DATE: 17 APRIL 2000

______________________________________________________CHAIRPERSON: For the purposes of the record, my name is Judge Pillay. I'm going to ask my colleagues and the various representatives to identify themselves on record please?

JUDGE MOTATA: My name is Judge Motata.

ADV SIGODI: It's Advocate Sigodi from the Amnesty Committee.

MR KOOPEDI: My name is Brian Koopedi, I appear for the applicant in this matter who is Mr ...(inaudible)

MS MTANGA: I am Lulama Mtanga, I am the Evidence Leader.

CHAIRPERSON: Which application are we going to start with?

MS MTANGA: Chairperson, the first matter that we are going to deal is the application of Ngobeni Moglaba Balati.

Chairperson, we have encountered problems regarding notification of victims. There's a group of victims who were policemen at the time of these incidents and they were actually in the army at that time and according to the information we received from the army headquarters is that they were on conscription in that year and they were actually civilians. It's been impossible for us to locate them from the addresses given by the headquarters and an advert was supposed to be placed by our media office on the local papers in Pretoria and Bloemfontein and according to the information that I have received from the analyst, ...(indistinct), this was not done by the media secretary. So therefore, these victims were not notified.

CHAIRPERSON: I hope you will convey our displeasure at the negligence on the part of the office to see to it that the hearing is properly prepared and that where certain procedures had to be complied with, they were not done. I don't think we've got any option but to allow the matter to be postponed. What other matters have we got?

MS MTANGA: The next matter that's set down for today, Chairperson, is the matter of Frans Klokwe Maserumule, amnesty number 6217/97 and the applicant is ready to commence.

--------------------------------------------------------------------------CHAIRPERSON: Yes Mr Koopedi?

MR KOOPEDI: Chairperson, indeed we are ready to proceed. The applicant is before you and he is ready to be sworn in.

JUDGE MOTATA: What language does the applicant wish to testify in?

MR KOOPEDI: The applicant will be testifying in English, Chairperson.

FRANS KLOKWE MASERUMULE: (sworn states)

EXAMINATION BY MR KOOPEDI: Thank you Chairperson, Honourable Committee Members.

Mr Maserumule, is it correct that you are an applicant in this matter?

MR MASERUMULE: It is correct, Sir.

MR KOOPEDI: Where are you employed at the moment?

MR MASERUMULE: I'm in parliament.

MR KOOPEDI: Is that in Cape Town?

MR MASERUMULE: Yes.

MR KOOPEDI: Now at the relevant time, at the time of this incident, were you a member of any political organisation?

MR MASERUMULE: I was a member of the ANC and uMkhonto weSizwe.

CHAIRPERSON: ...(inaudible)

MR KOOPEDI: Chairperson, this incident occurred in 1982. We were hoping to ...(intervention)

CHAIRPERSON: Let's find out from him. When did this incident occur?

MR KOOPEDI: It occurred in 1982.

CHAIRPERSON: Are you not able to be more precise?

MR MASERUMULE: I can't be more precise, ...(inaudible)

CHAIRPERSON: Yes?

MR KOOPEDI: Thank you Chairperson. Now when did you join the ANC?

MR MASERUMULE: I actually left the country in 1979 but I joined the ANC in 1980 in Mozambique in Matola.

MR KOOPEDI: Did you receive any military training?

MR MASERUMULE: I did receive military training in Angola in 1981.

MR KOOPEDI: After receiving the military training were you given any instructions, were you infiltrated into that country or given any missions?

CHAIRPERSON: ...(inaudible) that we are aware of the existence of uMkhonto weSizwe. Did you become a member of that wing of the ANC?

MR MASERUMULE: As I said earlier on, I joined the ANC as well as uMkhonto weSizwe.

CHAIRPERSON: ...(indistinct)

MR KOOPEDI: After receiving the military training, were you given any other tasks, were you infiltrated into the country or were you given any missions?

MR MASERUMULE: Yes we were a unit of 17, we were given a mission to go and clear a route from Swaziland into Tonga. There was a military base of anti-insurgents units in Tonga. According to information we were given, when the unit was being grouped.

CHAIRPERSON: Maybe I'm going to get confused. Tonga, where is that?

MR MASERUMULE: Tonga is ...(indistinct)

CHAIRPERSON: Oh, alright. Yes?

MR KOOPEDI: Now you say you were a unit of about 17?

MR MASERUMULE: That's right.

MR KOOPEDI: Would you name the people or the members of this unit?

