--------------------------------------------------------------------------CHAIRPERSON: This is the 19th day of January 1999. We are continuing with the application of Mr Dingane and Mr Wanga.

Mr Dingane was - yesterday you were being questioned by Ms Patel, our Evidence Leader. Ms Patel, will you proceed from where you left off yesterday.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions for this witness.

CHAIRPERSON: Thank you, Ms Patel. Mr Motata?

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

CHAIRPERSON: Advocate Bosman?

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

CHAIRPERSON: That being so, Ms Patel and Mr Mbandazayo, are you ready to present your argument? Mr Mbandazayo?

MR MBANDAZAYO IN ARGUMENT: Thank you, Chairperson and Honourable Members of the Committee, I'm ready to present argument.

Chairperson and Honourable Members of the Committee, I'm not intending to waste the time of the Committee. Mine is a simple one in that this Committee has been presented with enough evidence to able to reach a fair and equitable decision in this matter.

I need not add anything to what has been said by the applicants in case I delude what has been said by them, unless the Committee would like me to address it on any specific point. That is all, Honourable Members of the Committee, thank you.

CHAIRPERSON: Mr Mbandazayo, what argument can you present to this Committee to show that the applicants have complied with the requirement of full disclosure insofar as the versions given by them is different in material respects when it comes to the structure of the unit that allegedly committed the offences for which amnesty is being sought under?

Mr Wanga has indicated, or has testified that the unit consisted of approximately four or five members, whereas Mr Dingane who was the commander of that unit has insisted that the unit consisted of seven members, and the names of the members are different. Mr Wanga has given names which are completely different from those given by Mr Dingane, not to mention the code names. What do you say about that requirement that worries me, that there has been no full disclosure, not going even anywhere further than that.

MR MBANDAZAYO: Thank you, Chairperson and Honourable members of the Committee. Chairperson, I think I was trying to sum it up when I said that in case I delude what they have presented before this Committee, because it means that I will be giving my own version which also will be totally different to what they have said, thank you, Chairperson.

CHAIRPERSON: Thank you very much for conceding to the difficulties that you are being presented with by your applicants.

Ms Patel, do you have anything to say in respect of the evidence that has been tendered before this Committee?

MS PATEL IN ARGUMENT: I'll be very brief, Honourable Chairperson. I do not wish to traverse the evidence that was led yesterday. It is clear that there were so many inconsistencies, that besides the inconsistencies the versions that were given to us were so highly improbable. Both the applicant's political motivations was highly doubtful, given their lack of knowledge on even basic information about the organisations that they belonged to.

It is my respectful submission that both the applicants have not met the basic requirements of the Act, and I respectfully request that the applications for amnesty in respect of both the applications be denied.

CHAIRPERSON: Thank you. This Committee is unable to pronounce its decision on this application because we still have an outstanding application for Mr Dingane which will be standing down until tomorrow morning. Once we have finalised that application we will then be in a position to give our decision in respect of all the applications that Mr Dingane and Mr Wanga have applied for.

We are however - Ms Patel and Mr Mbandazayo, we are in a position to pronounce what we ...(indistinct) in respect of the matter that we heard yesterday morning, and that was the matter of Mr Mfazo.

F I N D I N G

This is our decision in respect of the matter of Mr Mxedisi(?) Geoffrey Mfazo whose application was heard by this Committee on the 18th day of January 1999.

Mr Mfazo applied for amnesty in respect of the killing of Mr Thozamile Mtoni(?) at Newport on the 4th of April 1993. He was convicted of murder on the 26th of May 1995 and sentenced to five years imprisonment. He has since been released from prison.

In his application, Mr Mfazo stated that he was attacked in a shebeen by two ANC supporters, one of whom was the deceased, after they had taunted him for being a PAC supporter. At this hearing, Mr Mfazo unequivocally stated that the reason for the killing was because of an argument that he and the deceased had had over a girl. And to quote his evidence he said:

In cross-examination by Ms Patel and when questioned by the Chairperson, he once again reiterated that the ANC was against him because he was a PAC supporter but that in fact the grudge was about the girl and that was what sparked the whole argument.

In the light of the above, this Committee finds that there was no political motive for the killing, as required by the Promotion of National Reconciliation Act 34/1995 and accordingly the applicant has not satisfied the requirements of Section 21 of the above Act, and his application is accordingly REFUSED.

That is our decision, Mr Mbandazayo.

MR MBANDAZAYO: Thank you, Chairperson and Honourable Members of the Committee.

CHAIRPERSON: Ms Patel, are we in a position to proceed with the next matter? We are aware that yesterday we had made provision for the next matter to commence at

10 o'clock.

MS PATEL: I see that the attorneys for the next matter have not arrived yet, Honourable Chairperson, but they said that they were on their way.

CHAIRPERSON: We will then adjourn until I think the attorneys arrive, which we expect to be around 10 o'clock. Will you then just call us once they are here?

ON RESUMPTION:

CHAIRPERSON: We are now going to proceed to hear the application of Thamsanqa Oliver Mali and Lindile Johnny Stemele.

The Panel hearing this application comprises Advocate Motata who is on my right-hand side, Advocate Bosman and myself, Sisi Khampepe. Will the legal representatives who are going to be involved in this matter kindly state their names for the record.

MR NYOKA: Thank you, Honourable Chair, my name if Mpumelelo Nyoka, a local attorney. I'm representing both the applicants.

MR SCHUBART: May it please you, Chairperson, my name is Leon Schubart, I'm representing the family.

CHAIRPERSON: And you, Sir? Is he your instructing attorney?

MR SCHUBART: My instructing attorney is Mr de Villiers of de Villiers Mac Williams.

CHAIRPERSON: Thank you.

MR SCHUBART: Thank you, Chairperson.

MS PATEL: My name is Ramula Patel, Leader of Evidence for the Amnesty Committee.

CHAIRPERSON: Mr Nyoka, are we ready to commence?

MR NYOKA: Yes, Chairperson.

CHAIRPERSON: You may do so, Sir.

MR NYOKA: I call first Mr Tamsanqa Mali to testify.

CHAIRPERSON: What language does he speak, Mr Nyoka?

MR NYOKA: He speaks Xhosa.

MR NYOKA: I'm sorry, he is disabled, temporary disabled. He is using a wheelchair.

CHAIRPERSON: I'm sorry about that, I wasn't aware. TAMSANQA OLIVER MALI: (sworn states)

CHAIRPERSON: Please proceed.

EXAMINATION BY MR NYOKA: Thank you.

Mr Mali, when were you born and where?

MR MALI: I was born in 1969 on the 15th of January - I was born in 1969 on the 30th of January here in Port Elizabeth, number 20, Mtanga Street.

MR NYOKA: And your schooling qualifications?

MR MALI: I passed standard 10(?) (standard 7 (sic)) at Mzizundu in 1985 and I left in 1985.

MR NYOKA: Did you at any stage belong to an organisation, political organisation?

MR MALI: Yes, I'm an ANC member and MK member. I joined MK in 1985. I joined the ANC in 1985 and I became a member of Umkhonto weSizwe in 1985.

MR NYOKA: Did you join it whilst here in PE or elsewhere?

MR MALI: I joined in exile. I left South Africa and I joined ANC in exile.

MR NYOKA: You are applying for amnesty for three offences, the first one is murder, the second one is two counts of attempted murder and the third one is attempted robbery, is that so?

MR MALI: Yes, that is correct.

MR NYOKA: Please briefly tell us about this incident, briefly in your own words briefly.

MR MALI: In 1991 I was involved in the Self Defence Unit under the ANC ...(intervention)

MR NYOKA: Sorry, when you came back in 1991 - the interpreter did not include that, when you came back in 1991 to South Africa ...(intervention)

MR MALI: When I came in 1991 - will you please repeat the question?

MR NYOKA: When you came back to South Africa in 1991, you must be clear, you came back to South Africa in 1991. That was my question.

CHAIRPERSON: Mr Nyoka, will you just rephrase your question again for your client?

MR NYOKA: You left South Africa in 1985 to join MK and you came back in 1991 to South Africa. That is my question.

MR MALI: Yes.

MR NYOKA: Thank you.

MR MALI: Yes, that is correct.

MR NYOKA: Proceed.

MR MALI: In 1992 on the 17th of August we left after having some information. We went - in 1992 on the 17th of August we went to Mr de Villiers' house. We were looking for arms, or we wanted arms or weapons. That's where this incident took place.

MR NYOKA: Before that happened, what caused you to go to that house? What was the brief background to that?

MR MALI: We needed arms. We wanted arms to protect South Africa. That is why we went to the house.

CHAIRPERSON: Sorry, may I interpose? Did you say you needed arms to protect South Africa?

MR MALI: Yes, the community of South Africa, or the people of South Africa.

CHAIRPERSON: Yes, you may proceed.

MR MALI: As we were there in that house, in Mr de Villiers' house, as we were waiting there, we were waiting for him and he came and the incident took place. That's when this incident took place. He died there and he died there because the four of us, it was myself, Xholani Xnani, Kenneth Nkomo, Lindile Johnny Stemele, as we were waiting for him because he was not there at the time but when he came, we were waiting for him in his house next to the flowers that were there in his house. When he was still in his car we drew our guns, we were trying to stop him. We didn't want him to get into the house, we wanted to get into the house with him. The person who was a passenger in his car went out of the car and went straight into the house, into Mr de Villiers' house. We didn't know that there was another person in the car, at the back.

One comrade who was in our company, Kenneth Nkomo had a firearm that was not working properly. The trigger was not working properly. When he tried to pursue this gentleman, he misfired, he fired by mistake and therefore we didn't succeed with out mission. We were not successful in our mission.

As I was there myself, Lindile, Xholani and Kenneth, there was nothing else to do because we failed in our mission because the person ran straight into the house and we didn't know what was going to happen thereafter.

There were people who were looking, who were peeping through the windows and Xholani fired at them. After that he shot at the deceased. He shot him at the waist because he wanted to get a chance to run away because we did not intend to kill him but we wanted to demobilise him and we did not want him to chase us. But if you have a firearm, a person can die.

We went there and we knew very well that anything can happen because we had firearms. It's obvious that we wouldn't go there to get arms and we'd go there barehanded, knowing very well that people there could be armed.

In that process Mr de Villiers was shot at but Xholani Xnani. He was shot at in his waist and that was not our intention. That was not our intention but I was also part in that process. After shooting him we realised that there was nothing else we could do and we had to run away, we had to go back. Because there was nothing else to do, we could do nothing. We went back to the place where we were coming from.

CHAIRPERSON: On foot. I think that was the evidence.

MR MALI: Yes, we left Port Elizabeth on public transport, the public transport left us next to the orange factory and we walked to his house. We did not have transport, we went back on foot.

We used different routes to where we were going because we did not want to use the same route. We walked through the forest and we went through the township called Zwelitsha.

MR NYOKA: Then you got arrested?

MR MALI: Yes, we were arrested.

CHAIRPERSON: Mr Nyoka, before you get there, just to be able to get the sequence of events, I see you also have an affidavit which is very well prepared. I don't know whether you actually want us to incorporate it in Mr Mali's evidence. There is a lot which he has left, which we haven't yet covered. Are you still going to come back to that aspect before you actually get to the arrest or do you propose to deal with the arrest and then come back to the information which he has not covered, which is incorporated in the affidavit?

MR NYOKA: I was going to couple to what he has left. He has a lot, Honourable Chairperson.

You got arrested.

MR MALI: Yes.

MR NYOKA: You told us that you took it upon yourself to defend the people of South Africa, why did only the four of you go there, and what exactly was the purpose?

MR MALI: Our intention was to get the arms or weapons, that was our intention.

MR NYOKA: What led you to go and fetch the weapons, did you get an instruction or did you take it upon yourselves? Can you tell us what led to that?

MR MALI: After coming back from the exile I got involved in the Self Defence Units. We were called to the Standard House where the people who were coming from the exile were gathered, who were called by Mr Chris Hani.

MR NYOKA: Is the Standard House Building, the regional offices of the ANC? If so, please specify.

MR MALI: Yes, that is correct. Yes, that is correct, those are the regional offices of the ANC. We were called to go to those offices. There were ...(intervention)

CHAIRPERSON: Sorry, we didn't get the translation of the evidence.

INTERPRETER: No, I just wanted him to clarify what it is when he says ...(Xhosa).

CHAIRPERSON: Thank you.

MR MALI: In this meeting at the Standard House we were told that because of our condition or situation here in Port Elizabeth, we couldn't get arms. That was discussed in that meeting at the Standard House where Mr Chris Hani was present.

We were requesting him - we wanted to know whether we were to get some arms or something but Mr Chris Hani ...(intervention)

CHAIRPERSON: Mr Mali, when you are testifying here I'd request you not to be fast, just to go slowly because the interpreter is supposed interpret and say your evidence in English. So if you are quick it will be difficult for her to interpret everything, thank you. I apologise for that. You can continue.

MR MALI: We told them about the problems that we were experiencing here in Port Elizabeth because we couldn't get firearms.

When Mr Chris Hani was responding to that he said: "It's not only Port Elizabeth that was facing the problem with firearms, that is a national problem because even in the other provinces they are experiencing the same problems."

But he said if it is possible for a person to get some arms somewhere else, a person can make use of that opportunity. He did not give us direct instructions like: "You can go to such and such a place", or something like that.

As the soldiers, trained soldiers, we had to use our own initiative to try and make sure that we get the arms. That is what led us to go and try to get the firearms, and that is why I am here today to tell about that.

MR NYOKA: Were you part of an SDU structure subsequent to the meeting?

MR MALI: Yes, I was.

MR NYOKA: Tell us more about that.

In this meeting - I went to the meeting because I was already part of the SDU structures but the problem was that we did not have firearms.

After this meeting it's when I met with Mr Xholani Xnani who is now deceased. We formed our own unit. It was myself, Xholani, Kenneth Nkomo and one gentleman who was trained by him, that's Lindile Johnny Stemele and MJ. We formed that unit that had eight members.

MR NYOKA: Who was the commander, the leader of the - who was the commander or the leader of the unit?

MR MALI: The commander of our unit was Xholani Xnani.

MR NYOKA: Is it the one who passed away during the Court hearing in 1993?

MR MALI: Yes, he is the one.

MR NYOKA: What was the affiliation of the SDUs, were they affiliated to any organisation, and if so, which one?

MR MALI: Yes, they were affiliated to the ANC organisation.

MR NYOKA: And that was understood by the organisation as such, that the SDUs are affiliated to the ANC, not so?

MR MALI: Yes, that is correct.

MR NYOKA: I wish to refer the Honourable Committee to page 64 of the bundle.

Mr Mali, there is a letter from the ANC, written by the representative at the time, Mr Thembisi Mbatha, to the TRC, where is he says that - I wish to quote the second, sorry the first, the second line:

I'm sure there it is not s-a-i-d, it s-a-d.

What is your comment about that?

MR MALI: First of all, in 1991 there was a meeting at the Standard House, and at that time Mr Thembisi, the one who is who is quoted in this letter, was not working in this province and I am sure that he does not have any knowledge about this meeting.

Quoting Mr Chris Hani's name wrongly will be a very bad thing for me, if I can use his name just because he is now late. I know he was there. I also asked a question, I posed a question to him. As they are saying that Xholani Tjebilisa is not known or cannot be traced, Xholani Tjebilisa met with the other investigators from the TRC.

CHAIRPERSON: May I find out whether this Xholani Tjebilisa is the same as Xholani Xnani to whom you have already alluded?

MR MALI: Xholani Tjebilisa is not the same as Xholani Xnani.

CHAIRPERSON: Who is Xholani Tjebilisa who is being referred to in this letter?

MR MALI: Xholani Tjebilisa is the one whereby Xholani Nxani would report to him. Whenever there was a, there would be a problem, Xholani would go and report. He was not a commander of the unit but whenever there was a problem Xholani would consult him.

CHAIRPERSON: What position did he hold in the ANC in Port Elizabeth?

MR MALI: He was not in any position, he is in the army now.

CHAIRPERSON: Why did Xholani Nxani report to him? In what capacity was Xholani Nxani reporting to Xholani Tjebilisa?

MR MALI: He used to go to him for an advice because he used to be his commander in the exile. Xholani Tjebilisa would take that responsibility because Xholani Xnani used to be his support in the exile. Whenever there was any kind of problem he would go to him for advice.

CHAIRPERSON: You may proceed, Mr Nyoka.

MR NYOKA: Thank you.

Did you - so the impression that you acted on your own for purely criminal motives, that you were using the name of the late Mr Hani is not true, is that so?

MR MALI: Yes, that is not true.

MR NYOKA: On page 9 there is an affidavit of yours, do you wish to confirm all its contents, page 9 to page 16 of the affidavit? Do you confirm the statements - do you want us to confirm the statement's contents?

MR MALI: Yes, I do.

MR NYOKA: Just two more points. You said you drew guns at the scene, who was having guns amongst the four of you?

MR MALI: It Xholani Xnani and Kenneth Nkomo. Those are the people who pointed guns at Mr de Villiers.

MR NYOKA: But did you associate yourselves with their actions?

MR MALI: Yes, I do associate myself with their actions, for pointing guns at Mr de Villiers, because we went there to get arms. I do associate myself with those actions.

MR NYOKA: In Court you did not testify, you were convicted on the basis of your confessions. Your confession is not the same as what you are saying today, what is your comment?

MR MALI: I'm here to tell the truth. In Court, as we know very well what used to happen in the past, more especially regarding blacks, there was no justice for us. We were protecting ourselves and trying to protect the other people who were in our unit. That is why I said what I said in Court. It is for that reason.

I said I was protecting the other people who were in my unit or in our unit.

MR NYOKA: No, you did not testify in Court, you made a confession. The confession was handed in at Court. You did not testify in Court, not so?

MR MALI: Yes, I did not testify. I did cooperate with the Court and they did whatever in their hands.

MR NYOKA: You found out that the deceased unfortunately was helping the ANC about the Cradock 4, what did you feel about that at the time, after discovering that the victim was actually your ally?

MR MALI: That was very sad because if we knew that this person had that kind of information, we wouldn't do what we did, we wouldn't go to his house but we did not know. That situation, that was very bad.

MR NYOKA: Honourable Chairperson, with the leave of the Committee I just wish to hand only one bundle. This is the ANC guidelines on Self Defence Units, which I was fortunate to get from the Internet, just for the Committee's perusal and also for the family's attorneys. Can someone take this?

