that he did not have money I decided to look for the money. When I was looking for the money he tried to grab my firearm, I then shot him.

MR MBANDAZAYO: How many people were in the shop when you entered the shop?

MR BHANI: There was the owner and other black people but I don't remember how many they were.

MR MBANDAZAYO: What happened to those people who were inside the shop when you entered?

MR BHANI: These people were standing, they were not moving. After this operation we left them there, standing there. They were not injured, nothing happened to them.

MR MBANDAZAYO: What did you do after leaving the premises, what mode of transport, did you use the same transport you came with?

MR BHANI: Yes, we used the same transport.

MR MBANDAZAYO: Did you meet Mr Maseko and Ntjebe after this operation?

MR BHANI: Yes, that is correct. We gave him the money, the money we took there.

CHAIRPERSON: Sorry, Mr Bhani, are you saying that there was just the one shot fired in the operation, namely the shot that you fired at the owner?

MR BHANI: Yes, I only shot him.

CHAIRPERSON: Was that the only shot fired by any of the operatives?

MR BHANI: Nkopani shot but he was facing the station.

MR MBANDAZAYO: Are you saying that the only shot that was fired inside the shop was the only one which was fired from your gun?

MR BHANI: Yes.

MR MBANDAZAYO: Did you shoot again at any stage, after you left or before you came inside the vegetable shop?

MR BHANI: No, we didn't do random shooting before we went inside the shop. I just shot the owner of the shop.

MR MBANDAZAYO: Can you tell the Committee, do you know the reason why Nkopane fired a shot in the direction of the station, as you put it?

MR BHANI: Yes. He shot because he saw the security guards next to the station. He thought they would try to protect or to shoot. We then ran away after that shot.

MR MBANDAZAYO: You mentioned in your affidavit that you were arrested, how long after the incident were you arrested?

MR BHANI: I was arrested on the 26th of September.

CHAIRPERSON: '94?

MR BHANI: Yes.

MR MBANDAZAYO: So it was a long time after the incident?

MR BHANI: That is correct.

MR MBANDAZAYO: After how long were you released?

MR BHANI: For this operation?

MR MBANDAZAYO: Yes, for this operation.

MR BHANI: I was released after a year because I was involved in the Wesselsbron case. They would fetch me and try to investigate about this matter. They then realised or found out that there is not enough evidence. We were then released in 1995, before I was sentenced for the Wesselsbron Supermarket case.

MR MBANDAZAYO: That is all at this stage, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, do you have any questions to ask the witness?

CROSS-EXAMINATION BY ADV MPSHE: Yes, Mr Chairman, thank you.

Were you given instructions to carry out the operation by two separate commanders?

MR BHANI: I was the unit commander. I got an instruction from one commander, Mr Ntjebe, Tabelo Patrick Maseko.

ADV MPSHE: So he is the - Mr Maseko is the one, the only one who gave you the instructions for this operation, am I correct?

MR BHANI: Yes, that is correct.

ADV MPSHE: Now if you have a look at your application, page 3 of the bundle under question 11(b). I will read for convenience - that is where it says you must state the name and address of the persons who gave such order or approval and you say:

Surely Letklapa is not Maseko?

MR BHANI: I mentioned his name because he was the Director of Operations of the overall armed struggle, of the operations of the armed struggle. In other words I mentioned him because he was the overall commander of the operations.

ADV MPSHE: Did Mr Letklapa Mphahlele physically give an order inasfar as this operation is concerned?

MR BHANI: The person I gave a report to was Mr Ntjebe. Maybe he was given an instruction to give it to me but I was given instructions by him, Mr Ntjebe.

ADV MPSHE: Now you said you reconnoitred the place before you could launch the attack, for how long was it reconnoitred?

MR BHANI: Yes, we reconnoitred the place for about two weeks.

ADV MPSHE: Who was doing the reconnoitring?

MR BHANI: It was myself.

ADV MPSHE: Will I be correct to state that the killing of the shop owner, the fruit shop owner, was an unfortunate mistake?

MR BHANI: Yes, the killing of the owner was his mistake because he wanted to grab my firearm, I then shot him by mistake.

ADV MPSHE: By trying to protect himself he was making a mistake, he was causing his death, is that what you are saying?

MR BHANI: He couldn't just throw himself in a firearm, it was obvious that I was going to retaliate when he was doing that, so he made a mistake for trying to grab my firearm.

ADV MPSHE: I'll repeat what I said initially. His death was a mistake by yourself, is that correct?