MR MASERUMULE: I cannot exactly mention the names but the people who I can mention were the commanders because they had already been called by a code name then. Our senior commander then responsible for Northern Province. Asiti was Northern Transvaal, Durban was Comrade Mancheck and the commander for the actual operation was Comrade Peter Malada.

MR KOOPEDI: Do you ...(intervention)

CHAIRPERSON: Could you just spell that name please?

CHAIRPERSON: The commander.

MR KOOPEDI: The overall commander was Mr Mancheck, which is spelt M-A-N-C-H-E-C-K and the commander for the specific operation was Peter Malada. Malada is spelt M-A-L-A-D-A.

CHAIRPERSON: Before you carry on, can you tell us exactly what this operation was? You said to clear the way to Tonga?

MR MASERUMULE: Well it was clear to the way into the country, the unit was Tonga so it was ...(indistinct) I'm getting to that now.

JUDGE MOTATA: Are you not saying, Sir, that Tonga is in KwaZulu Natal?

MR MASERUMULE: Yes, Sir.

JUDGE MOTATA: Wouldn't that be in the country?

MR MASERUMULE: Yes, Sir.

JUDGE MOTATA: Now which way were you clearing within the country because you're now in the country because Tonga is in KwaZulu Natal?

MR MASERUMULE: ...(inaudible) so we couldn't get into the country before we ...(indistinct) moved there, the unit, military ...(indistinct).

CHAIRPERSON: In Tonga?

MR MASERUMULE: In Tonga, yes. The anti-insurgency unit of the SADF.

JUDGE MOTATA: Thank you Mr Koopedi, you may proceed.

MR KOOPEDI: Now if I understand your evidence to be correct and please confirm this, you were part of a unit that was responsible for clearing the way by attacking this unit of the SADF, is that correct?

MR MASERUMULE: Yes, Sir.

MR KOOPEDI: Now would you briefly tell this Honourable Committee where was this operation planned?

MR MASERUMULE: The operation was planned in Mozambique in Matola after information was made available to us but there was an anti-insurgency unit which established a temporary base in Tonga. Actually it was from Namibia then, that unit. So after that information the unit was grouped and I was responsible for preparing the unit physically, to prepare them physically for the operation.

MR KOOPEDI: Please proceed to explain the operation after the physical preparation? What then happened?

MR MASERUMULE: After the preparations we moved into Swaziland in Matzapa, Manzini, to wait for further instructions because a reconnaissance was supposed to be made, on the spot the reconnaissance was supposed to be made before we could move in for the attack. So we had to wait in Swaziland for the on the spot reconnaissance to be made before we could move in. We were grouped again in Swaziland.

MR KOOPEDI: What happened thereafter?

MR MASERUMULE: Thereafter a date was set, a date and time was set and then six bakkies were made available for us to get into South Africa.

MR KOOPEDI: Who made them available?

MR MASERUMULE: Our head office, our regional head office in Mozambique.

MR KOOPEDI: Okay, go on?

MR MASERUMULE: Then a time and a date was set. We moved into the country in Tonga. The on the spot reconnaissance, the information that was made available to us, on our way to Tonga, was that there was also a police station next to the camp. Then we arrived on the spot we were divided into two groups. A group of three people went into the police station, the rest of us, the ...(indistinct) of us went into the camp and then the operation started. It was in the early hours of the morning around ...(intervention)

CHAIRPERSON: ...(inaudible)

MR MASERUMULE: Yes, that's right and the other one went into the camp and then the actual attacks started. It was in the early hours of the morning around - between 1 and 2.

CHAIRPERSON: What was going to happen ...(inaudible)

MR MASERUMULE: I couldn't hear that, Chairperson?

CHAIRPERSON: I asked what was the plan for the police station.

MR MASERUMULE: Okay, the plan for the police station was also to attack.

CHAIRPERSON: Yes.

MR MASERUMULE: Can I proceed? After the operation was carried out, we then proceeded ...(indistinct).

CHAIRPERSON: We would like some details about the operation, how it was carried out.

MR MASERUMULE: Your actual operation, Chairperson, I will ...(indistinct) in the manner in which it was ...(indistinct) in line with what the operation was ...(indistinct) Bazuka with six shells. There was one light machine gun and the rest was AK-47s ...(indistinct).

CHAIRPERSON: What was - were you going to use Bazukas directed at these targets or what was going to happen.

MR MASERUMULE: Chairperson, the Bazukas were going to be directed at the target.

CHAIRPERSON: Both?

MR MASERUMULE: After both of them, the three of them?

CHAIRPERSON: Yes, I mean both targets.