CHAIRPERSON: Shall we allocate a number to that bundle?

MR NYOKA: Exhibit A.

CHAIRPERSON: Will that be Exhibit B, then the application can be Exhibit A.

MR NYOKA: Thank you.

Finally, Mr Mali, I just wish to refer to page 9 of these SDU Guidelines, under paragraph 6:

Do you confirm the first line that ...(intervention)

INTERPRETER: The speaker's mike is not on.

MR NYOKA: Sorry, sorry.

Page 9, paragraph 6, the first line under:

Do you confirm the statement that:

Second line:

Do you confirm those two, that you subscribe to them or not?

MR MALI: Yes, I do confirm that.

MR NYOKA: And do you confirm the next passage under:

The first line that says:

Do you confirm that?

MR MALI: Yes, I do confirm.

MR NYOKA: Finally, what you have to say now, now that you have told us that you committed this ...(intervention)

CHAIRPERSON: Mr Nyoka, may I interpose? In what context is he confirming this? Unfortunately I do not have a copy of page 9.

MR NYOKA: You don't?

CHAIRPERSON: I don't, but you can proceed. I think I will be able to get a copy from Ms Patel. In what context is Mr Mali confirming?

MR NYOKA: He says that they were members of the SDUs, did they the SDU subscribe to what I've read to him or maybe they subscribed to something else than this. That is what I want to know because this was just a general document for SDUs. I want to know whether they subscribed to that or to something else, Honourable Chair.

CHAIRPERSON: Did they know about this document or were they told the contents of this document? Isn't that what you should be asking him?

MR NYOKA: Yes, I should.

CHAIRPERSON: Yes.

MR NYOKA: Mr Mali, did you know about this document before or at the time that you were the SDU unit?

MR MALI: Yes, we had some knowledge about this document.

MR NYOKA: When?

MR MALI: As a trained person I knew that if, what were the requirements if you were training people, what are the do's and what is it that you should tell them and what are the requirements.

MR NYOKA: And what ...(intervention)

CHAIRPERSON: Was this document, were the contents of this document, which I think has become quite common cause, we've heard a lot about this document for the sake of our lives, were you made privy to the contents of this document, if so, when? I think that is the question Mr Nyoka is posing to you and you have not meticulous or directly answered to.

MR MALI: The document was not in our hands but we did have this knowledge.

CHAIRPERSON: I don't mean you having a copy of the document, I want to know if you were informed of the contents of this document and if so by whom and when.

MR MALI: Will you please repeat your question?

CHAIRPERSON: Were you aware of the contents of the documents that - you've been referred to page 9 and you've confirmed that you are aware of the contents of page 9, how are you aware of the contents of page nine, were you informed by anyone in particular and if so, who was that person?

MR MALI: I'll respond as follows: during my training, as I was getting my training, I was trained to know what to do if I get a unit and get the responsibility to train the people. I got that information from the exile. I had that knowledge.

CHAIRPERSON: You may proceed, Mr Nyoka.

MR NYOKA: So you are saying that you are not as such acquainted fully with the contents of this document?

MR MALI: I do have knowledge but not everything in that document. I do have some knowledge about this document but not everything in this document.

MR NYOKA: You have come here to tell us then what happened, what do you have to say now to the family? You know you have come to tell us - you say what you are saying is the full truth and that it is politically motivated, but what do you say to the family of the victim?

MR MALI: To the family of the deceased, all I can say is this. I'm deeply sorry, I apologise for what I did to them and my apology is not just coming from the air, it's coming from the bottom of my heart because whatever happened there, I did not have any intentions to do that.

MR NYOKA: No further questions, Honourable Chair.

CHAIRPERSON: Thank you very much, Mr Nyoka.

Mr Schubart, do you have any questions to pose to Mr Mali?

MR SCHUBART: Yes, thank you, Honourable Chairperson. If I might pose some questions and then perhaps ask for a short adjournment just to look at the guideline. I might have further questions thereafter, but if I could carry on in the meantime?

CHAIRPERSON: Yes, you may do so and we will provide you an opportunity to go through the document. We are aware that you were not made privy to the document timeously.

CROSS-EXAMINATION BY MR SCHUBART: Mr Mali, you gave evidence that the meeting that you attended at which Mr Chris Hani was present, was that held in Port Elizabeth?

MR MALI: Yes.

MR SCHUBART: And I think you indicated to us that the reason by Mr Mbatha wasn't aware of the meeting is because Mr Mbatha wasn't here in Port Elizabeth in 1991, is that correct?

MR MALI: Yes, at the time he was not working here in Port Elizabeth, he did not have knowledge about this meeting.

MR SCHUBART: When did Mr Mbatha come to Port Elizabeth?

MR MALI: I don't know but during the time of the meeting I knew him as working at the border region. He was not here in Port Elizabeth so I don't know as to when did he come to Port Elizabeth.

MR SCHUBART: When exactly was this meeting held?

MR MALI: It was held in August in 1991 but I cannot remember the date.

MR SCHUBART: Now at that meeting I understand from what you've said, you were told to obtain firearms, is that correct?

MR MALI: Yes, that is correct. In this meeting we studied our problem concerning firearms. As we were still stating our problem we were told that the problem with firearms was not the problem for Port Elizabeth only, but if there is a chance for one to get some firearms, we could use that opportunity but we were not told as to where to go to get those firearms.

MR SCHUBART: And subsequent to the holding of this meeting, did you take any steps to obtain firearms prior to the incident in which Mr de Villiers was involved?

MR MALI: No, we wanted to get these firearms. Mr de Villiers' place was the first place that we targeted. There was no other place that we heard about, but we got information about this one.

MR SCHUBART: Because the incident involving Mr de Villiers, this took place about a year after the meeting with Mr Hani, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: So you say in that period of about a year, no steps were taken by you at all to obtain firearms prior to this incident?

MR MALI: We were trying but we couldn't get anything, there was no place where we could get arms. This ...(indistinct) was the first place where we - that was the first place that we targeted.

MR SCHUBART: Did you know if Mr de Villiers had firearms?

MR MALI: According to the information that we got, we knew that he - according to the information that we got, we knew that he had firearms in his house, he had weapons.

MR SCHUBART: And who gave you that information?

MR MALI: Lindile Johnny Stemele, the one sitting next to me, in his place of employment he was chatting with his friend and it looked like he was working in that farm. Sammy Xagwana was the gentleman that he was chatting with.

As they were chatting it came out that there was this gentleman who had firearms, who had weapons. He went to a person that was Xholani Xnani, the one he was training, Xholani Xnani. There was Xholani Xnani and Lindile Stemele and Sammy Xagwana. Sammy Xagwana took them to the place.

He showed the house to them. They wanted to check where the house was and Sammy Xagwana was showing Xholani and Lindile. So we got information - the information was from Sammy Xagwana, the one who was working on that farm.

MR SCHUBART: And did he tell you what weapons Mr de Villiers had?

MR MALI: According to the information that I got, they said there were different weapons. They said he had all the kinds of weapons.

MR SCHUBART: Did you have any idea what kinds of weapons?

MR MALI: The names of the weapons were not mentioned but we were told that weapons can be found in that house but the names of the weapons were not mentioned.

MR SCHUBART: And where in the house would the weapons be found?

MR MALI: They said the weapons were in the house.

MR SCHUBART: Do you know where in the house the weapons were?

MR MALI: No, I did not know the place. We hoped that if we get inside the house with Mr de Villiers, he would tell us where to find the weapons but I do not know how does that house look like inside.

CHAIRPERSON: Mr Mali, I think what Mr Schubart wants to know is whether when you were advised by Xholani about the presence of arms in the deceased's house, were you also informed of where exactly in the house the weapons were kept.

MR MALI: No, we were not told where the weapons were kept but we knew there were firearms, there were arms in the house. We would get that information when we were inside.

We were not told where exactly inside the house the weapons were. Weapons can be kept in the safe, weapons can be kept anywhere, we would get them anyway.

MR SCHUBART: The person who gave you the information about the weapons, had he ever seen the weapons?

MR MALI: He was working there on that farm, the person who gave us this information.

MR SCHUBART: Yes, but had he ever seen the weapons?

MR MALI: As a person - it's obvious that he knew the place. He was working on that farm and he knew the gentleman, that is Mr de Villiers.

MR SCHUBART: Did he tell you if he'd ever seen the weapons?

MR MALI: According to the information that I got from Xholani, this gentleman was working on that farm and he said there were weapons in that house but he did not mention whether he saw the arms or not, but he knew very well that there were arms there and he knew this gentleman.

MR SCHUBART: You see because I find it strange if the person who'd worked there and who told you about the firearms, if he really knew they were there and if he knew where they were, that he didn't tell you where they were. When I say where they were I mean where in the house they were. Do you have any comments on that?

MR MALI: The reason for us to believe that he knew something about the weapons, we knew that the farmers are always in possession of weapons. They are always armed. That is the reason we believed him, that he knew that there were weapons and he might have seen them because he was working there.

If you are working at a certain place it is easy for you to see things or items in the house or in the place.

MR SCHUBART: Yes, but again, if he saw the weapons then I would have expected him to tell you where in the house he saw them so that you'd know where to get them. Can you explain why he then wouldn't tell you where he saw them if he had seen them?

MR MALI: This gentleman, Sammy Xagwana did not have any discussion with me but he discusses with Johnny Stemele, the one that he was working with on this farm. I knew that farmers are armed. The details of the whereabouts would be known by the person who was working there.

MR SCHUBART: Did any member of your group know where the arms were kept in the house? When I say "your group" I mean the group who went there on the night of the incident.

MR NYOKA: Sorry, Mr Chairperson, there was no completion of the translation. The witness said the person who is next to me will know that there's no ...(indistinct)

CHAIRPERSON: Can that be properly translated?

MR MALI: I did not have any discussion with him, he was discussing with the person who was a member of the Self Defence Unit, Lindile Stemele, the one who is sitting next to me. So we did not discuss that with him, he discussed it with Lindile Stemele. T

hat is why I do not have knowledge about the firearms and where were they inside the house, but I knew very well that farmers are always armed. That is why I believed that.

MR SCHUBART: Thank you. Did Mr Stemele know where the arms were kept in the house, or any other member of the group that was with you that night?

MR MALI: Yes, I think he knew because what was mentioned was the safe. They said the firearms, the weapons were in the safe.

MR SCHUBART: Who mentioned that and when was it mentioned?

MR MALI: It was Johnny, Sammy Xagwana mentioned that. He was telling Johnny Stemele.

MR SCHUBART: So did Sammy tell you that he told Mr Stemele that the guns were in the safe?

MR MALI: Let me tell you about Sammy. I did not see -I did not meet with Sammy.

MR SCHUBART: Sorry, then I don't understand your answer. How did Mr Stemele know that the guns were in the safe?

MR MALI: Let me put it like this. Mr Stemele was working with Sammy Xagwana. I did not discuss anything with Sammy Xagwana, this is the information that I got, that Sammy Xagwana brought this information. I don't know Sammy and I never spoke to him but he gave information to Lindile Stemele. I never had any contact with Sammy.

MR SCHUBART: Can we just go back to a previous question then, did Mr Stemele know where the guns were kept in the house?

MR MALI: As a person who had a discussion with him it's obvious that he knew where the guns were because a safe was mentioned. It was mentioned that the firearms, the weapons were in the safe.

MR SCHUBART: When was this mentioned that the weapons were in the safe?

MR MALI: Lindile Stimela told Xholani Xnani, the one he trained.

CHAIRPERSON: When? When could Mr Stimela have been told by Sammy that the guns were kept in the safe?

MR MALI: Let me respond like this. I never had any contact with Sammy Xagwana. The person who was in contact with him, as I've mentioned in the application, is Xholani Xnani, Lindile Stemele and Sammy Xagwana went to look for this house.

The person who was in contact with these people was Sammy Xagwana. He was communicating with Xholani Xnani and Lindile Stemele. I never communicated with Sammy but I know that Sammy is the one who brought this information to these comrades.

CHAIRPERSON: When were you told by Stemele that he had been told by Sammy Xagwana that the guns were kept in the safe, when were you apprised by Stemele about the presence of the guns in a safe in the deceased's house?

MR MALI: I got the report from the late Xholani Xnani that the situation was like that, there was a place where we could get arms.

CHAIRPERSON: But how did you know that Mr Stemele had been told by Xagwana that the guns were kept in a safe, were you told that by Mr Xholani Xnani?

MR MALI: Yes, I was told by Mr Xholani Xnani that he got information from Lindile Stemele who was one of the people who were trained by us. He told us that there was information that there is a place where arms can be obtained.

He told me where these arms could be found. He mentioned a place and he said they've been to the place, they've to check the place. That is the information that I got.

CHAIRPERSON: So there was never an occasion when you spoke to Stimela about the presence of arms in Mr de Villiers' safe? There was never an occasion when you two spoke?

MR MALI: Mr Stemele told us that he got that information from Sammy Xagwana, that there were arms that could be obtained in the safe inside the house.

CHAIRPERSON: Thank you. Mr Schubart, you may proceed.

MR SCHUBART: Thank you.

And was this information then given to you prior to your going to the house on the night of the incident?

MR MALI: We got that information - what happened was this. We got this report from Sammy Xagwana. They left, that was Sammy Xagwana and Xholani Xnani and Lindilie Johnny Stemele. They went to look for the house. They went to inspect the place or to reconnoitre

the place.

MR SCHUBART: As I understood your answer to the Honourable Chairperson, is that you were told that the guns were in the safe, and my question to you is, was that before you went to the house on the night of the incident?

MR MALI: Yes, that is correct.

MR SCHUBART: So by the time you got there you knew exactly where in the house the guns were kept?

MR MALI: We did not get inside the house, we would be told by the owner of the house as to where to get what we were looking for.

CHAIRPERSON: No, just answer a simple question. Before you went to Mr de Villiers' house you knew that the guns were kept in a safe, the night before you went there. That is the question.

MR MALI: Yes, we knew that.

MR SCHUBART: Thank you.

Did you know how many firearms Mr de Villiers had?

MR MALI: No, I did not have knowledge as to how many firearms were there but we knew that there were arms to be obtained there.

MR SCHUBART: You indicated a little while ago that it was common knowledge that farmers had firearms, is that correct?

MR MALI: Yes, I said so.

MR SCHUBART: And was it expected that all farmers had firearms, certainly at that time?

MR MALI: Yes, as we were regarded farmers as police reservists, we knew that all the time they are armed, they are always armed.

MR SCHUBART: Now if it was known to you that farmers have firearms, why didn't you take any steps from the time that you had the meeting with Mr Hani in August 1991 until 1992, to obtain arms from other farmers?

MR MALI: The reason for that is we wanted a place where we knew exactly that there were weapons. But yes, we knew that all the farmers were police reservists but when we got that information we decided to take that opportunity.

Yes, we would do that but it happened that we waited until we got that report because we were on the lookout during that process. We were looking for other places as well. It was not easy and the problem that we had I told you, that we did not have arms or weapons.

It was not easy for us to just go armed with knives to places where we know very well that the people were armed. We did not have firearms and when we got these firearms and we already had this place, we already heard about the place.

CHAIRPERSON: I'm a little confused, may I interpose, Mr Schubart?

I'm a little confused about your response to the question which was posed to you. You say the reason why you couldn't take any steps to obtain weapons from any of the farmers that you knew had firearms in their farms was because you were still looking, I think you mentioned that you were still looking, you didn't have firearms, you wanted a place, I couldn't just make proper sense of the reasons you were advancing.

MR MALI: I apologise for that. What I wanted to explain is this. We did not have firearms. It was not easy for us to go to the farms with knives, armed with knives. Fortunately we got these firearms, we got this firearm and there was this information that we had already received and we went to that place and we already had arms by then because it was not easy for us to get the firearms.

CHAIRPERSON: So basically the reason why you didn't take any steps at all until the 17th of October, is because you did not have weapons to use to get to the farms to get the firearms that you knew were present in those farms and secondly, you did not have information from anyone about the presence of firearms. What information are you referring to?

MR MALI: Let me explain like this. We had a problem with guns, we couldn't obtain weapons.

CHAIRPERSON: I understand that.

MR MALI: Pardon?

CHAIRPERSON: I understand that.

MR MALI: When we got the weapons, weapons that we got from Archie and the one that belonged to Xholani, and now there was this information that we could get, there is a place where we could get more firearms. That is why we went to the place, because that happened at the time when we got, that happened when we had firearms from Xholani and Archie.

CHAIRPERSON: Yes. So you committed this offence because you had firearms which you had not had previously and you also had information from Xagwana about the kinds of firearms that were present at Mr de Villiers' farm, those are the reasons you are advancing? Do I understand your evidence correctly?

MR MALI: Could you please repeat.

CHAIRPERSON: The reason why you committed this offence was because you had firearms which you were able to use in the commission of your offence. Secondly, you had information from Sammy Xagwana about the kinds of weaponry that was kept at Mr de Villiers' farm. You are advancing two reasons?

MR MALI: The reason for us to go to Mr de Villiers' house, we were looking for arms.

CHAIRPERSON: No. The reason why you did not look for arms in other farms was because you were not armed, you did not have the necessary weapons and you didn't have information. You were able to commit the offence because you now had weapons which you had obtained from Archie, that is your evidence, and you also had information from an informant, Sammy Xagwana. Do we understand your evidence? We simply want to make sure that we understand your evidence. Yes, or no? Is that a "yes", Mr Mali?

MR MALI: I'm saying we got this information - will you please repeat the question?

CHAIRPERSON: Are the reasons that you advanced why you committed the offence for which you are seeking amnesty, the following: the fact that you were given arms by Archie and secondly, that you were given information by your informant, Sammy Xagwana?

MR MALI: We went to that house because we were looking for arms. We went to Mr de Villiers' house because we were looking for arms. We did not have arms but after receiving the arms and we also got this information at the same time, because we were stranded, we did not have firearms. We were looking for arms, and when we got these firearms and at the same time there came this information about Mr de Villiers' house where arms could be obtained, that is ...(intervention)

CHAIRPERSON: Yes. Now the reason why I'm asking that is because Mr Schubart asked a pertinent question, and his question was: "Why did you not take any steps to obtain weapons from other farmers?" Because in your earlier evidence you had said you knew that all farmers had weapons and you went on to explain why you had not taken any steps to obtain weapons from other farmers, and the reasons you advanced was because of the lack of weaponry from your side and lack of information, and I just wanted to make sure that I understood you correctly.

You may proceed, Mr Schubart.