MR BHANI: Yes, because the aim was not to kill him but it was to get money.

ADV MPSHE: Now where on the body did you shoot him?

MR BHANI: At the front.

ADV MPSHE: In front where, in front where, Mr Bhani? In the forehead, the neck, below? All this portion is the front.

MR BHANI: In his body.

ADV MPSHE: On the chest, as you indicate. And how many times did you shoot there?

MR BHANI: I didn't count but I was using an automatic.

ADV MPSHE: I see. How many bullets does that automatic load?

MR BHANI: 30.

ADV MPSHE: 30?

MR BHANI: Yes.

ADV MPSHE: And you pulled and the bullets went off, you cannot tell how many?

MR BHANI: No, I cannot tell, I didn't count, I just shot. They went one after the other.

ADV MPSHE: The possibility of having released four or five cannot be excluded?

MR BHANI: Maybe.

ADV MPSHE: Now you say when you entered there he was busy on the telephone, you asked for money and then you say he tried to grab the firearm, where was the phone at that time because he was busy on the line? Or to be direct, how could he grapple with the firearm when he was busy holding the phone and talking?

MR BHANI: At that time when he was trying to grab my firearm the phone was already down because when we entered the shop he put the phone down.

ADV MPSHE: That will be all, Mr Chairman.

CHAIRPERSON: Thank you, Mr Mpshe. Mr Mbandazayo, do you have any re-examination?

MR MBANDAZAYO: None, Mr Chairperson.

CHAIRPERSON: Advocate Motata, do you have any questions to ask?

ADV MOTATA: Just one, Mr Chairperson.

Mr Bhani, you say you were supported by a person, paragraph 3, who was living on an old age pension, who is this person you are referring to here?

MR BHANI: My mother and my father.

ADV MOTATA: And with your permission, Chairperson, I had another question.

Now you say this person, the owner of the shop, was mistakenly killed because he attempted to grapple with your gun, in this repossession, other than the grappling of the gun, was it within your plan that if any resistance comes forth, what methods were you to take to fight that resistance?

MR BHANI: Yes, if a person is resisting we would fight back as we have done with this victim. He wanted to grab my firearm, that showed that he was trying something, he was trying to do something and then he died.

ADV MOTATA: Would we be understanding that this repossession, taking away somebody's money, that you are repossessing something which belongs to that person, probably hard-earned like the fruit shop owner? He worked for this money, how could you say you were repossessing?

MR BHANI: These people, the Boers, when they came to this country they had nothing, they took these things from our ancestors. That is why we are saying that we are getting or trying to get back what they took from our grandfathers. That is why we are saying we are repossessing. Our grandfathers were killed by the Boers. I'm sure that you understand what I'm trying to say.

ADV MOTATA: Thank you, Chairperson, I've got no further questions.

CHAIRPERSON: Thank you. Advocate Bosman, do you have any questions to ask?

ADV BOSMAN: Thank you, Chairperson.

Mr Bhani, on what date did this incident take place exactly? Do you remember?

MR BHANI: Yes, I do remember, it happened on the 16th of April 1994. It was on a Saturday.

ADV BOSMAN: This was just shortly before the elections?

MR BHANI: Yes, it was before the elections.

ADV BOSMAN: And on what date did you join the SANDF?

MR BHANI: On the 18th of July when APLA was integrated at "Die Brug".

ADV BOSMAN: Was this also in 1994?

MR BHANI: Yes, in 1994.

ADV BOSMAN: At what time did you - on what date did you apply to joining the SANDF?

MR BHANI: We were integrated as APLA forces, not as individuals.

ADV BOSMAN: When did you hear that this integration was going to take place?

MR BHANI: I heard this in June 1994.

ADV BOSMAN: At the time of the incident, did you know that the election was going to take place on the 26th and 27th, 10 days later?

MR BHANI: Yes, I knew.

ADV BOSMAN: Why was it then necessary to carry out this operation so shortly before the elections?

MR BHANI: As I've already stated in my affidavit, I informed comrade Ntjebe about this. He told me that they did not get a command to suspend armed struggle. I just took an order, I was following an order.

ADV BOSMAN: But did he say what the urgency of this operation was, what was the urgency of the operation, it was more than a week before the election?

MR BHANI: I just asked him about this, I didn't ask him any other details because my job was to follow an order, to do what I was supposed to do as a soldier. A soldier follows an order because if you defy they would deal with you in a brutal way.