MR MASERUMULE: No, no, as I said ...(indistinct), the other people were ...(indistinct) police station ...(indistinct) AKs. The rest of us ...(indistinct) Bazukas, light machine guns and AK-47s.

Then the ...(indistinct) was carried out after a command was given with a Makarof pistol and the actual attack started. By the time we left the spot the camp was flat to the ground.

MR KOOPEDI: What weapon did you have personally?

MR MASERUMULE: Personally I was carrying a Bazuka with six shells.

MR KOOPEDI: Did you fire your Bazuka?

MR MASERUMULE: All the shells.

MR KOOPEDI: And directed them at the ...(intervention)

MR MASERUMULE: At the target.

MR KOOPEDI: At the target meaning the camp?

MR MASERUMULE: The camp, yes.

MR KOOPEDI: Do you know if your other comrades used the weapons they had with them?

MR MASERUMULE: Yes, I can prove that because after the operation we have to check as to how much ammunition was still available. That was how we could verify. We actually wanted to verify as to whether anybody had died inside the camp or anybody was injured but there was an exchange of fire, somebody was, somebody who we didn't know where that person was hiding from, there was an exchange of fire, we had to retreat again.

MR KOOPEDI: What time did you say this operation took place?

MR MASERUMULE: It took place in the early hours of the morning between 1 and 2.

MR KOOPEDI: 1 and 2 and you said this was in 1992?

MR MASERUMULE: 1982.

MR KOOPEDI: But you cannot recall the date and the month?

MR MASERUMULE: I cannot recall the month.

MR KOOPEDI: Now after attacking the camp and there was this return of fire, you say you retreated. What does that mean? Did you retreat just on that scene or did you go back to Swaziland?

MR MASERUMULE: Well we actually scattered in the bush in our retreat because everybody was trying to run for cover and we had to regroup again where the cars were parked.

MR KOOPEDI: And what happened thereafter, after regrouping?

MR MASERUMULE: Then we drove back to Swaziland, same morning.

MR KOOPEDI: And were you ever arrested for this incident?

MR MASERUMULE: I was not arrested for this incident, I was arrested for something else. I was arrested and charged for terrorism, not for this incident in particular.

MR KOOPEDI: Now in terms of regarding to what you have said and referring you in particular to this operation which is an attack on a unit ...(intervention)

CHAIRPERSON: Were you convicted of this incident?

MR MASERUMULE: I was ...(inaudible) incident.

MR KOOPEDI: With regard to this incident do you think you have told this Honourable Committee the whole truth, thereby complying with the requisite full disclosure?

MR MASERUMULE: I think I have everything to benefit, Sir, from telling the truth.

MR KOOPEDI: So you think you've told the truth?

MR MASERUMULE: I think so.

MR KOOPEDI: Now ...(intervention)

CHAIRPERSON: It's not a matter of thinking that he told the truth, either he did tell the truth or he didn't.

MR MASERUMULE: Yes, your Honour, I told the truth.

CHAIRPERSON: Thank you.

MR KOOPEDI: Thank you Chairperson.

Now, was there any personal benefit? Did you benefit anything personally financially or otherwise for having participated in this operation?

CHAIRPERSON: I notice what you said in your written application. Let me explain the purpose of that question. The Act says that you can't get amnesty if you behaved in a mercenary way when committing this act. I see in your written application you say that you became more brave and more committed and perhaps even more committed to the cause. I don't think that's what the Act envisaged. The Act envisaged maybe you were paid or you were given a house or car or whatever, something like that. Did you benefit in that way in committing this ...(intervention)

MR MASERUMULE: Your Honour, if I may explain something to you? If I understand the question, if I'm allowed? I belonged to the liberation movement. It is ...(inaudible), so it's not ...(inaudible), it's not political.

CHAIRPERSON: Yes, that's what I've explained, I don't think the Act was talking about any political benefits or mental benefits, they're talking about actual mercenary benefits which doesn't seem to be the case when you answer all these questions here. I just thought it fair to you to explain the purpose of the question.

MR MASERUMULE: I did not benefit anything material.

MR KOOPEDI: Thank you Chairperson. We had prepared on that aspect.

And finally, do you regard this action as having been politically motivated?

MR MASERUMULE: Yes, I regard it as being politically motivated because as we would understand, all of us, there was puppet system which was supposed to be fought and we carried out this operation, was amongst other things that we have ...(indistinct) was reaching the - where we have reached today, that is politically.

MR KOOPEDI: Chairperson, that would be the evidence from the applicant. Thank you.