MR SCHUBART: Thank you. The members of your unit, of your SDU, did any of them have weapons prior to your going to Mr de Villiers' house?

MR MALI: We took two firearms to that house, one was borrowed from Archie and the other one belonged to Kenneth Nkomo.

MR SCHUBART: Before this incident did you know Archie?

MR MALI: Yes.

MR SCHUBART: Did you know him well?

MR MALI: Yes, he was a member of Umkhonto weSizwe.

MR SCHUBART: How long had you known Archie?

MR MALI: I met him in exile and he was not staying far from where I was staying here.

MR SCHUBART: When you met him in exile did he tell you that he had a firearm in his possession, or that he had access to a firearm?

MR MALI: I met Archie here inside. Concerning the weapons, I didn't discuss the weapons issue with him in exile.

MR SCHUBART: When did you discuss the weapon issue with him?

MR MALI: The person who went to Archie to borrow the firearm was Kenneth and Xholani Xnani. They are the people who went to him. I did not go with them.

MR SCHUBART: Why did they go to Archie to borrow the firearm?

MR MALI: It is because we had one weapon that had a difficulty with the trigger, the one that belonged to Kenneth. Kenneth knew that Archie had a firearm that he could borrow us.

MR SCHUBART: Alright, you said the one firearm you got from Archie, the other one, was that Kenneth's own firearm?

MR MALI: Yes, it was his firearm, the one that had a problem with the trigger.

MR SCHUBART: And how long had Kenneth had this firearm prior to the incident at Mr de Villiers' house?

MR MALI: He just got the firearm, it was not a long time.

MR SCHUBART: Can you tell us how long?

MR MALI: I think it was about a week or so but the firearm had a problem, so that is why they went to borrow Archie's firearm and then we went to this house.

CHAIRPERSON: Mr Schubart, may I intervene at this stage and request, with your indulgence, to allow us to adjourn for a few minutes and to reconvene after 15 minutes.

ON RESUMPTION

CHAIRPERSON: Mr Mali, may I remind you that you are still under your oath.

MXEDISI GEOFFREY MFAZO: (s.u.o.)

CHAIRPERSON: Mr Schubart?

CROSS-EXAMINATION BY MR SCHUBART: (Continued) Thank you.

Mr Mali, when was your SDU formed?

MR MALI: It was formed after the meeting with Mr Chris Hani.

MR SCHUBART: Was it formed immediately after that meeting?

MR MALI: Yes, after the meeting we formed our unit.

MR SCHUBART: Now I think you told us there were eight people in your unit, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: Who were the people who formed the members of your unit?

MR MALI: It was myself, Xholani, Lindile Stemele, Kenneth Nkomo. Lindile Stemele was recruited by Xholani and I also had people who were under me, the comrades like M J Nxexe who passed away, Michael and two other recruits that were under me.

CHAIRPERSON: Do you have their names?

MR MALI: One was Gideon Maneli.

CHAIRPERSON: And the other?

MR MALI: He was Stelo.

MR SCHUBART: Was Archie a member of your SDU?

MR MALI: No, he was not a member of our unit.

MR SCHUBART: But I think you said that you had known him for some time, is that correct?

MR MALI: Yes, that is correct, I knew him in exile and I also knew him inside the country.

MR SCHUBART: And from the time that you came back inside the country, was it well-known that Archie had a firearm?

MR MALI: Yes, I didn't know that but Kenneth was the one who knew and he went to borrow the firearm from him. I didn't know.

MR SCHUBART: Do you know when Archie obtained his firearm?

MR MALI: No, I don't know.

MR SCHUBART: You see again I find it strange that - or let me first ask you this question, after the meeting with Mr Hani, was it your objective too obtain firearms?

MR MALI: Yes, that was our objective, to get firearms.

MR SCHUBART: You see again, I find it strange to believe that if it was your objective to obtain firearms and yet it took you a whole year before you managed to put together a plan to try and steal firearms.

MR MALI: I think I've already explained that we had a problem about the firearms, people from exile had a problem concerning firearms. We did not have firearms.

MR SCHUBART: And are you saying to us it took you a year to obtain firearms to enable you to carry out your objective?

MR MALI: Yes, it took us a long time, that is correct.

MR SCHUBART: Yes, in fact a year, from August 1991 to August 1992.

MR MALI: That is correct.

MR SCHUBART: When did you know of this mission to go to Mr de Villiers' house, when did you first find out about that?

MR MALI: It was three days before the incident. I knew about it three days before.

MR SCHUBART: And who told you?

MR MALI: Xholani told me.

MR SCHUBART: And what was your plan to be on the night of the incident, what were you going to do and how were you going to do it?

MR MALI: Our plan was like this. We would go to this house with those two firearms. We did not have intentions to kill anybody, but if you have a firearm anything can happen.

So our plan was to get weapons from this house and then leave, the weapons that we heard about.

MR SCHUBART: And how were you going to do this?

MR MALI: We were going to do that using the two firearms while we were searching for the weapons that we were looking for in that house.

MR SCHUBART: Can you give us a bit more indication as to what your plans were, how you were going to look for the firearms, at what stage you were going to look for the firearms? Can you give us a bit more detail about what your intentions were for that evening?

MR MALI: Our intentions were to go inside the house and this gentleman will tell us where the weapons were. We would take all the weapons and then we would leave. Those were our intentions.

MR SCHUBART: So was it your intention for instance to arrive at this house and go to the front door and open the front door? Was that your intention?

MR MALI: In this house our intention was to wait for everybody to go inside the house as the owner of the house was not there at the time. After that we would then go inside the house and get the weapons. We didn't want to go inside the house and then when we got there we didn't want to be told that the owner of the house was not there, so we wanted to wait for everybody to be inside the house.

MR SCHUBART: As I understand what you're saying, you wanted everyone to be inside the house and thereafter you would go into the house, is that right?

MR MALI: We were going to point this guy, Mr de Villiers with firearms, we would then go with him inside the house and then we would get the weapons that we were looking for. Those were our intentions.

CHAIRPERSON: No, but I think what Mr Schubart finds difficult to understand is the fact that your intention, your original intention was for you to wait for everybody to go into the house. When you say "everybody", does that include the deceased as well?

MR MALI: Yes, because he was not there at the time when we got there, we were waiting for him.

CHAIRPERSON: So you wanted to wait for him to get into the house before you could make your entry into the house?

MR MALI: Yes, so that we can go inside with him.

CHAIRPERSON: You wanted him to go inside the house and then you'd follow, how would you go inside with him if he had to be in the house before you could gain access into the house?

MR MALI: We were going to point a gun at him and then go inside the house with him, that was our plan. We did point a gun towards him and we wanted to go inside the house with him so that we can get what we wanted, which did because we pointed him with a gun.

CHAIRPERSON: Thank you, Mr Schubart.

MR SCHUBART: Thank you.

When did you find out for the first time that two members of your group that particular evening had firearms with them? When did you first learn of the existence of these firearms?

MR MALI: I went there with that knowledge. We went to this place and I was aware that we had two firearms.

MR SCHUBART: When did you become aware of the existence of the firearms?

MR MALI: When we were going to that house I already knew that we had two firearms as we were going to do this mission.

I didn't go there unaware that there are two firearms, I knew that there were two firearms that were going to be used.

MR SCHUBART: But when did you know that there were two firearms that were going to be used, was it that evening on the way to the house, was it beforehand, when did you know that?

MR MALI: I knew before we went to that house.

CHAIRPERSON: When you say "before", what do you mean, can you contextualise it in terms of time? Was it a day before, two days before, three days before? You've already stated in your evidence that you were aware that you were going to carry out this mission three days before it took place.

MR MALI: As a member I was told that there are two firearms that were going to be used. When we were going there I already knew that there were firearms.

CHAIRPERSON: Yes, my simple question is, you've already stated in your evidence that you became aware that you had to carry this mission out three days before it took place, when did you become aware that firearms would be used, was it a day before the mission was carried out, two days or three days before it was carried out?

MR MALI: I can say it was a day because the day of the incident was the day they went out to borrow the firearm from Archie, so it's a day.

CHAIRPERSON: You mean it was on the day of the incident that you became aware that firearms would be used, two firearms would be used?

MR MALI: Yes, I knew that there were two firearms that day.

CHAIRPERSON: Thank you.

MR SCHUBART: Is it not a case of that you only found out about the firearms on route to the farm that particular evening?

MR MALI: Yes, I knew that there were two firearms, that is correct, I knew that.

MR SCHUBART: What I'm asking you is, is it not correct that you only found out for the first time that two firearms were going to be taken when you were on route to the farmhouse that evening?

MR MALI: Before we went to this mission I knew that there were two firearms that were going to be used.

CHAIRPERSON: That is not the question, Mr Mali. Listen to the question carefully. What Mr Schubart wants to know is, is it not so that you only discovered that two firearms would be used during your mission, when you were in fact going to the scene of the crime, on your way to the scene of the crime?

MR MALI: I knew before we went to the place. I don't know whether you understand me. Before we went to that mission, I knew that there were two firearms that were going to be used.

CHAIRPERSON: So in other words you did not discover it on your way to this mission, you knew before you even left for the mission that you were going to use two firearms?

MR MALI: Yes.

CHAIRPERSON: That is the only response that Mr Schubart expects of you.

MR SCHUBART: Thank you.

Did you have any weapons with you when you went on the mission?

MR MALI: No, I didn't have a weapon.

MR SCHUBART: Did you have a knife with you?

MR MALI: I had a knife and a rope.

MR SCHUBART: And what did you intend to do with the knife and the rope?

MR MALI: We were going to disconnect the lines of communication so that nobody would be able to phone the police. Even if we have left the scene we were going to use that knife to disconnect the lines of communication.

MR SCHUBART: And rope, what were you going to do with the rope?

MR MALI: After getting the weapons we would tie them up and then we would leave them. That was our intention for the rope.

MR SCHUBART: Who did you intend tying up?

MR MALI: We intended to tie everybody that was inside the house, so that whilst we are running away with the weapons nobody would be able to phone the police and tell them about the incident. Those were the reasons why I had a knife and rope.

MR SCHUBART: And you say you wanted to cut the lines of communication so that no-one could phone the police, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: When you got to this farmhouse, why didn't you cut those lines before this incident occurred?

MR MALI: We were going to do that while we were inside the house, when we entered the house.

CHAIRPERSON: May I interpose, Mr Schubart?

How long was the rope that you carried with you there, do you know?

MR MALI: I think it was 10 to 15 metres.

CHAIRPERSON: And did you know how many people resided with Mr de Villiers?

MR MALI: No, we didn't know but we would tie everybody that would be there. We didn't know how many people would be there.

CHAIRPERSON: When you reconnoitred the place, did you not establish that fact?

MR MALI: No, we didn't get that but whilst we were outside we saw that there were people inside the house but we didn't know how many they were.

CHAIRPERSON: How would you have known then whether your intention of tying everybody who was inside with a rope would succeed if you didn't know how many people you would have had to tie up with the rope?

MR MALI: If there were three people inside the house we would tie those three. If there two people we would then tie the two people and then leave.

CHAIRPERSON: But if there were more?

MR MALI: We were going to tie them all with this rope.

CHAIRPERSON: You may proceed, Mr Schubart.

MR SCHUBART: Thank you.

On the night of the mission, was it a dark night?

MR MALI: Yes, it was a dark night because it was in winter, in August.

MR SCHUBART: I think the incident took place after 8 o'clock in the evening, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: Did you wear dark clothing?

MR MALI: Yes, I was wearing dark clothing, a brown jacket and a green trouser. They were dark, they were not light.

MR SCHUBART: And did you wear any balaclavas or hats on your head?

MR MALI: I was wearing a hat. I was not having a balaclava.

MR SCHUBART: What were you wearing, sorry? Did you say you were wearing a hat?

MR MALI: Yes, I was wearing a hat that could hide my face, that could go in my face and hide my face.

MR SCHUBART: So it wouldn't be easy to recognise you, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: The other persons in your group of the night in question, how many other person were there?

MR MALI: There were four of us.

MR SCHUBART: Including yourself?

MR MALI: Yes.

MR SCHUBART: Were they also dressed in a fashion that they wouldn't easily be recognised, the other three people?

MR MALI: Yes, they were dressed in that fashion.

MR SCHUBART: Now when you got the farmhouse, I think you've told us that you waited outside, is that right?

MR MALI: Yes, that is correct.

MR SCHUBART: Why did you wait outside?

MR MALI: The reason for us to wait outside was because we knew that the men, the owner of the house was not there. We arrived in that house after 6 o'clock and then we waited because we knew that he was going to come back late, so we were waiting for him.

MR SCHUBART: Firstly, how did you know he wasn't there when you arrived?

MR MALI: The report we got from Sammy was that he came back late from work, at about 7, so that is why we arrived there before him so that we can wait for him and see him when he was going inside the house.

MR SCHUBART: When you arrived there, did you know if he was there or not or did you just think that he wasn't there yet when you arrived there?

MR MALI: We just assumed that he was not there because we knew that he was coming late from work.

MR SCHUBART: On the assumption that he wasn't there yet, why didn't you go into the house, why wait for him?

MR MALI: We waited for him because we wanted everybody to be in the house when we were doing this mission and that is why we waited for him. The garage door was open and we could see that there were children playing. We waited for him to be inside the house because we didn't want them to tell us that the person who can give us the weapons is not there. That is why we waited.

MR SCHUBART: Alright, but firstly, you didn't know what the people inside were going to say, and even if they did say to you that you would have to wait for the man to arrive, why not go into the house and see if you can find the weapons, why wait for him?

MR MALI: We waited for him because we knew that he was the owner of the house. We would got inside the house with him. That is why we waited for him, because we knew that he was the owner of the house and he would be the one who knew where these weapons were.

MR SCHUBART: But you see the other people in the house, surely they would also know where the weapons are? Didn't you think so?

MR MALI: No, we didn't think so, we thought of the owner of the house because we heard about him. We heard that he is the one, we can get weapons from him. We were not told that maybe other people would know where the weapons were. We thought that maybe they would tell us to wait for him. That's what we thought, we didn't think of going inside the house.

MR SCHUBART: But if you'd gone into the house and you couldn't find the weapons then you could have waited for him inside the house, not so? Isn't that so?

MR MALI: We didn't go inside the house, maybe if we did but that didn't happen because we waited outside for him.

MR SCHUBART: Do you agree that if you were looking for weapons it would have been easier for you to go inside the house before he got there, look for the weapons, if you find them, good and well and if you don't, you can wait for him?

MR MALI: Our intention was to go inside the house with him. Those were our intentions. We wanted to wait for him and then go inside the house with him. We didn't have any other intentions of going inside the house and waiting for him inside the house. We wanted to go inside the house with him.

MR SCHUBART: Did you think that Mr de Villiers would have money with him?

MR MALI: No, we didn't think about money, what we were looking for were weapons.

MR SCHUBART: Because you see, if it was money you were looking for, I can understand that you would wait for him to arrive because he would probably bring money from his business. Isn't that the reason why you were waiting for him?

MR MALI: No, that is not the reason. The reason for us to wait for him was to go inside the house with him and get the weapons that we heard that he had.

MR SCHUBART: Did you ever tell anybody that the reason why you went to this farmhouse was to get money?

MR MALI: No.

MR SCHUBART: Have you never said that that is the reason why you went there?

MR MALI: No, we never said that, we never said that to anybody.

MR SCHUBART: Did Mr Stemele ever say that to anybody, that that was the reason why you went to the farmhouse?

MR MALI: I wouldn't know about that.

MR SCHUBART: If he did say that, would that surprise you?

MR MALI: Yes, that would surprise me.

MR SCHUBART: Has it ever been suggested in your presence, that the reason why you went to the farmhouse was to get money?

MR MALI: No, that was never suggested in my presence.

MR SCHUBART: If it had been suggested in your presence, would you have said that that is incorrect?

MR MALI: Yes.

MR SCHUBART: Now tell me, when Mr de Villiers arrived at the farmhouse, can you just tell us again what happened after he arrived there.

MR MALI: When Mr de Villiers arrived in the farm, we pointed at him, Xholani pointed a gun at him and Kenneth also pointed a gun. A person who was at the back of the van went out and then he ran away, then Kenneth chased him. Because the weapon he had had a problem with the trigger, he mistakenly shot and that led to what happened, that led to the shooting of Mr de Villiers.

MR SCHUBART: Right, we'll get back to the shooting of Mr de Villiers but could you just tell us, you say when he arrived there the two people with weapons pointed the weapons at him, is that correct?

MR MALI: Yes, he was pointed with two firearms.

MR SCHUBART: Why did they point the firearms at him?

MR MALI: Because we wanted to go inside the house with him, that is why he was pointed with the firearms. We'd go inside the house with him and look for what we were looking for. That is the reason why they pointed him with the firearms.

MR SCHUBART: Did any member of your group speak to Mr de Villiers?

MR MALI: Yes, Xholani told him not to move but to remain in the car.

MR SCHUBART: And did he remain in the car as he was told?

MR MALI: Yes, he did as he was told.

MR SCHUBART: And you say Kenneth then chased, did Kenneth chase this person who came out of the vehicle?

MR MALI: Yes, he chased him but he couldn't get him.

MR SCHUBART: Why did he chase him?

MR MALI: Because he wanted to grab him so that we can go, we can all go inside the house with this man.

MR SCHUBART: But you'd been waiting for Mr de Villiers to arrive to go inside the house, why did you need this other man as well to go inside the house?

MR MALI: It's because we were expecting one person in the car and then we saw the other one coming out at the back. We didn't even know that there was this other person at the back, so we wanted to chase him so that he cannot go inside the house before us.

MR SCHUBART: Why didn't you want him to go inside the house before you?

MR MALI: We wanted to go inside the house at the same time, all of us while pointing the gun at this man, so that he cannot alert anybody else.

MR SCHUBART: Why didn't Kenneth go into the house with him, Kenneth had a firearm? By "him", I'm talking about the man he was chasing.

MR MALI: This person ran fast and then he went inside the house and then Kenneth came back. So we just realised that our mission has failed, that is why Kenneth came back. Because this person had already went inside the house and it was obvious that he was going to alert the people inside the house and tell them that there is something that was happening inside the house, that is why Kenneth went back to us. And then we dealt with Mr de Villiers.

MR SCHUBART: After Mr de Villiers was shot, did he fall forward in his vehicle and onto the hooter of the vehicle?