ADV BOSMAN: And you said that you - if I understand you correctly, you identified the target?

MR BHANI: Yes.

ADV BOSMAN: And you referred to the white people, the Boers who had taken the positions of your grandfathers, on what grounds did you identify this man? How did you identify him as a target?

MR BHANI: I identified him because he was one of the white people who were benefitting from the white government.

ADV BOSMAN: Did you know what nationality he was?

MR BHANI: I knew that he was a Boer.

ADV BOSMAN: Did you know what language he spoke?

MR BHANI: I knew that he was speaking Afrikaans.

ADV BOSMAN: I have no further questions, thank you Chairperson.

CHAIRPERSON: Thank you.

Mr Bhani, I just want to read you something from the papers before me here for your comment and I read it in respect of your statement that you said in the shop the only shots fired were those shots that you fired at the owner and you couldn't count them but it was a few. This is a statement made by a person who was employed as a cleaner at that restaurant which you attacked in Randfontein. He says:

I'm just reading a portion of it. This is page 16 of. the bundle, midway through paragraph 3 and I just read. He says:

Now that is a statement made by an employee at that place, and from that it sounds like there was random indiscriminate shooting, shooting at the ceiling, shooting geysers in the toilet, shooting television sets, what do you say to that?

MR BHANI: We couldn't do that, we couldn't waste bullets and shoot everywhere for no reason, we couldn't do that. So in other words, the person who wrote this statement is lying.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising out of questions that have been put by the panel?

MR MBANDAZAYO: None, Mr Chairperson.

CHAIRPERSON: Mr Mpshe?

ADV MPSHE: I have none, Mr Chairperson, thank you.

CHAIRPERSON: Thank you, Mr Bhani, that is the end of your testimony, you may stand down.

MR MBANDAZAYO: Thank you. Mr Chairperson, I'm calling Tapelo Maseko. Mr Chairperson, he is not an applicant, he is a witness. He is the person who gave the orders, they call him Ntjebe. Thank you. Mr Chairperson, Mr Maseko will be using Sesotho to testify.

CHAIRPERSON: Thank you. Are the interpreters ready for Sesotho? Thank you.

TAPELO MASEKO: (sworn states)

CHAIRPERSON: Mr Mbandazayo?

EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.

Mr Maseko, the affidavit which is in front of you is before the Honourable Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?

MR MASEKO: That's correct.

CHAIRPERSON: Mr Mbandazayo, could we then refer to this affidavit of Mr Maseko as Exhibit B.

MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I don't know whether you would like me also to ...(intervention)

CHAIRPERSON: I think for the benefit of the people in the audience, they haven't seen the affidavit and if his evidence is merely to confirm it it doesn't really mean much and it's not that long.

MR MBANDAZAYO: Thank you, Mr Chairperson. The affidavit reads as follows:

Thank you, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo.

MR MBANDAZAYO: Mr Chairperson, in view of the fact that I have read the affidavit on behalf of Mr Maseko, I will say that's his evidence, I have nothing more. I will leave it to the Committee and the Leader of Evidence to ask him questions on his affidavit.

CHAIRPERSON: Just one thing, Mr Maseko. Mr Bhani has referred you to as Ntjebe, do you confirm that you are also known as Ntjebe?

MR MASEKO: Yes, that's true.

CHAIRPERSON: Mr Mpshe, do you have any questions to ask the witness?

CROSS-EXAMINATION BY ADV MPSHE: I have, Mr Chairman.

Mr Maseko, have a look at your affidavit, paragraph 9. That is where you state that you were involved in 28 operations, do you see that?

MR MASEKO: Yes, I do.

ADV MPSHE: How many of these operations were carried out during the year 1994?

MR MASEKO: Do you mean in 1994, that was after the elections, I don't remember us carrying out any operations.

CHAIRPERSON: I think what he is asking you is, during 1994, we know that this operation was in 1994, how many of those operations, if any, were carried out in 1994, particularly prior to the elections, do you know? That is what I think the question is.

MR MASEKO: I don't remember them.

ADV MPSHE: Would you say this is the only operation carried out in 1994, just prior to the elections?

MR MASEKO: That's the only one that I remember, yes.

ADV MPSHE: Were there no other operations planned by your commanders throughout the country in the year 1994?

MR MASEKO: There were other operations that were planned but they never took place, this is the only operation that took place.

ADV MPSHE: Okay. What made the other operations not to be carried out in 1994, or what stopped them?

MR MASEKO: Operations were never cancelled but because we didn't have enough weapons, those operations never took place.