MS MTANGA: I have no questions, Chairperson.

ADV SIGODI: This terrorism incident that you were arrested for, were you convicted for it? Did you serve time for it?

MR MASERUMULE: Yes I was sentenced for thirteen and a half years ...(indistinct) imprisonment. I served only six years.

ADV SIGODI: But you have not applied for amnesty in respect of this?

MR MASERUMULE: Oh, I couldn't because I was charged and convicted and served a sentence for those things, there was no point in that.

CHAIRPERSON: Whatever the reasons are, the question is you did not apply for amnesty in respect of those incidents?

MR MASERUMULE: ...(indistinct) terrorism.

CHAIRPERSON: That for which you served sentence?

MR MASERUMULE: Can you rephrase the question again, Sir?

CHAIRPERSON: We want to know whether you applied for amnesty in respect of the offences for which you were convicted and served a sentence of six years?

MR MASERUMULE: When I was released from prison I was indemnified.

ADV SIGODI: Indemnity.

CHAIRPERSON: Okay.

MR KOOPEDI: And perhaps if I may answer that question for him, the answer is no, he is not applying for amnesty for any of those incidents that are listed on the SAPS-69. We realised that we had not put that in the application form and if we were to bring it now it would be an ovation so we agreed that amnesty is only being sought only on this instance that he has testified on.

CHAIRPERSON: Mr Koopedi, has he made any other application for amnesty in respect of those offences?

MR MASERUMULE: No Sir.

CHAIRPERSON: ...(indistinct) Mr Koopedi, you're going to have to help me here. I see in answer to question 9(b) - I think you are better equipped to answer the question than your client. We're not too sure for which offences he is applying?

MR KOOPEDI: Chairperson, this application is based or is intended for a single action. This is an action that occurred in 1992 - I'm sorry, in 1982 at a place called Tonga in Kwa-Zulu Natal.

CHAIRPERSON: Our difficulty is knowing what he is applying for, either murder or attempted murder or arson or whatever?

MR KOOPEDI: Chairperson, the applicant's understanding at that time of commission and now was that there were a number of people, 45 people, who were supposed to have been at that camp according to the information they had and his instructions to me and in fact this is what the evidence is that when they left the scene they had flattened everything. His belief would then have been that people, many people, 45 people could have been killed or injured. However, since he had immediately after the operation fled back into Swaziland, he has no knowledge as to the nature of the casualties that were there. It appears from the bundle of documents that we have that according to the SANDF, they believed that there were no casualties which is something that stands in contrast with what he believes.

CHAIRPERSON: I don't know if you were informed of an attack by the SADF on an ANC camp, I think in Angola, where they bombed a whole city where there was nobody in the city?

MR KOOPEDI: Yes, yes. That is probable, but what I'm trying, what we're trying to explain here is that we are therefore unable to say did we kill on that day, if we killed who did we kill?

CHAIRPERSON: Yes.

MR KOOPEDI: It also appears that, you know, there are no records from the Police. However, applicant says he was part of a group that attacked an army base.

CHAIRPERSON: It would not be out of order to, if we are going to grant amnesty, to grant it in the following terms. For an undetermined number of attempted murders, because we don't know how many people were there, if there were any people, arson of that camp. Now before we do that, we need to find out also what the camp was made of. Was it structures or tents or whatever, but we'll come to that. Then there would be unlawful possession of explosives in contravention of the Explosives Act and unlawful possession of firearms and ammunition and perhaps we can add a rider, any offence that may arise out of the commission or those activities committed on that day at this incident which may cover any murder may have occurred.

MR KOOPEDI: I agree, I think that would be the way to look at a possible draft order.

CHAIRPERSON: You can't blame the applicant for not being able to tell us whether there were casualties or not by the nature of the attack. Would you agree with that?

MR KOOPEDI: I concede that.

CHAIRPERSON: Arson by it's very nature, arson by it's definition, the requirements thereof must be the burning of a structure, that is not a loose structure, fixed structure. We don't know whether that camp was made of fixed structures or tents or whatever. Maybe we can be told what it is, because if it wasn't fixed structures then it's not arson, that is malicious injury to property, I suppose. Do you follow what I'm saying?

MR KOOPEDI: Thank you Chairperson.

Now Mr Maserumule, the camp that you attacked, what type of a camp was it?

MR MASERUMULE: As I mentioned earlier on, Sir, I said it was a temporary base. Obviously that's made of tents and there was razor wire around.