MR MALI: Yes, he was shot while he was inside the car. He was shot in the waist because we wanted a chance to run away. So he was screaming in the car and he was shot while he was inside the car but I don't know where he fell.

MR SCHUBART: Did you hear the hooter of his vehicle sounding continuously after he was shot?

MR MALI: No, I didn't hear because there was noise around, there were people looking through the window. There was no noise around so I couldn't, I didn't hear that.

MR SCHUBART: Well what else caused the noise that was around?

MR MALI: We were running away because the mission had failed. We were talking to ourselves, telling each other that we should run away because the mission has failed, and we could see that there were people who were looking through the window so there was such noise.

MR SCHUBART: You say you could see people were looking through the window, is that while you were running away?

MR MALI: Yes, they looked through before the shooting, and whilst we were running away they were still looking through the window.

MR SCHUBART: At what stage did you shoot at the people who were looking through the window, was that while you were running away?

MR MALI: Yes, while we were running away.

MR SCHUBART: That was after Mr de Villiers was shot, hey?

MR MALI: That is correct.

MR SCHUBART: If I understand your evidence correctly, you realised that the mission was a failure once the man who had been in the vehicle ran inside and into the house, is that correct?

MR MALI: That is correct, and there were also people looking through the window.

MR SCHUBART: But it was at that stage that you realised the mission is a failure?

MR MALI: Yes, because this man ran inside the house and he was screaming while he was going inside the house, and that led to the people inside the house looking through the window. He didn't just run quietly.

MR SCHUBART: You realised that this mission was a failure before Mr de Villiers was shot, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: Now why was it then necessary to shoot Mr de Villiers?

MR MALI: We shot him because we wanted to protect ourselves, we didn't want him to chase us with his van. We were demobilising him. We wanted to get away, to run away because he would chase us with his van, so that is why we shot at him. Maybe some of us would be injured or we would be arrested. The reason why we shot him, we wanted to demobilise him so that we can run away.

MR SCHUBART: But if you demobilised him then someone else could have got into the van and chased you?

MR MALI: I don't think that person would chase us because there was this injured man inside the van. So that is why we shot at him so that they would concentrate on him and there would be a delay because of that.

CHAIRPERSON: But haven't you said that you didn't know how many people were in the house, wasn't that your evidence? How would you know how many people would be in the house who would attend to Mr de Villiers as well as run after you?

MR MALI: Yes, we didn't know how many people there were in the house but we were taking precautions because we wanted to run away. We didn't know who was inside the house, we didn't know who could chase us. The reason why we wanted to shoot him was to find a get-a-way so that we can run away because if we didn't do that he would chase us with his car. We wanted a chance to run away and that is why we shot at him. Even the person who would assist, he would have a problem because he would have to attend to the injured person.

CHAIRPERSON: If your primary intention was to run away from the scene of the crime, why didn't you use Mr de Villiers' car to do that, it should have been faster than your feet?

MR MALI: No, we were not there to take his car, our intentions were to take weapons so we were not interested in the car. We didn't want anything from his car.

CHAIRPERSON: But once you realised that your mission had been thwarted, the only thing that came to your mind was to escape from the scene, isn't it, and that's why you went on to shoot Mr de Villiers, why not proceed a step further? It wasn't your intention to shoot Mr de Villiers, you nevertheless did so in order to try and make sure that you don't get caught, why not go even a step further? One would have logically expected you to steal the car in order to flee from the scene.

MR MALI: What I'm saying is, we were not interested in his car. The reason for us to shoot him was to get enough time so that we can run away, because we were not there looking for a car, we wanted weapons.

CHAIRPERSON: Mr Schubart?

MR SCHUBART: Thank you.

If it was your intention not to steal the car, only to get weapons, and you've told us that you wanted to get away, then instead of shooting Mr de Villiers, why not immobilise the car? You could prevent the car from operating, why prevent Mr de Villiers from chasing you?

MR MALI: We didn't think about that. We didn't think to demobilise the car, we just thought of shooting him so that he can be injured and then we can run away. We didn't think about shooting a car or doing something to a car.

MR SCHUBART: Because in fact if you'd thought about that, it wasn't necessary to shoot Mr de Villiers, you could have done something to his car.

MR MALI: That is why I'm saying we didn't think about that, we just thought about what we did at the time. We just thought of shooting him and then run away.

MR SCHUBART: While you were running away, why was it necessary to shoot at the people who were looking out the window?

MR MALI: We shot at those people because we didn't want them to identify us. They were looking through the windows before this man was shot, so we were shooting at them because we didn't want them to identify us.

MR SCHUBART: You've already told us that you'd worn clothing to try and hide your identity and that you weren't easily identifiable in that it was a dark night.

MR MALI: Yes, but there was light where we were. They could be able to look at us and see our faces, that is why we decided to so that.

MR SCHUBART: But while you were running away, surely you had your backs towards them? They wouldn't have been able to see your faces then, surely?

MR MALI: I have already explained that when this was happening those people were looking through the window, they were then shot at so that they cannot see us. So while we were running away we shot at them because we didn't want them to identify us.

MR SCHUBART: I don't understand what you're saying now because, are you saying that they could identify you while you were running away or do you say they would have identified you before you ran away?

MR MALI: That place, there was light in that place. Although it was dark but it was light where we were. You could be able to see a person even though the person is wearing a hat, you could be able to see the fact because that was not a balaclava, it just covered the head. You would be able to see the face because there was light in that area, in that place.

MR SCHUBART: Well you told us that you were wearing clothing so that you wouldn't be able to be identified, didn't you do a good job of that?

MR MALI: There was light where we were, so one would be able to see a person. We were hiding in a dark place but where the car had stopped there were lights so you could see a person.

MR SCHUBART: Can you tell us, how did you intend to prevent them from identifying you by shooting at them, did you intend to shoot them to kill them?

MR MALI: We just wanted them to move away from the window, we didn't intend to kill them.

MR SCHUBART: But at that stage when you wanted them to move away from the window, you were running away and surely they couldn't have seen you because you would have had your backs towards them?

MR MALI: Yes, we were running away, but what I'm saying is there was light in the place of the incident. When they were looking through the window they would be able to identify us. When we were running away, we were shooting whilst we were running away.

MR SCHUBART: Are you saying they would have identified you before you ran away?

MR MALI: Yes, in the scene they would be able to identify us.

MR SCHUBART: Well if they'd already identified you then why did you shoot merely to get them away from the window? If they've identified you, they have identified you.

MR MALI: We didn't want them to look at us whilst we were running away, we didn't want them to see which route we took because there were two roads, so we didn't want them to see exactly which route we took.

MR SCHUBART: Then why did you say you shot at them so that they wouldn't identify you, if the reason is that you didn't want them to see which route you were taking?

MR MALI: What I'm saying is, where we were in that place where the car had stopped there was light, so when we were running away we didn't want them to see which side we took. That is the reason.

MR SCHUBART: So are you now saying the reason why you shot at them is so that they couldn't see in which direction you were running, not because you didn't want them to identify you?

MR MALI: We didn't want them to see which direction we took and whilst we were in that place where there was light we didn't want them to identify us because there was light in the scene. I've already said that there was light where we pointed a gun to the deceased.

MR SCHUBART: Yes, but that had already happened before you ran away. As I say, when you're running away - they can't identify you while you're running away because your back is towards them, not so? Is that correct?

MR MALI: Yes, what we wanted to do whilst we were running away, we didn't want them to see the direction we took because there were two roads there. Whilst they were looking through the window we didn't want them to see which direction we took.

MR SCHUBART: Tell me, you were arrested a few days after this incident, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: And after you were arrested, did you then enlist the services of an attorney, Mr Hartley?

MR MALI: Yes.

MR SCHUBART: He was somebody you chose to represent you, is that correct?

MR MALI: That is correct.

MR SCHUBART: And did you then also have initially two advocates, that's Advocate Buchannan and Advocate Goosen?

MR MALI: Yes, that is correct.

MR SCHUBART: And they were two advocates who were going to represent you, is that correct?

MR MALI: Yes, that is correct.

MR SCHUBART: Did you tell them what had happened on the night of the incident?

MR MALI: Yes, we told them.

MR SCHUBART: Did you tell them everything as you have told it to us today?

MR MALI: Since the advocates were hired by the Court I didn't tell them the truth that I'm telling here now. We told them something else because we knew that we told them lies.

MR SCHUBART: Mr Hartley, did you tell him lies?

MR MALI: Yes.

MR SCHUBART: Why would you tell lies to the person whom you choose to represent you?

MR MALI: The reason is that I didn't have money to pay for the lawyer so I didn't see a reason to tell, I didn't tell him that I was a member of the Self Defence Units, I just told him what I told him so that we can go to Court, because I didn't have money to pay for the lawyer.

MR SCHUBART: Is Mr Hartley not an attorney whom you chose to represent you?

MR MALI: Yes, he is the one I chose.

MR SCHUBART: Well if he's someone you chose, why wouldn't you trust him? And if you don't trust him, why choose him?

MR MALI: When I was talking to him I didn't tell him the exact truth or the truth that I'm telling here. I told him because I had a lawyer and I had to tell the lawyer what happened, so I told him what I told him.

MR SCHUBART: Yes, but why didn't you tell him the truth?

MR MALI: There was no need for me to tell him the truth.

MR SCHUBART: Well why was it necessary for you to not tell him the truth?

MR MALI: It is because we were not supposed to tell in Court that we were members of the Self Defence Units, that's why I said what I said to him.

MR SCHUBART: So you chose your own attorney but decided not to tell him the truth, is that what you are saying?

MR MALI: Yes.

MR SCHUBART: Alright. Can you tell us what did you tell him that wasn't true, or let me put it to you this way, did you decide that there were certain things that you wouldn't tell him or did you decide that there would be things that you would tell him that were wrong?

CHAIRPERSON: Mr Schubart, where are you leading us?

MR SCHUBART: Honourable Chairperson, I'm going to be dealing with what was said at the criminal trial and what the evidence was there and what was represented on behalf of these applicants at the trial.

CHAIRPERSON: Yes, I would prefer that you stick to what is known to have happened at the criminal trial. I think you are bordering on the lawyer and client privilege and we wouldn't want you to do that.

MR SCHUBART: If I might just explain. What was said at the criminal trial is very different to what, or certainly partially different to what he said here.

CHAIRPERSON: Yes.

MR SCHUBART: So I just want to find out why the truth wouldn't be told to the representatives.

CHAIRPERSON: I think if you want to explore that area, put to him what he said at the trial, not necessarily what he said to his lawyer. And I don't think it makes any difference whether one has obtained his own lawyer or a lawyer has been obtained at the instance of the State, a lawyer remains a lawyer, whether it is one which is obtained at your own expense or at the State's expense. So put to him what he said at the trial vis-à-vis to the viva voce evidence given here.

MR SCHUBART: Very well. I'm going to just deal with certain aspects before the trial itself. I might just indicate to you he didn't give evidence at the trial.

CHAIRPERSON: We are aware of that. He was convicted on the basis of the confession which obviously must been prepared by his lawyer, no? Well you can put that question to him in order to clarify the issue but I would be very uncomfortable and I wouldn't like you to put questions to Mr Mali to find out what happened between him and his attorney. That is privileged information.

MR SCHUBART: Possibly I could just ask him the question on this basis.

It would appear from the questioning of your legal representatives that you didn't tell them that you went to the farm to look for firearms, is that so that you didn't tell them that you went there to look for firearms?

CHAIRPERSON: Where is that, so that we can also have reference to what you are saying? Give us the page of the bundle. What record are you referring to?

MR SCHUBART: Sorry, I can't refer you to a page because the record doesn't say that that isn't what he said, but the whole tenor of the record, I've got the whole record of the evidence here. It's some - before the judgment it's some 280-odd pages. The whole tenor of the evidence, the whole tenor of the questions put had nothing to do with the applicant being at the farmhouse to obtain firearms.

CHAIRPERSON: I think that's how you should actually put your question. Mr Nyoka also has not had sight I suppose, of the documents you are using and that puts him at an unfair advantage. He wouldn't be able to properly represent the interest of his client.

MR SCHUBART: Yes, I'm not too sure how to put the question then but I can put it on this basis.

At the criminal trial evidence was led by a number of persons and they were questioned by your advocate and none of those persons were, or none of the evidence that came forward, nor in your confession that was put before the Court, was it suggested that you went to the farm to look for firearms but in fact what was suggested is that you went to the farm to rob the occupants for money.

CHAIRPERSON: Before he can answer that, can you assist him by identifying the names of the person you are referring to? ...(end of tape)

MR MALI: ...(no recording)

MR SCHUBART: Is it so that you made a confession about what happened on the night in question, and this was a confession that you would have made to - I'm trying to see if this was, your confession was to, I just want to see if it was the magistrate or - did you make a confession as to what happened on that night in question to a magistrate, sorry not to a magistrate but to a police officer?

MR MALI: That is correct.

MR SCHUBART: In the confession that you made to the police officer, did you tell him that you went, well the confession that is recorded as having been made by you and which was also accepted at the trial by your legal representative as correctly recorded, indicated that you went to Addo to rob, was that correct or wasn't that correct?

MR MALI: We went there to rob firearms.

MR SCHUBART: So did you understand it that you went to rob but you say to rob for firearms and not for money?

MR MALI: What I said in Court is ...(intervention)

CHAIRPERSON: Before you can respond, Mr Mali, assist me, Mr Schubart. Where is it in his confession indicated that he stated that he went to Addo to rob for money?

MR SCHUBART: Sorry, his confession just says:

and I'm asking if it was to rob for firearms and not to rob for money.

CHAIRPERSON: I think you were not clear in your question, just make it more clearer to Mr Mali before he can respond. If you don't mind rephrasing your question.

MR SCHUBART: Yes.

In your confession where it refers to the fact that you went to Addo to rob, are you saying that you went to rob for firearms and not to rob for money?

MR MALI: Yes, we went there to rob firearms.

MR SCHUBART: And not to rob for money?

MR MALI: No, we didn't go there to rob money.

MR SCHUBART: The confession that you gave to the police officer and which was handed in at the trial, did that contain the truth or not the truth?

MR MALI: That was not the truth, those were lies.

MR SCHUBART: What portion of it wasn't the truth? What did you tell the police officer that wasn't true?

MR MALI: Can you please repeat your question?

CHAIRPERSON: Do you still recall the content of your confession, Mr Mali? Have you had an occasion recently to have sight of the document which Mr Schubart is referring to?

MR MALI: No, I didn't have the opportunity to read my confession statement.

CHAIRPERSON: Mr Schubart, probably you could be of assistance to the Committee and to Mr Mali by probably just putting to him what version is in the confession which is different to the evidence he has led, because he has not recently had sight of the confession.

MR SCHUBART: Sorry, I'm trying to find out what he does say is different in the confession because it's a fairly lengthy confession.

CHAIRPERSON: In that case, I think in order to try and be fair to you and to Mr Mali and to get the right response from Mr Mali, we would have to take a short adjournment to enable Mr Mali to quickly go through his confession.

We can't expect him to recall what exactly is contained in a confession he made a few years ago. I don't think his counsel - unless of course his counsel can confirm that Mr Mali has recently had sight of the confession he made a few years ago.

Mr Nyoka, are you able to assist?

MR NYOKA: Thank you, Honourable Chairperson. We got the statement this morning and I must say it's in Afrikaans. I just managed to do half a paragraph because I'm battling with the Afrikaans. I will make an additional request that we have an Afrikaans translator, otherwise we would just be looking at the pages without understanding what is on the pages.

CHAIRPERSON: Can I request that we adjourn for a few minutes. I don't think we should sit here and get this confession read and translated to Mr Mali as part of these proceedings. We have got to curtail the proceedings as much as we can.

I think we'll take a five minutes adjournment for Mr Mali to be assisted in the confession, I think by an Afrikaans translator. That should be sufficient. Then we can come back and then you can put your questions in respect of the confession, after he has had site thereof.

We'll take a five minutes adjournment.

ON RESUMPTION

MXEDISI GEOFFREY MFAZO: (s.u.o.)

CHAIRPERSON: Mr Nyoka, has your client had an opportunity of having sight of his confession?

MR NYOKA: Yes, we have and we are very grateful to the translator, thank you.

CHAIRPERSON: Thank you.

Mr Schubart, you may now proceed on the confession.

CROSS-EXAMINATION BY MR SCHUBART: (Continued) Thank you.

In general terms, is that confession in accordance with what actually happened or is the confession not in accordance with what actually happened?

MR MALI: What I said to the police was not the truth, I was telling them this to protect myself and other members of the Self Defence Units, so that was a lie.

MR SCHUBART: You did tell the police however that you were a member of the ANC and also a member of MK, is that correct?

MR MALI: They already knew that. When they came to me they told me that, so they already knew.

MR SCHUBART: What did you want to hide from the police, what aspects of what really happened did you not want to tell them?

MR MALI: What I didn't want to tell them was the fact that we were looking for weapons there. That is something that I didn't want to tell them

MR SCHUBART: Did you understand at your trial that the basis of your, that the basis of the incident as described at the trial was that you were at the farmhouse to look for money?

MR MALI: Yes, I was listening to that, I heard that.

MR SCHUBART: In fact that is also what Mr Goosen who was representing you argued, that you were there to get money, is that correct?

MR MALI: Yes, that is correct, that's what he said because he heard that from us.

CHAIRPERSON: Mr Mali, are you saying that you recall that during your trial your counsel argued that you had gone to Addo to rob for purposes of obtaining money? Do you recall that?

MR MALI: Yes, I do recall that.

MR SCHUBART: Thank you.

And that argument of his, was that in accordance with your instructions to him at that stage?

MR MALI: Yes, that is correct.

MR SCHUBART: I think it's not necessary to go further into the confession at this stage.

CHAIRPERSON: If I may just make a follow-up on that one, why did you think it would make things easier for you during your criminal trial, to say that you went to Addo to rob for money and not for weapons?

MR MALI: First of all we were a Self Defence Unit, so we were protecting other members of the SDUs because if we had told the police that we went there looking for the weapons for the SDUs, they would harass others or other members of the SDUs.

That is why we told what we told, that we went there looking for money because we knew that nothing would be done for us because the Courts didn't do anything for black people. That is why we lied to them and said what we said.

CHAIRPERSON: Mr Schubart?

MR SCHUBART: Are you suggesting that the police weren't harassing SDUs at that stage and by "that stage" I'm talking about 1992/1993?