ADV MPSHE: Just the last question. If you look at paragraph 11, do you see that, where you mentioned items that you were to repossess in terms of the Beauty Salon operations. The jewellery you mention there, how would this help the struggle, taking a necklace and the like, how would this serve the struggle?

MR MASEKO: We would sell them so that we can get money because the only thing that we wanted was money.

ADV MPSHE: That will be all, Mr Chairman.

CHAIRPERSON: Thank you, Mr Mpshe. Advocate Motata, do you have any questions to ask the witness?

ADV MOTATA: I've got none, Mr Chairperson.

CHAIRPERSON: Advocate Bosman?

ADV BOSMAN: Mr Maseko, I just want to ask you the same question I asked the previous witness. What was the urgency of this operation so shortly before the elections, couldn't it have waited?

MR MASEKO: We received the orders from the High Command. We never took our decisions, so we were just carrying out the orders that we received from the High Command.

ADV BOSMAN: Didn't I understand that you had a sort of general order, but that you had a discretion in regard to the particular targets and the particular operations?

MR MASEKO: The commanders were in charge of the units on the ground where the people were choosing the targets.

ADV BOSMAN: I'm afraid I don't really follow. I understood your evidence to mean that you gave the order for this operation to the first applicant, is that correct?

MR MASEKO: That is correct.

ADV BOSMAN: But you did not get an order for the particular operation from higher up, this was in your discretion was it not, the time and the date?

MR MASEKO: The commanders of the unit on the ground were the people who identified the targets. So because he was the commander of that unit I gave him a go-ahead and then I said to him: "Since you have already identified the target, you can go ahead with the operation."

ADV BOSMAN: Thank you. Thank you, Chairperson.

CHAIRPERSON: Mr Mbandazayo, any questions arising?

MR MBANDAZAYO: Chairperson, it's what was arising out of what was asked by the Leader of Evidence, Advocate Mpshe. It's only one question in relation to that.

CHAIRPERSON: Sorry, I should have asked for re-examination, I'm sorry, but you can do it now.

RE-EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.

Mr Maseko, you were asked by the Leader of Evidence, was it the only operation which was carried out in 1994 and you said yes. What I wanted from that question is, are you saying that no other operation of APLA, or are you saying that no operation which was sanctioned by yourself specifically, you gave order to be carried out at that time?

MR MASEKO: The only operation I was involved in is this one and this is the only operation in which I participated and gave an order.

MR MBANDAZAYO: Thank you, Mr Chairperson.

CHAIRPERSON: Thank you. Any questions arising, Mr Mpshe?

ADV MPSHE: No questions, Mr Chairman, thank you.

CHAIRPERSON: Yes, thank you, Mr Maseko, that concludes your testimony, you may stand down, thank you.

MR MBANDAZAYO: Mr Chairperson, with your permission, Mr Chairperson, I have a third affidavit which I intended to submit after it had been signed by the ...(intervention)

CHAIRPERSON: We were given a copy of a document purporting to be an affidavit but not having been signed by any person.

MR MBANDAZAYO: Yes, Mr Chairperson, that is why I'm addressing the Committee. I had hoped that Mr Letklapa would sign here in Johannesburg, according to our arrangements. He made the affidavit whilst we were in Durban the other week. I met with him in Durban so I typed it and so we arranged that he will sign it here, though he was not going to give oral testimony to that. Unfortunately, Mr Chairperson, he is in Umtata so I'm in the hands of the Committee, whether it can ...(intervention)

CHAIRPERSON: Yes, we can receive it, we obviously can't treat it as an affidavit because it isn't an affidavit, but we can take note of the contents. We note also that it is essentially much the same as what Mr Maseko has said but obviously with less detail relating to this specific incident.

MR MBANDAZAYO: Yes, Mr Chairman. Thank you, Mr Chairperson. Mr Chairperson, with that this document which I've regarded as a statement, be made Exhibit C. That concludes the evidence of the applicant, Mr Chairperson.

CHAIRPERSON: Thank you. What is the position regarding the second applicant, Mr Diahomonaheng?

MR MBANDAZAYO: Mr Chairperson, I was phoned when I was in Durban in the office of the TRC regarding that they could not locate him and I asked them to send the notice to my office. I tried to locate him with the telephone I had from him with regard to his previous application which was in Bloemfontein, and I managed to get a person who promised to relay the message to him though he was not there, he was in Umtata.