CHAIRPERSON: ...(inaudible) it was made of tents. Now, the attack on the police station, although you didn't go into the police station are you able to tell us, even from reports that you received thereafter, what happened there, was it an attack on the building of the police station or only the police in this police station or what? What was the position there?

MR MASERUMULE: Well I can't say what the position was about but we later received ...(inaudible) and the intention was only to attacking those people, if they were killed. The intention was to make it impossible for them to react ...(inaudible)

CHAIRPERSON: So you wanted to negate any possible defence by them in the attack on the camp?

MR MASERUMULE: Pardon?

CHAIRPERSON: You wanted to negate ...(intervention)

MR MASERUMULE: That's ...(inaudible) what I'm saying.

CHAIRPERSON: So you are in no position to say whether they were injured or they were killed?

MR MASERUMULE: I'm not ...(inaudible)

CHAIRPERSON: And you are unable to say what happened to that police station?

MR MASERUMULE: Well I can't say, I was not part of that ...(inaudible).

CHAIRPERSON: When you ran away, when you retreated, did you not see what happened or the results of what was happening?

MR MASERUMULE: You couldn't, Sir, as I said we were running for cover because there was an exchange of fire.

CHAIRPERSON: Oh, okay. And when you reached Mozambique were there no reports on what happened to the police station or at the police station?

MR MASERUMULE: The person who was supposed to be briefed was the commander, not all of us.

CHAIRPERSON: Okay. I don't know whether the attack on the police station falls within the ambit of this application and if it does, to what extent any offence was committed there. We don't know. Nothing may have occurred there.

MR KOOPEDI: It is indeed so, Chairperson, that the three people who went into the police station went there not to kill, most probably only to make sure that there is no action on their part to protect the police station and it is also so that this applicant does not know what happened in there and it would then not be expected of this Committee to consider giving him amnesty for an attack on the police station. There is no application for that attack. Whatever that happened in that police station should not have been an attack on people. If people were attacked, this would have been most probably outside the instructions and they're not party thereto.

JUDGE MOTATA: No, but when this attack on the camp, the temporary structure, was it not an agreement in the unit that - so this portion of the unit goes to the police station? It's an agreement within the 17 that you immobilise the police? So once the others attacked the camp, those are immobilised.

MR KOOPEDI: I wouldn't say it was an agreement. The applicant was part of a group that was commanded by one Mr Malada. My understanding is that after - when they were on their way to Tonga, the underground reconnaissance information came back to say that there is also a police station. Then there was that order by the commander that we split, it wasn't like, you know, it's an agreement where we can say people should take some form of shared responsibility. The commander ordered these others to go to the police station and the applicant was part of a group that went to the camp and not the police station. It maybe arguable that the applicant may be guilty of a common purpose if any charges were to be brought against the three other comrades but I believe that for the purposes of this application, he is not applying for amnesty for anything that happened in that police station particularly because he does not think that anything happened, he didn't see anything happening to the police station, he did not even get a report that these things went out of hand and we had to shoot or kill a policeman in there.

ADV SIGODI: But did he not reconcile himself with the consequences of that which could happen at the police station?

MR KOOPEDI: I'm not sure I understand the question, particularly because my argument in this instance is that this applicant was commanded, was ordered to go to a particular place and carry out a particular mission. He was not ordered to go to the police station.

ADV SIGODI: In other words you are saying that it's only the senior commander or their commander who would be responsible for that decision of going to the police station?

MR KOOPEDI: Yes, if my understanding is that if we had all the participants and the commander as applicants, this applicant would only appear as an applicant on the one incident, then perhaps the commander would appear on the other incident together with the three other people.

CHAIRPERSON: Yes, thank you.

CHAIRPERSON: Mr Koopedi, is there anything else you want to add to your argument?

MR KOOPEDI: Chairperson, just something very briefly.

My submission, Chairperson, Honourable Committee Members, is that this a straightforward application. It's my further submission that this applicant has given full disclosure. It is noted that he cannot recall the date and the month of the incident but however, he has tried according to best of his memory to give you full disclosure.

It's my further submission that this applicant received no personal financial gain out of the operation and my final submission is that an attack on this unit, the soldiers, was an attack on what one could call a military target and was politically motivated and it is against those submissions that I will ask the Honourable Committee to grant this applicant amnesty in the lines we've been discussing about. Thank you Chairperson.

CHAIRPERSON: Ms Mtanga, is that the roll for today?

MS MTANGA: Yes Chairperson.

CHAIRPERSON: We will reserve the decision in this application and adjourn the hearings until tomorrow, nine thirty.