CHAIRPERSON: I don't think, Mr Schubart, he's saying that, he saying if he had disclosed more he would then have exposed his comrades to further arrest by the police.

MR SCHUBART: Yes, as I understand what he says, he says that the SDUs would be harassed by the police if he told them that they were looking for weapons, but I'm just wondering, were they not being harassed in any event?

CHAIRPERSON: I think that's common cause.

MR SCHUBART: How do you think that other SDUs would be further harassed or harassed to a greater extent if you said that you were there to look for arms and not for money?

MR MALI: As we know how the South African Police were, what they would do they would harass members of our unit. That is why we told them what we told them, so that they could not be aware of other people that were involved because they would harass them because they were used to doing that.

MR SCHUBART: To what extent to you think there would have been greater harassment if they thought you were at the farm to look for firearms as opposed to rob for money?

MR NYOKA: Sorry, Honourable Chair. The answer is SDU unit members, not SDUs generally. So he is talking about the other members, not the SDUs generally. So that question is unfair.

MR SCHUBART: Well even your own SDU unit members, how do you think they would have been harassed to any greater extent by the police if you had said that you were there to rob for firearms and not to rob for money?

MR MALI: The police would look for them and they would involve them in that case that we didn't want them to be involved. That is why we told the police what we told them, because we wanted that to end there and not to involve other people. Those are the reasons why we told them what we told them, because we were protecting other members from the police that were harassing us in this country.

MR SCHUBART: But surely the police would have investigated them and harassed them to that extent even if you would only be robbing for money? After all a person had died as a result of this.

MR MALI: Could you please repeat your question?

CHAIRPERSON: I think, Mr Schubart, you are now putting what you think, I think you can argue that, that's a matter for argument. There is nothing that you can obtain from Mr Mali that would come to your assistance.

MR SCHUBART: I just want to ask you, with regard to your statement which you presented for the purposes of this application, and here I'm referring to the affidavit from page 9 onwards, why in your affidavit for the purposes of this application, did you say that the meeting with Mr Chris Hani was held early in 1992 whereas in your evidence today you've told us it was in August 1991?

MR MALI: That is a mistake, that is a mistake I made. The meeting was in 1991, so this is a mistake that I made in the application.

MR SCHUBART: Is it in fact a mistake or did you change your evidence when you realised that Mr, that you had to give evidence to show Mr Mbatha wouldn't have known about this meeting?

CHAIRPERSON: He has already said it was a mistake, unless you want to explore why he made a mistake.

MR SCHUBART: Sorry, what I want to find out is, was it a mistake or did he change his evidence so as to try and get past the letter from the ANC which appears on page 64 of the record.

CHAIRPERSON: Is there any evidence that at the time when he made this he wasn't aware that Mr Mbatha was not with the ANC?

MR SCHUBART: Sorry, when he was asked about this letter on page 64, Mr Mbatha saying that he didn't have knowledge of this meeting with Mr Hani, he said: "No, but Mr Mbatha wasn't here in 1991, and the meeting was in 1991." I'm just asking whether he didn't change his evidence to try and get past this letter of Mr Mbatha or whether it is in fact really just a mistake in the affidavit.

CHAIRPERSON: Mr Mali, did you change your evidence in order to try and support your version that Mr Mbatha was not in Port Elizabeth in 1991 but only came after 1991, yes or no?

MR MALI: No, I didn't change any evidence because even this letter I saw it from the Investigator. So this is just a mistake, I didn't change any evidence. I wrote 1992 instead of 1991 and anybody can make that mistake.

CHAIRPERSON: Thank you.

Mr Schubart, may we proceed?

MR SCHUBART: Thank you.

The SDU that you were involved with, was that subject to the ANC's policies?

MR MALI: The SDUs were confirmed recently by comrade Geoff Radebe at the hearing in KwaZulu Natal. It was under the ANC, it was not just something that was just done.

Even Geoff Radebe has confirmed the issue about the SDUs and Ronnie Kassrils has also confirmed that it was the ANC programme. It was not a programme of individuals. Even the late comrade, Chris Hani, was fully involved in the programme of the Self Defence Units. So it was not an individual thing, it was the ANC programme.

MR SCHUBART: And the SDUs, were they to be subjected to the objectives of the ANC from time to time?

MR MALI: Yes, protecting people of South Africa that were fighting for the liberation in this country. It can protect anybody who was in the struggle. That was the programme of the SDUs, to protect everybody that was oppressed by the Boers.

MR SCHUBART: Because you see, as I understand what was stated from a historical point of view, and this is set out in the autobiography of President Mandela in: "Long Walk to Freedom", it was that by the time this incident occurred in August 1992, the armed struggle had been suspended and there was a commitment to peace at that stage. Is that not correct?

CHAIRPERSON: It's not correct, Mr Schubart, I can confirm from the Chair that it is not correct.

MR SCHUBART: Sorry, well then the book must be wrong then.

ADV MOTATA: But Mr Schubart, as you say you have read the President's book, would you go against what the applicant says, that Ronnie Kassrils was involved in it, Geoff Radebe was involved in it, Chris Hani was involved in it, because personally I would say Ronnie Kassrils was involved because that is public knowledge at this stage. You don't need to go beyond that, we all know that kind of information.

MR SCHUBART: Sorry, Mr Commissioner, it's not the fact of the involvement, it's the timing of the incident and the time when this occurred as to what was the state of the, the policy at that stage, that was really what I was trying to get through.

ADV MOTATA: Ja, that I agree with you, definitely.

CHAIRPERSON: I'm sure ...(intervention)

MR NYOKA: Sorry, Honourable Chair?

CHAIRPERSON: Yes?

MR NYOKA: If I can be of help, there's a book: "A Crime against Humanity", which details that there were numerous events in 1992, the Polla Park incident, the Boipatong incident and a two day stay-away strike in the very same month of this incident and a month later there was the Bisho Massacre in September. So there was chaos at that time. I can avail this book to the other side to peruse and make copies, thank you.

CHAIRPERSON: I think all Mr Schubart wanted to know was whether the SDUs were still active by the 17th of October 1992. I think that is all he wanted to know from the applicant. From 17th of August 1992.

MR SCHUBART: Sorry, Honourable Chairperson, it was whether they were active and whether the objective at that stage was still to obtain arms for the ...(intervention)

CHAIRPERSON: Yes, and whether at that stage there had not been a cessation of hostilities?

MR SCHUBART: That is so, yes.

CHAIRPERSON: I'm sure that can be answered by the applicant, though it's common knowledge.

By the 17th of August 1992, was there no cessation of hostility at the instance of MK but impacted and impinged upon the activities of the SDUs in the country?

MR MALI: The programme of the SDUs didn't stop because the ANC was involved in the negotiations with the people who had weapons on the other side and who had pens on the other side.

So the struggle didn't stop, we were forced to train people so that they can be well-trained. So the problem of the SDUs didn't stop until the changes that are here today were done, so they didn't stop.

CHAIRPERSON: Mr Schubart, if you are not happy with his response, I think it is an issue that can be taken up when you do your legal argument. Similarly I think Mr Nyoka will want to get an opportunity to respond to whatever argument you may have against the evidence given by the applicant.

MR SCHUBART: Thank you very much. I have no further questions then, thank you.

CHAIRPERSON: Thank you very much, Mr Schubart.

Advocate Francis, do you have any questions to put to Mr Mali?

ADV BOSMAN: Chairperson, should we not give the Evidence Leader ...

CHAIRPERSON: Sorry, I've actually simply disregarded our Evidence Leader. Ms Patel, I'm sorry about that.

CROSS-EXAMINATION BY MS PATEL: It's quite in order, Honourable Chairperson. There are just one or two minor points that I would like to raise.

Mr Mali, you've stated that part of the reasoning in shooting at the persons at the windows was so that they wouldn't identify you. That being the case, I find strange that deceased was the person who was closest to the persons in your unit and if anybody was going to identify you, it would be him. My question to you, given that then, was your intention not then not simply to immobilise him but to kill him precisely because he was able to identify you?

MR MALI: No, our intentions were to immobilise him so that we can run away because if we wanted to kill him we could have shot him in the head because we were near him. If we wanted to kill him we could have shot him in the head and then kill him. So he was not shot in the head, he was shot because we just wanted to run, a chance to run away.

CHAIRPERSON: Why didn't you shoot him on his foot? That is much safer than shooting somebody ...(intervention)

MR MALI: Because he was inside the car and then Xholani pointed him with the gun and the bullet struck him in the waist.

CHAIRPERSON: Was there a discussion about why the deceased had to be shot, about this immobilisation that is being presented in your evidence? Did you as a group have a discussion about that?

MR MALI: Yes, when Kenneth ran to the house, we decided to do that, we decided to shoot him so that we can run away. We all discussed that so that we can get a chance to run away.

CHAIRPERSON: Thank you.

MS PATEL: Thank you, Honourable Chairperson.

So the question of him identifying you or other members of your unit wasn't of concern to you?

MR MALI: No, it was not a concern to us at the time because we didn't even know whether we would be arrested or not. Because if you are doing something, you don't think about being arrested, being arrested just happened so we didn't think about that. We didn't think that he would identify us. That is why we shot at him so that we can get a chance to run away.

MS PATEL: Then in your affidavit that is part of your bundle on page 14, you've stated that none of the members of your unit had full information on Mr de Villiers, on what basis do you say that, given that you weren't the person who had a discussion with Sammy and that the information that had been relayed to you according to your affidavit, is that all that you knew is that he had firearms, so how did you know that other members of the unit didn't have more information than just that?

MR MALI: The reason why I said we didn't have full details about Mr de Villiers is because we heard that he had information that he was going to give in the Goniwe inquisition, so I was trying to explain that I had, I didn't know that he had such an information. That is what I was trying to explain.

MS PATEL: How do you know that the rest of the members of your unit didn't know that either?

MR MALI: Yes, I do know that they were not aware of that because Xholani was also surprised after hearing this, that this person was going to give this information. We were all shocked about this thing, that he was going to give this information at the Goniwe inquest.

MS PATEL: And the other two members of the unit?

MR MALI: Which ones?

MS PATEL: You've mentioned that Xholani was also surprised by the information, what about the rest?

MR MALI: I said all of us were shocked about this after we heard it.

MS PATEL: Were you together when you go this information, was there a discussion about it?

MR MALI: Yes, there was a discussion about this because we saw this in the newspaper before Xholani was arrested.

We found out that this person was going to give this information at the Goniwe inquest. We then wanted to protect other members. We were shocked, we didn't even know Mr de Villiers.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions.

CHAIRPERSON: Thank you. Advocate Bosman?

ADV BOSMAN: Thank you, Chairperson.

Could you tell us, Mr Mali, did you ever take up this business of having shot someone who was a supporter or someone who assisted the ANC, within the national structures of the ANC? Did you take it up with your seniors in the ANC and say to them: "Look a terrible thing has happened and we really did not know about it"?

MR MALI: After this incident we were all arrested, Xholani, myself, Kenneth. Xholani, Kenneth, Lindile and myself were arrested after a short period of time, so we didn't get a chance to meet with somebody and nobody came to us and told us but there were members who used to visit us in prison and we would tell them that we were not aware that this person was going to give out this information.

We didn't know this person. Nobody came to us and told us because we were arrested a short while after this incident.

ADV BOSMAN: Which people did you tell it to, the people who came to visit you in prison? Can you give any names there?

MR MALI: Sorry?

ADV BOSMAN: Can you give us any names of the people in the ANC that came to visit you and whom you told that you didn't realise that Mr de Villiers was a supporter?

MR MALI: There was a comrade who visited us in prison and when Xholani had already passed away, comrade Makwalisa. He wanted to know because he was a member of the ANC. They were there to visit us concerning other things.

He asked us and then I told him that we were not aware of this. If we were aware we wouldn't have done it. If we were aware that this person had such an information. We didn't know him.

ADV BOSMAN: And did the matter end there, was there no further discussion ever?

MR MALI: Sorry?

ADV BOSMAN: Did the matter end there?

MR MALI: Yes, it ended there.

ADV BOSMAN: Then there appears to be a contradiction, I'm not sure whether you addressed it, but there appears to be a contradiction in that you first said you waited for Mr de Villiers because you had hoped that he would tell you where to find the weapons, and later on you said that you knew the weapons were in the safe. It would seem to be contradictory, can you just comment on that?

MR MALI: The fact that weapons were in the safe, Lindile Stemele got that information from Sammy, so we did have that knowledge.

ADV BOSMAN: Yes, but then why did you say that you were waiting for him because you were hoping that he would tell you where the weapons are? I don't understand that, it appears to be contradictory.

MR MALI: We waited for him so that we can go inside the house with him so that he can tell us where exactly in the house these weapons are. That was his house, it was not our house, we didn't know anything about that house. We would go inside the house with him and he would tell us where in the house the weapons were. That is why we waited for him.

ADV BOSMAN: Are you trying to say that he would show you where the safe was? It would appear to be the position.

Okay then just one more question, in the year prior to the incident, in what activities was your SDU involved, since you had no firearms?

MR MALI: What we were involved in since we had no weapons, was to train the recruits. We gave them physical training and politicised them and we told them why we needed to protect people. That was the only programme we were involved in because we didn't have weapons. We were politicising people and telling them why it was necessary for them to protect South Africans.

ADV BOSMAN: I said it's the last question but I just want to add onto this. It would seem to me that the targets or the people against whom the SDUs expect to operate differed according to the regions, which people in the Port Elizabeth region did you expect to be the, let's call it "the enemy of the SDUs"?

MR MALI: The enemy of the SDUs was the then government, the police who were protecting the government of the day. Any individual who was protecting the interest of the government of the day, those were the enemies of the SDUs.

ADV BOSMAN: Thank you, Honourable Chair.

CHAIRPERSON: Thank you, Ms Bosman. Mr Motata?

ADV MOTATA: Thank you, Chairperson.

Mr Mali, this meeting which you had during August with Chris Hani, what was the purpose of that meeting?

MR MALI: In that meeting a structure was formed, a regional structure and we raised problems that we had. We told them that we don't have weapons so we are unable to train people. That structure was formed.

ADV MOTATA: What was this structure called after it was formed in that meeting?

MR MALI: It was the regional structure that would control members of the organisation.

ADV MOTATA: Because you say firstly you were a member of the MK and subsequently trained the SDUs, now I want to understand when you say the structure of the organisation, which one are you now referring to?

MR MALI: Let me put it this way. If you are a member of Umkhonto weSizwe, you do have a right to train people, you have a right to form a unit whereby you would train people. So this structure was formed because there was this problem of weapons. So the structure was formed so that there would guidelines for the members of the organisation.

ADV MOTATA: Let's put it this way, it is common knowledge that in 1990, the ANC at large was unbanned. Now we come to the region of Port Elizabeth, you people hold a meeting during August 1991, were you saying ANC as a larger organisation, the regional structure of what, ANC, SDU, the MK members, what are we talking about here? In that meeting, what do we want to achieve in that meeting?

MR MALI: It was the regional structure of the MK because it was not present in Port Elizabeth at the time, so it was formed at that meeting. It was the structure of Umkhonto weSizwe.

ADV MOTATA: Now let's move to another area. If I understood your evidence, it's that Sammy when you went to the de Villiers' premises, was not present, that is your informant, would I be right?

MR MALI: Yes, that is correct.

ADV MOTATA: Now amongst the four of you, because you say when you arrived Mr de Villiers was not present, amongst you people, the four of you, who knew Mr de Villiers?

MR MALI: Nobody knew Mr de Villiers amongst the four of us, but we knew where his house was and Sammy told us that he was driving a bakkie but we didn't know him personally.

ADV MOTATA: Now when you people were being surprised by this other gentleman who jumped from the back of the bakkie and demobilised the driver, were you certain that you had demobilised Mr de Villiers?

MR MALI: We could see that the person who was getting out of the car was a coloured man, so Mr de Villiers, we knew that he was the owner of the farm.

ADV MOTATA: Lastly Mr Mali, clarify this for me. You could not go to the farm prior to you having armed yourself, once you had weaponry of the nature you had, once you meet with resistance, was it your intention that what is in your way you would remove? Because you obtained guns specifically just to go and rob some other guns

MR MALI: When you have firearms like guns, you know that anything can happen but if it happened that there would be resistance we would protect ourselves the way we see fit.

ADV MOTATA: By even killing?

MR MALI: If it was necessary we would do that because we would be trying to protect ourselves from being killed.

ADV MOTATA: Thank you, Mr Mali. Thank you, Chairperson.

CHAIRPERSON: Mr Mali, in your response to a question posed to you just now by Advocate Motata, you said that the reason for the meeting held with the late comrade Chris Hani in Port Elizabeth was to form the regional structure of MK.

MR MALI: The P E structure was formed, the Port Elizabeth structure, Port Elizabeth and surrounding areas like Addo here in the Eastern Cape because at that time there was a border, there was Eastern Cape. So the structure that was formed was for the areas around Port Elizabeth.

CHAIRPERSON: And at whose ...(intervention)

MR MALI: Maybe I didn't put it well by using the region but ...(intervention)

CHAIRPERSON: Yes, I was very surprised. So you are saying it was the formation a local structure in Addo, not a regional structure of MK?

MR MALI: Yes, for the areas around Port Elizabeth.

CHAIRPERSON: At whose instance was that meeting called?

MR MALI: We heard that Mr Chris Hani would be at the Standard House, so members from the exile were required to go to that meeting. That is why we went to the Standard House.

CHAIRPERSON: Yes, but who called the meeting?

MR MALI: I think it was the regional office because he was at the regional office. That is where we held the meeting, at the Standard House.

CHAIRPERSON: Who presided at that meeting?

MR MALI: It was comrade - there was a comrade who was with comrade Chris, Mazuko Mshowe(?)

CHAIRPERSON: Was that a local person?

MR MALI: No, he was one of the members of Umkhonto weSizwe.

CHAIRPERSON: Was he also based in Addo, or around Port Elizabeth?

MR MALI: No, he was from the Transkei. He was always with Chris.

CHAIRPERSON: Who of the leaders around Addo, or in Port Elizabeth played some important role during that meeting?

MR MALI: We were there as members of MK. There were a lot of us there as members of MK.

CHAIRPERSON: Yes, but you said it was a meeting convened by the office of the ANC in Port Elizabeth, was there no ANC official who could have convened and played an important role surely with comrade Chris.

MR MALI: The person that we were talking with was comrade Chris. He was the one who was sitting in the front. We were telling him our problems and our difficulties. It was Chris who was at the forefront.