Mr Chairperson, we did everything reasonable to contact him and I think he was contacted although I cannot vouch to that because I had another person who was going to be an applicant during the week, Khotle. I sent the message through the same person and he's here in the hearing, he managed to get it but yet the person I use as a contact did not know him, he said he's going to locate him, he knew only Diahomonaheng.

So Mr Chairperson, I've also tried Umtata. I phoned Umtata, I left messages where I was given a telephone number but unfortunately I could not get hold of him. I don't know whether somebody managed to contact him and talk to him about it.

But Mr Chairperson, I must indicate that I consulted with him, maybe the affidavit, I'm not sure whether it's there in the index here in the bundle because he made an affidavit. He was not - he has got an unsigned affidavit when I contacted him. Though he made the affidavit, Mr Chairperson, I must say that he was reluctant in pursuing his application. Well I don't know whether that may also be the reason but as of now, I can't say what the position is.

CHAIRPERSON: So the practical course to follow then, Mr Mbandazayo, would then be to just remove his application from the roll, not refuse it or anything like that but just remove it from the roll and then it would be possible then sometime in the future to have it set down if Mr Diahomonaheng expresses an interest in that or communicates. We would appreciate it that if he does communicate with you sometime in the future, if you would advise him as a matter of urgency then if he wishes to pursue his application, to get in touch with the Amnesty Committee, perhaps in the form of Mr Mpshe who is fully aware of the matter.

MR MBANDAZAYO: Mr Chairperson, I will definitely do that immediately I have contact with him. If he has an interest I will communicate with Advocate Mpshe immediately.

CHAIRPERSON: Yes, thank you very much.

MR MBANDAZAYO: Thank you.

CHAIRPERSON: Are you leading any further evidence in regard to Mr Bhani's application?

MR MBANDAZAYO: None, Mr Chairperson, that concludes the evidence on behalf of the applicant.

CHAIRPERSON: Mr Mbandazayo, are you in a position to make submissions?

MR MBANDAZAYO IN ARGUMENT: Yes, Mr Chairperson.

It is my submission that the applicant has complied with the requirements of the Act, which is Section 20(1) and (2). That at the time he acted he was acting on behalf of APLA, which is a publicly known political organisation and liberation movement which was involved in the political struggle at the time. Also, that the applicant did not act for personal gain nor out of personal ...(intervention)

CHAIRPERSON: I think it's quite clear from the evidence of the applicant and Mr Maseko, that he was acting under a direct order to conduct an operation in furtherance of the objectives of the movement.

MR MBANDAZAYO: Yes, Mr Chairperson.

And therefore, Mr Chairperson, taking into account, I wanted to address the question of the timing of the operation. Mr Chairperson, as Mr Maseko put it clearly, unfortunately I had hoped that I would have something to give the Committee, the resolution of the congress, that at the time, though Mr Chairperson, I know that the deadline for the application for amnesty is still within the confines but definitely because ...(intervention)

CHAIRPERSON: The deadline extends up to the 10th of May 1994.

MR MBANDAZAYO: Yes. But because, Mr Chairperson, the organisation to which they belonged at the time, which was leading APLA, was part of the PAC, was going to participate in the election. So definitely it was at the time alleged that it has already suspended the armed struggle, but they were keeping on carrying the armed struggle.

Mr Chairperson, it is my submission that if one takes the evidence of Mr Maseko, it is clear that as commanders they were not yet formally informed that the armed struggle has been suspended.

Now if you go with his quote in his affidavit that the PAC President has gone on record saying: "We will abandon the bullet until the ballot is secured." Not everybody will be in a position to interpret that, Mr Chairperson. I didn't manage to make ...(intervention)

CHAIRPERSON: I think this is all linked up with this whole - you know if one takes a look at the events that occurred, initially the cutoff date was even before the 16th of April and the cutoff date for incidents was extended I think, on various occasions as a result of political pressure being applied, probably for exactly the same reasons why you are arguing now, until it was ultimately extended to the 10th of May.

MR MBANDAZAYO: Yes, Mr Chairperson, because it was alleged that some of the cadres were in the battlefield, they could not be contacted and be informed properly and be advised properly that the armed struggle has been suspended. It was on that basis that negotiations were carried to cater for some incidents which occurred, because definitely if you go according to their operation is that they have to listen to their commanders before they can stop. They had been given a mandate to carry on. As I ...(intervention)

CHAIRPERSON: Because most regrettably also at that time, immediately before the elections, it wasn't the question of there being peace reigning. We know from our own bitter experiences that there were many incidents that took place around that period of time, even later.