CHAIRPERSON: It is customary, Mr Mali, in a situation of that nature for somebody who is a local leader to introduce a person of Chris Hani's stature to the meeting. Mr Hani wouldn't have simply have stood up without having been introduced by a local person. I know this to be a fact, that is why I'm asking you this simple question. And you being a local person, you should be in a position to tell us who of the local leaders were there or who at least introduced comrade Chris Hani to the meeting.

MR MALI: There was comrade Bongani Xlegishe(?), he was in that meeting. He is the person who introduced Chris to us.

CHAIRPERSON: How many members were there? You have stated in your application, this is your written application that appears on page 9, that you attended there as SDU members. Now before I come to a clarification of what you mean by SDU members, I want to know how many of you being ex or returned exiles, MK members, were there? Can you approximate?

MR MALI: I think we were about 50, more than 50, there were a lot of us.

CHAIRPERSON: At that time, had you become attached to the broad SDU membership? I'm not talking about your special unit.

MR MALI: Yes.

CHAIRPERSON: And who can you recall having been within your broad SDU structures that you were involved in at that stage?

MR MALI: The comrade, it was comrade Mxlanga Besi who passed away.

CHAIRPERSON: We would prefer people who are still alive than the people who have already passed away. Can you recall anyone who is still alive?

MR MALI: There was another comrade who was involved in the Self Defence Unit, Mxholisi Makwenkwe. I heard that he is in Pretoria. He was involved in the Self Defence Units. He was the regional chief of communication in Port Elizabeth.

CHAIRPERSON: Would you say that you were an active member of the SDU structure at the time when Chris Hani attended that meeting?

MR MALI: At the time comrade Chris went to that meeting we attended. We came to South Africa and we joined and we found that there is a problem with weapons, there was nothing that was balanced or concrete because of this problem with weapons. So there was no structure exactly because of the problem with weapons.

So when we went to that meeting, we went having that problem with the weapons. We were then able to organise ourselves in forming the units that were formed. Yes, as a member of Umkhonto weSizwe I had a right to train people, but there was this problem concerning weapons. So I was fully involved in the Self Defence Unit, but there were no weapons. For instance, in recruiting people and telling them that after we have received weapons we would do this and that. So I was involved in that way in the Self Defence Units. Even though there were no guns or firearms we knew, when we were going to that meeting we knew that we had a duty to train people of the Self Defence Units.

CHAIRPERSON: I am aware that returned exiles were involved in the actual formation of the various units of SDUs and this is why I'm asking this particular question, to find out your particular activity within the broad SDU structure in Port Elizabeth.

MR MALI: Here in Port Elizabeth I was responsible in organising that we should get weapons but we couldn't get weapons. My main duty was to organise for us to get weapons and others had their duties, like Xholani was training people. Even if I had a chance or time to train people I would do that but my main duty was to get weapons.

CHAIRPERSON: When you formed this special unit that consisted of eight members whose primary function you have testified was to obtain weapons in order to arm the SDUs, did you advise any structure either within the ANC or within MK about the existence of your special unit?

MR MALI: We would be able to do a report when we have the required material, when we have the weapons. We would then be able to go and tell them that we are involved in such and such a way, but the thing is we were still politicising people. We didn't have weapons at that time, but if we did find weapons we would tell that we found these weapons and we would do such and such a thing.

CHAIRPERSON: But why should you wait until you have found weapons to advise them about the existence of a unit whose primary formation was in any event to advance that which you had been encouraged to do by the very structure? Why should you not advise them that you have now formed yourself into this special unit whose primary function would be to go out and seek weapons in order to arm the broad SDU movement? Why should you not advise them or that formation?

MR MALI: It is because things were not well organised as I've already explained, but we would organise everything and we would go and inform them when we have everything because we didn't want to go there and tell them that we didn't have weapons, we didn't have so and so. We wanted to be well organised before we informed them. Those were our intentions and it was our right to do that.

CHAIRPERSON: In your evidence you have testified that the reason why Mr de Villiers was shot was to enable you to flee from the scene of the crime and not because you were so overtly concerned about him being able to identify you and later probably reporting you to the police. You've also testified that you had in your possession a knife and a rope which you intended to use to tie up the occupants at the Addo house.

What I have not been able to understand is why you didn't use that rope to tie Mr de Villiers instead of using a dangerous weapon when it was never your intention to kill him, for purposes only of demobilising him.

MR MALI: As I've already said, we didn't think about that. Maybe we could have done that and then somebody would come out of the house and untie him and then they would chase us. So he would do the same job that we didn't want him to do. That would have happened. We could tie him and then someone can come and untie him and he would chase us. That could have happened.

CHAIRPERSON: Why didn't you take his car? Your concern was to flee from the scene of the crime, and you had a motor vehicle that was available that you could have used, you could have saved a life and you could have also succeeded in your escape, which is what you intended to do.

MR MALI: Yes, that is so but as I've already said we didn't think about the car, we didn't think that we would get there and get a car and escape, we just thought of going there and getting weapons, so we didn't think about getting a car. We didn't think of doing that, we just thought of what we did at that time.

CHAIRPERSON: I think we'll take a lunch adjournment. I only have one question to put to Mr Mali when we come back from lunch, then we can proceed with the other applicant.

Can we afford to take lunch for 30 minutes? Let me ask the other important people who are affected by this process. Is that okay for the translators, is that okay with the legal representatives? I think it will be okay with Ms Patel, I know. Is that okay with the applicants? Can we take 30 minutes lunch? It seems to fine for everybody, so we shall break for 30 minutes.

CHAIRPERSON: Mr Mali, you are still under oath.

MXEDISI GEOFFREY MFAZO: (s.u.o.)

CHAIRPERSON: You have testified that your unit consisted of eight members and that you had not been a position to carry out any operation for the past 12 months and that this operation was the first operation to be carried out by your unit.

This being your first operation, I imagine that you must elaborate plans to ensure the success of your operation.

What elaborate plans did you make to ensure that this operation was successful?

You have also testified that you reconnoitred the place, in your reconnaissance, what is that you were in fact looking for that would enable your operation to be successful?

MR MALI: When we went there for reconnaissance they went to look for this house, where it was. It was Xholani and Lindile and Sammy. They then came back and reported to us where this place was, where this house was and there were flowers in this house. They told us about this house. Can you please repeat the second question?

CHAIRPERSON: Was that the only thing that your reconnaissance took into account, just the location of the house?

MR MALI: Yes, and then we went for the mission.

CHAIRPERSON: How would you have known how many people were in the house? In your testimony you stated that you didn't want to go into the house because you didn't want people to tell you that the owner of the house wasn't there and therefore they can't tell you where the weapons were. In such details from a person who is a trained cadre, one would have expected that you would be able to attend to them.

MR MALI: Since this place was far from us, it was a farm and we found a person who was working there at the time but we couldn't manage to find out how many people there were inside, but we did know that there were people inside the house. We didn't get a detailed report about how many people are there in the house. We just knew that there were people in there, but we didn't know how many there were. Yes, I do acknowledge that when you are a cadre you make sure that everything goes according to plan, but we didn't have a chance to find out how many people are there in the house. We just assumed or we knew that there were people inside the house but we didn't know how many there were.

CHAIRPERSON: Who undertook this reconnaissance, did you say it was Xholani and Mr Stemele, your co-applicant?

MR MALI: And Sammy.

CHAIRPERSON: So three of your members were part of the reconnaissance group. Did you meet after they had been from doing the reconnaissance, to discuss the matter further, taking into account the report of the reconnaissance?

MR MALI: Yes, Xholani told me how this house was, or where it was. He told me that they cut the fence so that you can be able to go inside. They didn't tell me the details of how many people are staying there, they just told me where this house was and where we would enter when we were going to that house.

CHAIRPERSON: Did you as a group have a discussion where you all shared ideas, or was Xholani the leader and he was the one who was taking decisions? There seems a lot being said about Xholani having done this and that. What was the position in your unit, did you all participate in discussing this operation or did Xholani take the lead in deciding for the unit about how the operation was to be carried out?

MR MALI: No, Xholani was not the one who was taking decisions, we would discuss about this, but in our discussion we didn't find out how many people there were but we knew that this house was in a farm. We didn't discuss about how many people there were, we didn't have such information. Sammy had finished his job because his job was just to show them the place or the house.

We discussed amongst ourselves how we were going to enter in that house and how we were going to position ourselves. So we just knew or assumed that there would be people there but we didn't know how many there were.

CHAIRPERSON: Did you take into account the need for using a car to assist you in this operation in order to facilitate its success?

MR MALI: The problem was that I didn't know how to drive, I was not a driver and Xholani, according to my knowledge the ...(indistinct) couldn't drive, so we didn't discuss the car issue. Maybe if there was somebody who was able to drive, we would have talked about that. We just talked about the weapons.

CHAIRPERSON: This being your first operation, I imagine that you must have been agitated and you wanted it to be successful, is it not so?

MR MALI: That is correct.

CHAIRPERSON: Now, you consisted of eight members as a unit, why did you elect to use only four for this operation?

MR MALI: The reason why we used four members was being Xholani and Kenneth were going, Xholani was going to show us the place and Kenneth and myself were supposed to bring weapons to the unit. That is why we went there like that. We couldn't go there, eight of us, we were selected. Certain members were selected to go there. We couldn't got the eight of us because we only had two firearms that was going to work there, that was going to be used. So only the four of us went there, myself, Xholani, Kenneth and Lindile.

CHAIRPERSON: But you didn't have a firearm, what particular role were you going to play that wouldn't have been played by the other members of the unit?

MR MALI: My job would be to tie people and to cut the lines of communication and we would look for the weapons. We didn't have specific jobs, we didn't say so and so would do this, but when we were there I was going to tie these people and then cut the lines of communication. That would the role I would play.

CHAIRPERSON: What role would Mr Stemele have played, according to your planning?

MR MALI: Maybe if we found two people he would help me in tying those people or if there would be three people I wouldn't be able to do that alone so he would help me.

CHAIRPERSON: And you have testified that you were told that the deceased possessed all kinds of weapons, quite a number of weapons, how were you to carry these weapons without any form of transportation? What contingency measures had you put into place as a unit in preparing for this operation?

MR MALI: Lindile knew that area, he knew Addo because he had relatives there. He would show us the easy way to get out of there and we would run away with the weapons.

CHAIRPERSON: I imagine if you had found loads and loads of weapons, it would have been quite an ideal opportunity for your unit to be able to arm the broad structure of the SDUs, now how would you have been able to carry such a load amongst the four of you on foot?

MR MALI: We would have taken those we could because there was a paper bag with us and we would take weapons that we can carry. Those that we couldn't carry we would leave behind. We would only take enough weapons for us to carry because we did have bags with us.

CHAIRPERSON: Mr Tjebilisa was the commander of your unit?

MR MALI: It was Xholani Xnani, the commander.

CHAIRPERSON: What was Mr Tjebilisa's position in relation to your unit?

MR MALI: Mr Tjebilisa was commanding Xholani outside in Angola, he was his platoon commander. So if Xholani here was experiencing problems he would go to Mr Tjebilisa asking for advice. Xholani would be the one who would be in contact with him.

CHAIRPERSON: Was he also involved in SDU activities in Port Elizabeth?

MR MALI: Yes, he was involved but he was not in Port Elizabeth.

CHAIRPERSON: Where was he?

MR MALI: He was in the border regions. He was not working with us, he was working with other comrades in the border region.

CHAIRPERSON: In your affidavit at page 13, you stated that you were reluctant to advise, I may not actually be quoting the right page, but in your affidavit you stated that you were reluctant to advise the ANC about this operation after you had committed it because you had not informed them of your intention to undertake it. Now listen to my question, were you ever given any impression or did you have any cause to believe that you had to inform the ANC about any of your operations prior to undertaking them?

MR MALI: Can you please repeat your question, Ma'm.

CHAIRPERSON: In your application you stated that you became reluctant to inform the ANC of the offence that you had committed, particularly when you became aware that the victim to the commission of your offence was closely associated with the ANC. Your anxiety was caused by the fact that you had not, before committing this offence, advised the ANC of your intention to conduct this operation. Are you still with me up to there?

MR MALI: Yes.

CHAIRPERSON: My question is coming. My question is, did you have cause to believe that there was a need to have informed the ANC of any operations that your unit wanted to undertake before undertaking those operations?

MR MALI: As a member of Umkhonto weSizwe I had rights to use my own initiative when it was necessary, but the fact that I was reluctant to tell the ANC is because this incident happened and we were blamed for this incident. Nobody came to ask us about this and we didn't inform them that we did such an incident. We took this upon ourselves.

CHAIRPERSON: Were you obliged to have advised the ANC of this operation before you conducted it?

MR MALI: No, we were not obliged to tell the ANC before the operation because we used to go out on operations and then report back after the operation. We were not forced to report before the operation.

CHAIRPERSON: To whom would you have reported about any operation that you would have conducted?

MR MALI: Xholani as the person who was always reporting to the other Xholani, to Xholani Tjebilisa, he would tell Xholani Tjebilisa if we had done something, as he did when we were arrested, he told him about this. So if were involved in an operation he would go to him and tell him what we have found and what we would do about the goods that we found.

CHAIRPERSON: What was Xholani's position in the ANC?

MR MALI: Xholani was a member of Umkhonto weSizwe.

CHAIRPERSON: Tjebilisa, are you talking about Xholani Tjebilisa?

MR MALI: Yes.

CHAIRPERSON: Was he in the leadership of the ANC in Port Elizabeth or in Addo?

MR MALI: No, he was not in the leadership, but he was the person that we relied on and we reported to. Even when we were arrested, he is the one who went to visit us in Le Grange and Xholani told him what decisions we took.

CHAIRPERSON: Was Xholani Nxani reporting to Xholani Tjebilisa simply because he had been his commander whilst they were in exile? I am trying to connect the basis on which Xholani Nxani reported to Xholani Tjebilisa.

MR MALI: Xholani Tjebilisa was a respected person. For instance, I'm a member of MK, there's another member of MK but we'd find that the other member is respected because he is able to give us advice. So he reported to him for those reasons.

CHAIRPERSON: So it was not because of any particular office he held within the ANC structure within the region or within the MK structure in Port Elizabeth?

MR MALI: No, it was not that. You would report to anybody that you respect. A person that you know would give you guidance or would forward whatever to those, to the leaders. So Xholani Tjebilisa had those chances, that if he got a report maybe he would forward it. So Xholani was reporting to him.

CHAIRPERSON: Thank you, Mr Mali.

CHAIRPERSON: Mr Nyoka, do you have any re-examination?

MR NYOKA: None, Honourable Chair.

CHAIRPERSON: That being so, how do you propose to proceed, do you want to call your next witness?

MR NYOKA: Yes, please.

I call Mr Lindile Stemele, Honourable Chair.

CHAIRPERSON: Mr Stemele, are you prepared to take an oath?

LINDILE STEMELE: (sworn states)

CHAIRPERSON: You may proceed, Mr Nyoka.

EXAMINATION BY MR NYOKA: Thank you, Honourable Chair.

Mr Stemele, on page 24 of the bundle an affidavit of your statement is contained, do you confirm the contents of this affidavit?

MR STEMELE: Yes.

MR NYOKA: May it be marked Exhibit C, Honourable Chairperson?

CHAIRPERSON: ...(inaudible)

MR NYOKA: Yes, okay.

Mr Stemele, relating to this incident, can you tell us about Sammy Xagwana, what the two of you discussed relating to this incident and when?

MR STEMELE: Sammy Xagwana was my relative. We were working together in P J Animals. Whilst we were working together we would discuss and we talked about the salaries we were receiving, it was very low.

As we were still discussing this issue about the farm appeared and he told me that he was working at a certain farm. I asked him for how long he worked in this farm. He told me that he didn't make the - he was not employed there for a long time but he knew the house in this farm. I then asked him whether we can find money in that house. He said there was money in the house. I asked him what else was available in the house. He told me that there are weapons in the house, there are guns there.

After getting that information from him, knowing that we were looking for weapons or firearms, I then went to Xholani who was training me. I told him about this. After discussing this with Xholani he told me to bring Sammy with. I did that and he spoke to him. He told him about this. After that he asked him to take us and show us this place. We did got to Addo to look for this place, to look at his place. We went inside. We cut the fence, we went in. We looked around the house and he told us the time when the owner returns, it was about 7 o'clock. He told us that he's returning home at about 7 o'clock.

We then wanted to wait and see for ourselves that really he is returning home at that time. We waited and he indeed came back home at that time. We saw him going inside the house. He went in the garage. We then returned back. Nothing was done on that particular day.

It happened in that month when we went to this place, it was on a Monday, he came to me with Kenneth and Mr Mali. We went to Addo on that day. We took a taxi and it was near to the farm of oranges. We then walked 30 kilometres and we arrived in that house. ...(intervention)

CHAIRPERSON: Can I interrupt, Mr Stemele. What time did you go to this farm?

MR STEMELE: It was about 5 o'clock when we left Port Elizabeth.

CHAIRPERSON: What time did you reach the Addo house?

MR STEMELE: If I remember well, it was around 6 o'clock but it was winter so it was dark at that time.

CHAIRPERSON: What time did you expect Mr de Villiers to arrive?

MR STEMELE: We expected to arrive at about 7 o'clock because we saw him when we first went there arriving at seven.

CHAIRPERSON: Why did you have to be an hour early? If you expected him to arrive at seven, why were you there at 6 o'clock?

MR STEMELE: We didn't arrive there exactly at six.

CHAIRPERSON: What time did you arrive at the Addo house? I thought you said you arrived at about 6 o'clock.

MR STEMELE: Not exactly 6 o'clock.

CHAIRPERSON: What time then?

MR STEMELE: I can say it was after six or half past six.

CHAIRPERSON: You may proceed.

MR STEMELE: We went in through the hole, as we have cut the fence.

CHAIRPERSON: When had you cut the hole through the fence?

MR STEMELE: When we went there for the first time, when we went to inspect the place.

CHAIRPERSON: And was that three days before the incident?

MR STEMELE: I can say so.

CHAIRPERSON: We want your evidence, was it three days before the incident took place?

MR STEMELE: We cut the fence a month before.

CHAIRPERSON: A month before. When did you reconnoitre this place?

MR STEMELE: If I remember well it was in July.

CHAIRPERSON: With whom were you when you did the reconnaissance?

MR STEMELE: ...(no English translation)

CHAIRPERSON: Who was with you when you did this reconnaissance?

MR STEMELE: It was myself, Xholani and Sammy Xagwana.

CHAIRPERSON: Thank you, you may proceed. So you went through the hole that you had cut previously in July and what happened?

MR STEMELE: We went through the hole, we waited and we waited until seven. He didn't arrive. We waited and after a while we saw a van coming in through the gate. After that it parked in a driveway near the door. After the bakkie had switched off the lights we went out of that hiding place and we surrounded the van. Kenneth was sitting on the, was on the passenger's side, on the other side where the passenger sits. Myself and Xholani and Tamsanqa, we were on the driver's side.

CHAIRPERSON: This Tamsanqa, would that be Mr Mali?

MR STEMELE: It's Mr Mali. We pointed him with a gun. We were not aware that there was someone else at the back of the bakkie. Someone came out unexpectedly. We didn't know that there was someone there. He went out of the bakkie and ran away. Kenneth tried to follow, chase this person, unfortunately he couldn't' find him or he couldn't catch him.

He fired by mistake. The person ran into the house and the door closed behind him. ...(intervention)

CHAIRPERSON: If you say Kenneth followed this person who ran out of the bakkie and he couldn't catch him, what do you mean, do you mean that he couldn't catch him as he was running, or maybe he couldn't catch him while he was running away? Is it a question of not catching him or a question of not being able to locate him, after running after the man from the bakkie? May I be assisted by the translator?

INTERPRETER: I don't get it clearly also, the applicant is listening to channel two.

MR STEMELE: The person ran with a high speed, he ran into the house. Kenneth couldn't catch him, couldn't find him, couldn't catch him because he ran very fast.

CHAIRPERSON: Is it "catch" or "not find him"? That is the difficulty I'm experiencing. I seem to understand him to be saying: "Kenneth could not find him."

INTERPRETER: The problem is that the applicant is listening to channel 2, so I can't get it clearly from him even if I try to communicate with him through channel 3.

CHAIRPERSON: Oh, can somebody assist the applicant to change to the channel which will enable the translator to connect him in so that we can get clarity of that type of evidence? Can we get some technical assistance?

CHAIRPERSON: Madam Translator, can you then just try and get clarity from the applicant, what he means when he says that, whether he actually, whether Kenneth could not catch up with him or whether Kenneth could not locate him?

INTERPRETER: He couldn't catch him, or he couldn't catch up with him because the gentleman ran away in such a speed that he couldn't catch him. ...(Xhosa) "catch him", that's what he says.

CHAIRPERSON: Thank you very much, Ma'm.

ADV BOSMAN: May I just ask for some clarity here, what do you mean by saying: "He fired by mistake"?

MR STEMELE: I mean that the firearm that he was using had a problem with the trigger. The firearm that he had had a problem with the trigger.

CHAIRPERSON: If you say the person ran at such a speed that Kenneth couldn't catch up with him or couldn't catch him, do you mean that he ran straight to the house?

MR STEMELE: Yes.

CHAIRPERSON: Did this person open the door?

MR STEMELE: If I'm not mistaken I think the door was slightly open, so he ran and he got inside the house and the door closed quickly thereafter.

CHAIRPERSON: The door that he used, how far was the door from the garage?

MR STEMELE: There's one garage door and that door was used by the people and the cars. There was only one garage door.

CHAIRPERSON: If you say he ran into the house, do you mean that he went ...

MR STEMELE: Yes, he went through the garage door, he went through the garage and got into the house.

CHAIRPERSON: Did you see him when he was getting into the house?

MR STEMELE: Yes, I saw him.

CHAIRPERSON: Did you see him running into the garage and you saw him running into the house?

MR STEMELE: I saw him getting in, using the garage door. That was all.

CHAIRPERSON: You only saw him getting into the garage, what I want to know is, because you keep on referring to a house, did you see him getting into the garage and inside the house?

MR STEMELE: To try and clarify that, the garage door was in the house and I think it looks like you get in through the garage door and to the house.

CHAIRPERSON: Thank you.

Mr Nyoka?

MR NYOKA: Thank you.

Mr Stemele, what happened after that?

MR STEMELE: I heard a sound, I heard a gunfire, I heard a gunshot that was Xholani's position. While he was shooting I heard a - I heard him shooting the farmer.

CHAIRPERSON: Did you hear him or did you see him?

MR STEMELE: I just heard the gunshot. It was directed to the - I heard the gunshot directed to the window of the car. After that we saw people at the window.

ADV MOTATA: Just there, Mr Stemele, I'm confused. You say you heard a gunshot directed at the window. It is confusing to me, were you looking at the person who was shooting at the car?

MR STEMELE: I only paid attention to the person who was in the car. I was paying attention to the person in the car at the time. I heard that gunshot and that was, I realised that that was Xholani's firearm and shooting Mr de Villiers.

ADV MOTATA: You never paid attention to the gentleman who ran into the house through the garage door, did you?

MR STEMELE: I never paid attention thereafter.

ADV MOTATA: You directly took your attention to the guy who was next to the driver of the bakkie, is that what I'm understanding?

MR STEMELE: I was looking at the driver, that is so.

ADV MOTATA: Thank you, Mr Nyoka, that is all.

MR NYOKA: Proceed, what happened?

MR STEMELE: After that gunshot it looked like the people in the house heard that and they looked through the window. Xholani pointed the gun to them and he fired. I don't know how many times but he fired at them and we ran away thereafter.

We used the same route that we used when we were coming in but we, not completely. We later decided to take another route that went through the forest until we reached a certain township called Zwelitsha.

We saw a kombi there, a parked kombi there at Zwelitsha. I went straight to the driver of the kombi and I requested him to give us, to provide us with transport to go to Port Elizabeth. He agreed, he brought us to Port Elizabeth. He left us at Motherwell. We spent a night there at Kenneth's place.

MR NYOKA: Mr Stemele, one of the very first things that you said was that your discussions with Mr Sammy Xagwana were about your situation at work as far as income is concerned and you immediately said there was a place where you could get money, how far did those discussions about money go?

MR STEMELE: Those discussions, we were planning to go and rob this farm but he didn't know what was to be robbed there and I told him a lie, I told him that we were going to rob money in that farm.

MR NYOKA: Were there discussions before about robbing the farm for arms?

MR STEMELE: As I was trained by Xholani, he used to tell me that we did not have firearms. When I heard from Sammy, saying that there were firearms in that farm, I went to Xholani to tell him about the news.

MR NYOKA: And why was ...(intervention)

CHAIRPERSON: May I interpose, Mr Nyoka, just to get clarity on Mr Stemele's evidence.

You are saying that the discussion you had with Sammy was because of the grievance you had about the low salaries you both were getting at where you were both employed, yes?

MR STEMELE: Yes, that came in our discussion, as we were chatting that came out. It was not a very serious discussion but we were working and chatting at the same time and the subject came.

CHAIRPERSON: Yes, but the subject that was discussed then was how you would be able to supplement the income, is that not how I understood your earlier evidence? And that is how Sammy came to identify the house of Mr de Villiers.

MR STEMELE: Yes, that is correct, Ma'm.

CHAIRPERSON: And that it was subsequent to that discussion which had centred around the money that you were told that, well there are also firearms?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: But central to your discussion was how you could supplement your income?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Thank you.

MR NYOKA: Did the money subject ever emerge after that?

MR STEMELE: No, it was never mentioned.

MR NYOKA: If it was central in your discussions, why did it not emerge after that?

MR STEMELE: We never discussed anything about wages because my intentions were to go there to that farm and get the firearms. I told him a lie and said we were looking for money, we were going to rob money. In his intention he thought that we were going to rob money on that farm.

CHAIRPERSON: I'm completely lost, don't confuse me, Mr Stemele. At what stage did you lie to Sammy Xagwana about your intention to want to go and rob for whatever reason? At what stage did you proffer this line?

MR STEMELE: As we were chatting together with Sammy, I told him then, I told him a lie.

CHAIRPERSON: So he tells you about a house where you can get money to supplement your income and then you tell him a lie about your interest in going to rob that house for purposes of money, is that the lie you are referring to in this instance?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Thank you.

MR NYOKA: And why did Sammy not accompany you to the farm if you had discussions with him about the farm?

MR STEMELE: We did not want him to know that we went there to get the firearms.

MR NYOKA: Is that the reason why he didn't accompany you?

MR STEMELE: Yes, that is the reason, Sir.

MR NYOKA: Your co-applicant, Mr Mali, did you ever tell him about the discussions relating to money, even though you were lying? Did you tell him about the money discussions, your co-applicant, Mr Mali?

MR STEMELE: No, he was told by Xholani that there is a place where we could get firearms.

MR NYOKA: Whilst you were in prison up to this day, did you tell him that you were going to say what you said today about money? Can you answer please?

MR STEMELE: Mr Mali only knows that we went there to get firearms but Sammy knows that we went there to rob money. Mr Mali knows nothing about the money. I'm the only one who mentioned that to Sammy.

MR NYOKA: Did you tell your legal representative, myself, about the discussions with Mr Xagwana about the money issue, except for now?

MR STEMELE: No, I did not mentioned that, Sir.

MR NYOKA: Why not? We are here to tell the whole truth, why did you not tell me?

MR STEMELE: Sir, I'm telling the truth now.

MR NYOKA: Why did you not tell me?

MR STEMELE: If my memory serves me well, Sir, I even lied in front of the police.

MR NYOKA: Okay. Let me put it like this, is there anything that you have lied to me about that you want to tell me so that I know that we are clear about lies? Is there anything that you'd lied to me that you've not told me?

MR STEMELE: No, there is nothing else, Sir.

MR NYOKA: I am very relieved about that. Finally, were you a member of any organisation at the time that this incident or offence was committed or occurred, were you a member of an organisation?

MR STEMELE: I was an ANC supporter.

MR NYOKA: From when until when?

MR STEMELE: From 1995, Sir.

MR NYOKA: No further questions ...(intervention)

MR STEMELE: From 1985, sorry.

MR NYOKA: Were you ever told of any meeting where the late Mr Hani was present?

MR STEMELE: Yes, I was once told by Xholani but he didn't tell me about the details.

MR NYOKA: You are applying for amnesty for murder, first count, the second count being 2 attempted murders and the third count being robbery, did you associate yourself with the actions of those who actually fired the shots, regarding murder and attempted murder?

MR STEMELE: Yes, Sir, I associate myself because I was part in that process.

MR NYOKA: And did you testify in the High Court case of 1993?

MR STEMELE: I never testified.

MR NYOKA: No further questions.

CHAIRPERSON: Just on a point of clarification. Mr Stemele, was Xholani aware of the discussion you had had with Sammy Xagwana about money?

MR STEMELE: Xholani had no knowledge about that.

CHAIRPERSON: In the discussion that Xholani had with Sammy Xagwana, did Sammy Xagwana not disclose to Xholani about the money that would be found in Mr de Villiers' house?

MR STEMELE: Xholani was together with Sammy and on that particular day I left him there, I did not go into the house, I left. I did not hear anything about the discussion that was taking place inside the house.

CHAIRPERSON: Were you present when Sammy Xagwana had a discussion with Xholani wherein he gave details about the location of the de Villiers' house in Addo?

MR STEMELE: I brought Sammy to Xholani and I left the two of them there. I was not present when they were discussing.

CHAIRPERSON: Thank you.

Mr Schubart?

CROSS-EXAMINATION BY MR SCHUBART: Thank you.

Mr Stemele, on how many occasions did you go to Mr de Villiers' house?

MR STEMELE: We went there for the first time to look at the house, to check or inspect the house.

MR SCHUBART: And was the second occasion when the incident occurred?

MR STEMELE: On that day of the incident it was our second time there.

MR SCHUBART: And you said there was about a month in between the first visit and the second visit.

MR STEMELE: Yes, Sir.

MR SCHUBART: Now when you went to the house the second time, that's the day of the incident, did your group have - you had two firearms with you, is that right?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Where did you get those firearms from?

MR STEMELE: The firearms were brought by Xholani.

MR SCHUBART: Do you know where he got the firearms from?

MR STEMELE: I do not know where the firearms were coming from.

MR SCHUBART: Before you went on this incident, did you know that there were going to be firearms that were going to be taken with you?

MR STEMELE: Yes, I knew, Sir.

MR SCHUBART: When did you know about the firearms?

MR STEMELE: I only saw the firearm on that day of the incident.

MR SCHUBART: Was it in fact when you were on your way to the farm that you saw the firearm for the first time?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Before that you didn't know that there were going to be firearms that were going to be taken with you, is that correct?

MR STEMELE: I knew that there would be firearms that would be taken with us.

MR SCHUBART: How did you know that?

MR STEMELE: I knew very well that we wouldn't go to that place without firearms.

MR SCHUBART: And why not?

MR STEMELE: It is because we didn't know the situation there, we didn't know what was there, what would the situation would be like when we get there.

MR SCHUBART: So did you just assume that there would be firearms taken along, and then you in fact saw them just before you got to the farm?

MR STEMELE: I knew that we wouldn't go there without firearms.

MR SCHUBART: Was it easy for you to get, to obtain firearms?

MR STEMELE: No, it was not easy.

MR SCHUBART: Well did you not concern yourself about the plans that would be made to get firearms before you went to the farm?

MR STEMELE: As a person that was trained by Xholani, it is him who would go and look for firearms.

MR SCHUBART: Did you know that he would be able to obtain firearms?

MR STEMELE: Yes, Sir.

MR SCHUBART: And for someone in his position, would it be fairly easy to get firearms?

MR STEMELE: Yes, that is correct.

MR SCHUBART: So if he'd wanted to be involved in any previous robberies to get arms he would have been able to get firearms to take with him, is that correct?

MR STEMELE: I'm not sure about that, Sir.

MR SCHUBART: At the time of this incident, were you an MK member?

MR STEMELE: No, I was not a member.

MR SCHUBART: Do you remember that there was a criminal trial?

MR STEMELE: Yes, Sir.

MR SCHUBART: After you were arrested did you in fact assist the police to quite an extent with their investigations?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Did you in fact take them to Addo to point Sammy out to them?

MR STEMELE: They took - yes, they took me to Addo. The police took me to Addo.

MR SCHUBART: Did they also take you there so that you could show them who Sammy was?

MR STEMELE: Yes, that is correct.

MR SCHUBART: And did you in fact say to the police that you'd been tricked about this whole incident?

INTERPRETER: Can the speaker please repeat the question?

MR SCHUBART: Did you say to the police that with regard to this whole incident that you were tricked into taking part in it?

MR STEMELE: I was not tricked, Sir.

CHAIRPERSON: Did you say that to the police, yes or no?

MR STEMELE: No, I never mentioned that.

MR SCHUBART: Did you say to the police that you were forced to take part in this incident?

MR STEMELE: I was never forced to be on that mission and I never mentioned that to the police.

CHAIRPERSON: Did you say that to the police? Did you tell the police that you were forced to participate in this?

MR STEMELE: I did not tell that to the police.

MR SCHUBART: Did you tell the police that you had gone on this incident in order to try and obtain money from the farmer?

MR STEMELE: Yes, I told them that but I was lying.

MR SCHUBART: Did you tell them that you'd gone there to get firearms?

MR STEMELE: No, I never mentioned that.

MR SCHUBART: Because I just want to put it to you that the evidence of the investigating officer, Mr Treitsman, and this is on the criminal record at pages 260 to 261, his evidence which wasn't contested was that you told him that you were tricked to do this thing. And I presume that means to take part in this incident. Did you not say that to him?

MR STEMELE: I did not say that because the evidence that I gave I gave to a person who was speaking Afrikaans and I didn't even understand what he was saying and what he was writing also.

MR SCHUBART: Now can you tell us the first time that you went to the house, that was in the July of 1992, on that occasion did you have firearms with you?

CHAIRPERSON: You mean at the time when they were going to do the reconnaissance, Mr Schubart?

MR SCHUBART: Yes, ...(indistinct) Sorry.

Yes, on that occasion when you went to reconnoitre the area.

MR STEMELE: I don't remember us carrying any firearms.

MR SCHUBART: And that includes the people who were with you as well?

MR STEMELE: I don't remember seeing anyone with a firearm.

MR SCHUBART: On that occasion, that was now the first time when you went to reconnoitre, did you on that occasion intend to rob the farmer of anything?

MR STEMELE: We never had intentions to rob but we went there to look, to reconnoitre the house, to check the house, to look at it.

MR SCHUBART: Because as I understand the statement that you made, and this appears at page 84 of the papers, that according to your statement you said that you'd gone to that farm to rob the farm. And this was on the first occasion that you went to the farm, not the occasion of the incident itself. Is that not correct?

CHAIRPERSON: Mr Stemele, Mr Schubart is in fact referring to the confession that you made in 1993. I don't know whether you have had an occasion to have sight of that confession. If you have not, I would like you to indicate to the Committee so that we can give you an opportunity to quickly have sight of that confession. We would not expect you to comment on the content of a confession which was made approximately five to six years ago.

So if you would like to have time to have sight of your confession which you made in 1993, we will gladly accord you and afford you that opportunity. Has your lawyer shown you the confession that you are being referred to now and being questioned upon by Mr Schubart?

Mr Nyoka, you can come to our assistance here.

MR NYOKA: Thank you, Honourable Chair. The confession was read and understood by the applicant. He is fully conversant with the contents.

CHAIRPERSON: Thank you very much.

Mr Stemele, now that I've been told that you are fully aware of the confession, you may proceed to answer Mr Schubart's question.

Will you repeat your question again, Mr Schubart?

MR SCHUBART: Thank you.

In the confession you indicated that on the first occasion you went to this farm, that you went there with the purpose of robbing, is that correct or not correct?

MR STEMELE: The evidence that I gave in Court was a lie.

MR SCHUBART: Further in this confession, also on page 84 of the papers, it indicated that it was the intention of yourself and Sammy to catch the lady of the farm when she arrived but that you were unable to do that, is that correct?

MR STEMELE: That is not true.

CHAIRPERSON: Xholani was also there, Mr Schubart, maybe he will remember if you include Xholani.

MR SCHUBART: Thank you.

Xholani was also present, it was the three of you who were there on the first occasion that you went. Was it the intention of the three of you to catch firstly the lady of the farm?

MR STEMELE: As we went there before we went there and looked at this farm. There was nothing else thereafter. We left the place. There's nothing else that we did.

MR SCHUBART: Can you perhaps explain to us why it would have been contained in this confession that on that first occasion that you went there, that you hid yourselves and that you tried to catch the lady of the farm and thereafter the farmer himself? Do you know how it came about that this came into the confession?