MR MBANDAZAYO: Yes, Mr Chairperson.

Mr Chairperson, I don't want to belabour this point. I know that some of the Members of the Committee may not have, Advocate Motata, I've never supplied him with some of the documents but I made copies of the submission of the PAC with regard even to targets, so-called, one would argue that is a soft target and civilians. Document PAC where it put its submission to the TRC at a later stage when they were required to spell out their policy with regard to attack to so-called civilians, they put it clearly that they did not differentiate in their submission. That's one point I wanted to cover. I know that maybe Advocate Motata does not have it. I know the two Members, yourself and Advocate Bosman, I made photostats of some of the documents relating to that and also one of ...(indistinct) of APLA where President Makweto - it is quoted here:

Well no-one knows when the ballot will secured, whether after the elections or what but it so happened that it was done before the elections.

Having said that, Mr Chairperson, my argument is that the applicant himself attacked within the ambit and scope and orders of his party, and what he did was on behalf of his organisation and he reasonably believed at that particular point in time that what he was carrying out was carrying out the objective of his organisation. And therefore, Mr Chairperson, it is my submission and my application that the applicant should be granted amnesty, thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe?

ADV MPSHE: Thank you, Mr Chairman. Mr Chairman, I have no submission to make, save to say that the proportionality criteria should be looked into. That is all.

CHAIRPERSON: Thank you, Mr Mpshe. Are you responding to that, Mr Mbandazayo?

MR MBANDAZAYO: Mr Chairperson, I know this is one point - the question of proportionality always comes up but my argument will always be that, and it's my submission, Mr Chairperson, that proportionality should be applied to the decision makers. The foot soldiers should not bear the brunt of question of proportionality because they are not police makers, they are not decision makers, who are the people, who are the targets. They have been given a framework to operate, that here are the legitimate targets, so you have to carry out, foot soldiers.

And as such, Mr Chairperson, it's my submission that the proportionality should be carried, should be applied only to the decision makers. That is the people who give orders that these things should happen.

CHAIRPERSON: Unless of course the foot soldier exceeds the bounds of the order.

MR MBANDAZAYO: Exactly, Mr Chairperson. Mr Chairperson, my ...(intervention)

CHAIRPERSON: If the order is to go and steal a car and they go and shoot 45 people instead.

MR MBANDAZAYO: Definitely, Mr Chairperson ...[end of tape] ... they wanted money. It's a ...(indistinct) Mr Chairperson, if they were met with resistance there is no doubt that they were going to use, they were not going to. So it was one of those few things ...(indistinct) where it is known that it will be part of the whole thing if it did happen as it happened in this case. Thank you, Mr Chairperson.

CHAIRPERSON: Thank you, Mr Mbandazayo. We will deliver judgment in this as soon as possible, hopefully even this week but we'll have to discuss it. I always prefer to hand down a written decision.

ADV MPSHE: Mr Chairperson, if I may once more with your indulgence inasfar as the victims are concerned, Mr Chairman.

Mr Chairman, the wife to the deceased has since left, she has gone abroad but we have in our midst the brother to the deceased who is sitting in the hall right now, Mr Jose Gil and the surname is that of the deceased: J-A-R-D-I-M. His address, Mr Chairman, is:

109 Hans Strijdom Street, Pongola. That is all, Mr Chairman. He is present. I consulted with him, he knows about everything.

CHAIRPERSON: Thank you, and his name will be referred to the Reparations Committee as a victim?

ADV MPSHE: That is so, thank you. And that sums up the roll for the day, Mr Chairman.

CHAIRPERSON: Yes, thank you. That brings us to the end of today's proceedings. We will be continuing these hearings in this hall tomorrow where we'll start with a fresh application. Would half past nine be convenient?

ADV MPSHE: Mr Chairman, seeing that it's only one matter, even 10 o'clock would be convenient. It's only one matter, that is incident number 3, Malefane, the one that was to be heard on the 4th of November. That is the only one for tomorrow.

CHAIRPERSON: And you expect that that one will be handled in ...(intervention)

ADV MPSHE: In less than ...(indistinct)

CHAIRPERSON: Would 10 o'clock be convenient?

MR MBANDAZAYO: Yes, Mr Chairperson, it will be suitable.

CHAIRPERSON: We'll therefore adjourn now until 10 o'clock to-morrow morning, that is the 3rd of November 1998, at the same venue for the hearing, thank you.