MR STEMELE: I don't know anything about that.

CHAIRPERSON: Now you made the confession, Mr Stemele. When you told the police what is contained in your confession, were you telling the truth or were you lying? You can't say you have no knowledge thereof because this confession was made by you.

MR STEMELE: As I've already said before, everything that I said in front of the police was a lie.

ADV MOTATA: Was it also a lie that at the first time in July when you went there you were in the company of Sammy and Xholani, was it a lie as well?

MR STEMELE: That is true.

MR SCHUBART: Why would you tell the police this lie, what was the purpose of telling them that you tried to catch first the lady and then the farmer, if it wasn't true?

MR STEMELE: I don't know anything about that, Sir, that statement, the one that you've just mentioned.

CHAIRPERSON: Mr Stemele, either you are able to explain why you gave that statement, this is your confession, you can't say you have no knowledge. Are you saying that you are not the author of this confession? Are you making a disclaimer of this confession or are you saying that you lied, the content of your confession contains lies? And if so, Mr Schubart would like to know why you lied. Let's get to things. Do you agree that this document represents the confession you made?

MR STEMELE: Yes, I agree that I made a statement but I disagree with the fact that we ...

CHAIRPERSON: Now in that confession you've stated that you went to the farm because you wanted to rob, in fact you were unsuccessful because the lady of the farm - you were unable to get hold of the lady of the farm. I mean your arrangements went into disarray but your original intention was to go and rob the lady of the farm. That is what is contained in your confession, did you say that to the police?

MR STEMELE: What I told the police was this: we went there to the house, to the farm and we reconnoitred the farm. I did not tell them that our intention was to go there and rob.

CHAIRPERSON: Mr Stemele, answer a very simple question. Are you saying what is contained in your confession did not come from you, you did not say this? What does it that you are saying, this does not reflect the truth of what you told the police? I mean lying is something else but are you saying that you never said what you said here at all?

MR STEMELE: I will agree.

CHAIRPERSON: With what are you agreeing? That you said what is contained in this confession?

MR STEMELE: Perhaps I cannot remember well.

CHAIRPERSON: Your legal representative has just confirmed to us that you are fully aware of the contents of your confession, what is it that you don't remember? You also agreed and conceded that you are fully conversant with the contents of your confession. We just want to have time. We really need to get on with this application and finalise it. We are not going to be stuck into a situation where you are dilly-dallying. You are here to give evidence in the most honest manner that you can.

If you don't understand something, we are happy to clarify issues for you but we wouldn't want you to be dilly-dallying. So what is it that you are agreeing to, that you made this confession to the police, to one Capt G G McClaren on the 23rd of August 1992?

MR STEMELE: Yes, I made that confession.

CHAIRPERSON: Now why did you lie to him? That is the question posed by Mr Schubart. Why did you lie to him that you had gone to Mr de Villiers' house and tried to rob the lady there when you were in the company of Xholani and Sammy?

MR STEMELE: Let me say this directly. I never mentioned that we went there to rob the lady. I did that - I made a confession statement in front of the police but I never mentioned the fact that when we went there, we intended to rob a lady.

CHAIRPERSON: You know I don't know what you are saying now. You have just admitted to having made this confession. Now you are saying you didn't make this confession.

What is it that we - which version are we then to take from you? Did you or did you not make this confession? Did you or did you not say to the police that you tried to rob the lady of the house when you were in the company of Sammy and Xholani?

MR STEMELE: I never mentioned that our intention was to go there and rob the lady. We went there with Xholani and Sammy to inspect the place, but we did not go there to rob a lady.

CHAIRPERSON: Now did you not say, and I quote at page 34:

Did you not say that to the police?

MR STEMELE: The only thing that I mentioned was that the owner of the farm came quickly and went quickly inside the garage. We never got a chance to grab him or catch him. We left. I never mentioned anything about robbing the lady of that farm.

CHAIRPERSON: But then the point is, you had earlier on went with Xholani and Sammy to try and rob this farm. Do you at least agree to that?

MR STEMELE: Yes, I agree.

CHAIRPERSON: And do you agree that happened in July 1992?

MR STEMELE: Yes, I agree.

CHAIRPERSON: At least we are making a start. Please proceed, Mr Schubart.

MR SCHUBART: Thank you. And on that occasion, this is now during July where you were with Xholani and Sammy and you wanted to rob the farmer on that occasion, you say none of you had firearms? So you were going to rob him without having firearms, is that correct?

MR STEMELE: We went there to have a look at the farm. We did not go there to rob.

CHAIRPERSON: Why did you say in your confession that you went there to rob the farm in July 1992? Why did you say that?

MR STEMELE: We only went to rob the farm later, when we were going there for the second time.

CHAIRPERSON: I know, but why did you in your confession state that you went there in July '92 to go and - in fact your confession does not indicate the month in which you went there. It's you who has just told us that it was July. Now in your confession you say that you went there with Sammy and Xholani to rob the farmer.

We understand that it was not your intention to rob what you have termed in your confession: "the mother of the farm" but that your intention was to rob the farmer. Why did you say that if it was never your intention to rob the farmer? We merely need an explanation why you lied then and your version is different today from that which is contained from the evidence contained in your confession.

MR STEMELE: Let me agree. It might happen that I forgot. I apologise for that.

CHAIRPERSON: I accept your apology even though I don't think we really, you have anything to apologise for. All that I need to know is that in your confession you stated that you went with Sammy and Xholani to rob the farmer, whereas in your evidence today you say that the reason why you went there was to conduct a reconnaissance.

Now if we are to understand the version that you are putting up today, the intention of going there with Sammy and Xholani was to conduct a reconnaissance and not to rob. What explanation do you give for having stated in your confession that you went there to rob? Am I making myself simpler?

MR STEMELE: I have nothing to say about that.

CHAIRPERSON: Let's proceed, Mr Schubart.

MR SCHUBART: Thank you.

You've read your confession and without telling me whether what is stated in it is true or not true, can you perhaps tell us, the rest of your confession, does it contain what you in fact told the police? Whether it's a lie or not but is that what you told the police, what is contained in this confession?

CHAIRPERSON: Mr Schubart, I think from what we can gather from Mr Stemele we would take the whole day if we were to phrase questions in that fashion. Let's be specific. Maybe if you can just give an indication what he said in his confession which you want him to admit, whether it was the truth or not.

MR SCHUBART: Very well, thank you.

In your confession on page 85 towards the bottom of the page, it appears there that when you went to the farm on the occasion of the incident itself, that on your way there you asked both of them, and this would have been Xholani and Kenneth, why they had firearms as your plan was to use knives? That is what is contained in your confession, do you have any comment about that?

MR STEMELE: Yes, I did ask that question.

MR SCHUBART: Why did you ask the question, did you not expect them to have firearms?

MR STEMELE: First of all the reason for me to ask that question is solely because we were not going to use the firearms, we were just going to threaten the people.

MR SCHUBART: Were you going to threaten them, with what were you going to threaten them?

MR STEMELE: We were going to threaten them with knives, using knives.

MR SCHUBART: So you in fact were surprised to see that there were firearms as well?

MR STEMELE: Yes, I was surprised.

CHAIRPERSON: How is that so, Mr Stemele, if you have just given evidence when you were questioned by Mr Schubart as to whether you were aware that firearms were going to be used, and your unequivocal response was "yes" you were aware.

And you were asked at what stage you became aware that firearms were going to be used. You then said you became aware en route to Mr de Villiers' house, but your response to the earlier question was you knew you were going to use firearms even before you went there because you wouldn't be able to go to such a place without firearms as you didn't know what the situation would be like when you got there. That is your evidence. Now what made you to be so surprised?

MR SCHUBART: If you see the firearm for the very first time it's a frightening situation. I was seeing a firearm for the very first time.

CHAIRPERSON: Do you really expect us to believe that evidence?

MR STEMELE: You were trained by Mr Xholani.

MR STEMELE: There were no firearms involved in that training, it was just physical training.

CHAIRPERSON: And the reason why you went to rob was to enable your unit and other units to be armed, using the firearms that you would have stolen from the farms.

MR STEMELE: Yes, that is correct.

CHAIRPERSON: I'm at a loss. And you have just stated and confirmed that you knew you were going to use firearms, you knew before the operation got underway, during the planning, that you were going to use firearms. By your own admission you couldn't have undertaken a mission of this nature without having to use firearms, they were a necessary weapon. For your mission to succeed you had to rely on them, is that not so?

MR STEMELE: Yes, I said so.

MR SCHUBART: Thank you, I'll carry on with a different aspect.

On the day of the incident it's common cause that the farmer, Mr de Villiers was shot, you remember that he was shot hey?

MR STEMELE: Yes.

MR SCHUBART: Was it necessary to shoot him?

MR STEMELE: Yes, it was necessary because the mission had failed and he was shot at because we did not want him to pursue us.

MR SCHUBART: That was the only reason why you shot him?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Now the same sort of question that were put to Mr Mali, why was it necessary to shoot him to the extent that he died? Why not, as the Honourable Chairperson put to Mr Mali, shoot him in the foot and then you can't ran after you.

MR STEMELE: The intention was not to shoot to kill but we just wanted him not to be able to chase us.

MR SCHUBART: Yes, but the result was that he died. Why not shoot him for instance in the foot so that he can't chase you and also that he doesn't die? Then you'd be able to cover both intentions.

MR STEMELE: The way the bullet was fired, it looked like it hit him somewhere.

MR SCHUBART: But why was he not shot merely in a manner so that he would not be able to chase you instead of in a manner that he would die from the shot? Can you explain that?

MR STEMELE: I do not have a response to that question.

MR SCHUBART: And when you realised that the mission had failed, why not merely demobilise the vehicle that he was in as opposed to him himself?

MR STEMELE: As I've already mentioned that if we left him there maybe he would rush into the house and alert the people and the people would chase us. Maybe we would be shot at or be arrested on that scene. That is why we had to shoot him, so that he couldn't even move, he couldn't even chase us.

ADV MOTATA: Mr Schubart, may I come in here with your permission?

Mr Stemele, when did you people realise the mission had failed?

MR STEMELE: We realised that the mission had failed after Kenneth had misfired.

ADV MOTATA: Just take us through, misfired what and aiming at what? We were not there, I mean we are asking you to assist us. I don't know.

MR STEMELE: When the gentleman who was at the back of the bakkie ran quickly out of the bakkie and that led to Kenneth pulling his trigger by mistake.

CHAIRPERSON: How do you know that Kenneth pulled the trigger by mistake? Did he tell you that?

MR STEMELE: The firearm that he had, the trigger was not working properly. That is why I'm saying he fired by mistake.

CHAIRPERSON: But how do you know that he fired by mistake? Your evidence seems to suggest one thing and one thing to me, that Kenneth was flying at a fleeing person to stop that person from getting into the house and probably alerting the occupants therein.

MR STEMELE: That is my perception.

CHAIRPERSON: So it is in fact speculation, it is not a fact that Kenneth's firearm misfired or that Kenneth fired erroneously, as your papers would suggest and as your evidence would suggest?

MR STEMELE: Yes, that is what I think, I think that Kenneth fired by mistake.

CHAIRPERSON: But didn't you have an occasion to discuss this matter with Kenneth?

MR STEMELE: It was later discussed, after that incident.

CHAIRPERSON: And what did he tell you about what you speculate to have been an error on his part caused by a defective machine he was using?

MR STEMELE: He also said that it was a mistake because the trigger was loose.

ADV MOTATA: Now it is making sense because you cannot say to us for instance, that "it was not our intention to kill him but to demobilise him", because you knew of that fact after the event. At the scene you did not know this, why can't you just be forthright and tell us: we subsequently discussed this and we realised why he shot at Mr de Villiers? Is it difficult to say so? Or wouldn't I be right that everything was discussed after you had left the scene of the crime and that's when everybody said why he did what he did at the scene of the crime?

MR STEMELE: Yes, that is correct.

ADV MOTATA: You may proceed, Mr Schubart.

MR SCHUBART: Thank you.

At the incident itself, you gave us evidence that the people from the house looked out of the window and shots were fired at them as well, is that correct?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Now when the shots were fired at them, were you in the process of running away at that stage or were you still standing there at the scene?

MR STEMELE: I was already running away at the time.

MR SCHUBART: And had Mr de Villiers already been shot before the shots were fired towards the house and at the people at the house?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Because the impression I had from your affidavit on page 26 was that you first fired shots at the people in the house and then Mr de Villiers was shot.

CHAIRPERSON: That wouldn't be correct, Mr Schubart. I have also had the same difficulty you had except that you see the word "and" does not seem to indicate which event happened first, it's simply an indication that both happened. I initially read it in that fashion.

MR SCHUBART: Sorry, yes, it is perhaps ambiguous in that regard. Why were shots fired at the people who were in the house while you were running away?

MR STEMELE: We did not want the people there to see our faces.

MR SCHUBART: But while you were running away they wouldn't be able to see your faces in any event, even if you didn't fire the shots, so why fire the shots?

MR STEMELE: We wanted them to remain in the house. We did not want them to see us.

MR SCHUBART: Yes, but you've told us that you fired shots so that they wouldn't see your faces, now how would the firing of the shots prevent them from seeing your faces while you were running away?

MR STEMELE: The reason was this, there was a big light on the driveway and that was on. It would be easier for them to see our faces.

MR SCHUBART: Even while you were running away?

MR STEMELE: Yes, that is correct.

MR SCHUBART: Can you tell us, why did you lie to your friend Sammy, when you told him that you were going to the house to rob for money?

MR STEMELE: The reason to tell Sammy a lie is I did not want Sammy to know that we were going there to get the firearms. I did not want to tell him that I was a member of the SDUs and that is why I lied to him.

MR SCHUBART: Since when had you been a member of the SDU?

MR STEMELE: I started in 1991.

MR SCHUBART: But you didn't become a member of the MK, is that right?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: May I interpose there, Mr Schubart?

Why didn't you want to tell him that you were a member of the SDU? That was no offence to be a member of the SDU.

MR STEMELE: I was told that I must never ever mention to anyone that I was a member of the SDU. That's what I was told.

CHAIRPERSON: Did you not think of recruiting Sammy who seems to have had valuable information when it comes to providing resources that you so dearly needed as a unit? Did you not think of recruiting him into your unit?

MR STEMELE: That did not occur to me.

ADV MOTATA: Were you told that the SDU is secret and that you shouldn't tell anybody that you are a member, was it a secret organisation?

MR STEMELE: I was told not to tell anyone, not to tell just anybody who would go on and tell people about the SDUs.

ADV BOSMAN: Did you know what political party Sammy supported?

MR STEMELE: No.

ADV BOSMAN: But if you only told Sammy that you were interested in money and that you were going to rob money, how did it come about that he told you about the firearms?

MR STEMELE: The reason for him to mention the firearms, he knew the house well inside. He used to see everything in the house because he used to work there.

ADV BOSMAN: Yes, but if you were talking money, why would he mention the firearms, how did that come about? Did you ask him whether the farmer had firearms or did he just mention it out of the blue? That is what I find peculiar.

MR STEMELE: He made mention of that and I also asked him.

CHAIRPERSON: Mr Stemele, at the time when this information was given to you by Sammy, you were both working in the same place.

MR STEMELE: Yes, that is correct.

CHAIRPERSON: And Sammy had worked for the de Villiers' at some other time, yes?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: And you trusted him to be able to share the grievance you had against your employer about the low wages or salaries that he was giving you.

MR STEMELE: I trusted him because he was my relative.

CHAIRPERSON: And further, Sammy was your cousin, is that not so?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Now do you want us to believe that you wouldn't have been able to disclose a simple fact that you were a member of the SDU, not even to both a friend and a relative?

MR STEMELE: As I was told by Xholani that I'm not supposed to disclose that information to anyone, I was acting in accordance with what I was told by Xholani.

CHAIRPERSON: We find it very difficult to believe that you would be unable to disclose that part to a person who is both a co-worker, a person that you've shared a grievance with about the conditions of employment in your workplace and more importantly a relative, unless you had cause to believe that Sammy would sell out the information and that belief was based on something that Sammy had earlier on done. Otherwise we just find it improbable.

Mr Schubart?

MR SCHUBART: Thank you.

When Sammy gave you this information, where was he employed at that stage?

MR STEMELE: He was working temporarily at P J Animals.

MR SCHUBART: And what has become of Sammy, where is he now?

MR STEMELE: I don't know anything about him. I don't know his whereabouts.

MR SCHUBART: Have you not seen him since this incident?

MR STEMELE: I last saw him during a parade at Le Grange. I saw him there for the very last time.

MR SCHUBART: When was this?

MR STEMELE: When we were arrested, when we got arrested.

CHAIRPERSON: I'm sorry to interfere again. It had been brought to my attention that it is important for us to end our proceedings at 4 o'clock for logistical reasons. I don't that this wouldn't be an appropriate moment for us to adjourn and reconvene tomorrow morning. Are you still going to be long with your cross-examination on Mr Stemele?

MR SCHUBART: No, I won't be long now, I don't intend being more than one further question.

CHAIRPERSON: Which will be fairly short?

MR SCHUBART: Yes.

CHAIRPERSON: Thank you.

MR SCHUBART: If you'd managed to be successful with your objective and got into the farmhouse, would you have taken money from the farmhouse as well?

MR STEMELE: That would depend on my commander.

MR SCHUBART: Thank you, I've no further questions.

CHAIRPERSON: Thank you very much, Mr Schubart.

Unfortunately we've got to bring these proceedings to a close for today. Because of logistical reasons we can't proceed further than 4 o'clock. This matter will proceed again tomorrow at half past eight, thank you.

MR SCHUBART: Sorry?

CHAIRPERSON: Yes?

MR SCHUBART: I do have a problem tomorrow. I did mention it to my learned friend previously. Initially this matter was going to be heard yesterday and today and we've set aside these two days for this matter. It was expected to hopefully finish yesterday but go on to today. I do have a problem tomorrow. I could perhaps be available tomorrow afternoon but tomorrow morning would be very, would probably be impossible for me.

CHAIRPERSON: We'll allow the matter to stand down until tomorrow afternoon. What time tomorrow afternoon?

MR SCHUBART: Would 2 o'clock be in order?

CHAIRPERSON: The matter will therefore stand down until tomorrow morning at 2 o'clock.

MR SCHUBART: I'm indebted to you, Chairperson.

CHAIRPERSON: Until 2 o'clock tomorrow.