TRUTH AND RECONCILIATION COMMISSION

BOBBY TSALA 1ST APPLICANT

The applicants have applied for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 35 of 1995, as amended, with respect to the killing of one Christoffel Le Roux.

Le Roux was the owner of the Hunters Retreat Service Station. The Applicants appropriated money, a firearm, a motor-vehicle, and other items. This incident took place on the 2nd February, 1992, at Port Elizabeth. The Applicants were convicted of murder, robbery, and for the possession of unlicensed firearms and ammunition in 1993.

The applicants' evidence was that they were Apla operatives. They joined Apla in 1991, and were trained at Dar-Es-Salaam House, owned by Mnikelo Knox Tsotsobe, in New Brighton, Port Elizabeth. Their military training consisted of technical firing with various firearms which they received from one Thembinkosi Elvis Msizi who was their Regional Commander. The political education lectures were delivered by M K Tsotsobe.

Applicants explained that the operation was part of the policy of the organizations' "Operation Great Storm" which had been declared at the end of 1991 or early in 1992. Their unit consisted of Makhaya Tose, Bhunga Msizi, and themselves. They have not been able to trace Tose or Bhunga Msizi. Thembinkosi Msizi, the person who gave them their instructions, and who was their direct superior, died in 1996.

This was the first Apla operation either Applicant had been involved in and had not previously been involved in any politically motivated offence. Tsala was the unit commander. Applicants say the purpose of the operation was to raise funds for Apla and the instruction by T E Msizi was that the operatives should bring back all the money, guns and ammunition found on the premises. Applicants' testimony was to the effect that they were told not to kill anyone (unless) if it was not necessary.

In his affidavit, Exhibit "B", Tsala stated that they had been advised two weeks previously that they were to carry out an operation at Hunters Retreat garage. However, in his oral evidence before the Committee, he stated that the unit members were informed of the operation (not the target) a week before. The actual target was only indicated to the unit the night before the operation. His evidence was that the entire unit was present. T E Msizi gave the orders. They were to report to M K Tsotsobe after the operation.

Siyo's evidence was that he was only told by Tsala on Sunday morning, the 2nd February, that he would be required to "go to do some work". He further stated that he was not involved in the planning of the operation before that. He was told that his specific task was to collect the money and firearms found on the premises. Siyo's evidence is thus that he certainly knew nothing of the operation until Sunday morning.

Tsala and Tose were armed with firearms. T E Msizi dropped them near Hunters Retreat, and as arranged, went to wait for them at the nearby Greenbushes Hotel where the unit was to meet him after the operation. They saw Le Roux arrive, and whilst Bhunga Msizi stood guard outside, Tsala, Tose and Siyo went into the office.

After an exchange of words, Le Rous was forced to lie down. The petrol attendants who had all along been outside were forcibly brought into the office. Tsala pointed a firearm at them. One of the attendants, an old man, was assaulted by Siyo. The Applicants told the attendants that they wanted money. Siyo's explanation for the assault was that he wanted to show them the seriousness of the matter and wanted them to be afraid.

Inside the office, the attendants were forced to lie on the floor. Siyo went into the inner office to open the safe. Le Roux got up and hit Tose with a chair, who fired a warning shot. Le Roux ran into the inner office, where he was shot by Tsala whose intention at the time was to fire a warning shot. When they left, Le Roux was lying on the floor, injured. Tsala only found out the following day that Le Roux had died.

The four then drove to the Greenbushes Hotel in Le Roux's Sentra motor-vehicle. There they signalled to T E Msizi to follow them to Zwide. At Zwide they abandoned the Sentra motor-vehicle. They gave T E Msizi a report of what happened. He said that they should report to M K Tsotsobe the following day. This they did. Tsose specifically stated that he and T E Msizi gave the report to M K Tsotsobe who said that as the unit commander, it was right for Tsose to have killed Le Roux if at that point, Le Roux was uncontrollable and trying to retaliate. Tsose further stated that the R38000 and firearms they took were given to T E Msizi who said that he would be taking these to the Transkei. The cheque and credit card receipts that had been taken were burnt. Le Roux's jacket, which had been found in the Sentra, was kept by Tsala.

There is no reason to doubt that the Applicants were members or supporters of the PAN AFRICANIST CONGRESS. The question of the Applicants membership of this organization's military wing, Apla, and the related issues of political motive and political objective, along with that of full disclosure of the material facts relevant to this application, are matters that can only be properly assessed by looking at the evidence (or lack thereof) presented to the Committee by the Applicants.

In his application form, noted as Exhibit "A" Tsala merely mentions Siyo and himself as the operatives who were involved in this incident. It is only in his affidavit, Exhibit "B", that he mentions that they were part of a unit of four operatives, under the command of the Regional Commander of Zwide, T E Msizi. T E Msizi is deceased; B Msizi and M Tose could not be traced to give collaborative evidence.

There are numerous inconsistencies and improbabilities in the evidence presented by the applicants. Most importantly, the two officials whom Applicants rely on in corroboration of their status as operatives tasked to execute this mission, are unable to be of much assistance. M K Tsotsobe is only able to confirm that the Applicants were bona fide members of the PAC, and that they attended the political education classes that he lectured. He categorically states in his affidavit that he has no personal knowledge of the money appropriated from Hunters Retreat as he was not involved in Apla.

This is in direct conflict with the testimony of Tsala, who stated that he was present when the report on the operation was given to M K Tsotsobe. This evidence relating to the attendance of political lectures must also be assessed within the context of the evidence concerning Dar-Es-Salaam House and the fact that the environment in and around the premises allowed many to participate in the social activities and milieu of the place. This evidence militates against these premises being of the type where Apla cadres would be conducting any form of military training. Again, M K Tsotsobe, the owner of the premises, and himself a well known PAC leader in the area, denies any involvement in Apla activities.

A related issue is that of the political objective of the Applicants. In various Amnesty hearings where Apla operatives have been involved, evidence has been led of the structured and disciplined manner in which Apla operatives executed their mandates. They knew, understood, and acted within the specific policies of Apla as a military structure.

The evidence of the Applicants does not at all suggest that they were members of Apla. Tsala was rather vague about the matter of surveilling the target to establish particular patterns. His evidence was that he and T E Msizi surveilled the target. He does not suggest that he was involved in any other aspects of the planning of the operation. This appears to have been done by T E Msizi. In fact, Tsala's testimony before the Committee was that they were only informed of the operation a week before it took place. This in itself puts into question the matter of the surveillance of the target.

As the unit commander, Tsala would have been involved in deciding on who was to go on the operation, depending on their specialized skills. So, for instance, Tose was known to be a karate expert. One of his functions appears to have been that of subduing Le Roux. Tsala needed to have been involved in choosing this karate expert for this specific task. Tsala's evidence, however, does not suggest that he was involved in the strategic planning of the operation, yet he was in command, and he knew when to call upon Tose to use his skill to subdue Le Roux.

Further, T E Msizi, the Regional Commander, and presumably the only one of the five with any experience of operations, was not directly involved in the execution of the mission. Instead, his participation on the 2nd February can aptly be categorized as the most minimal - that of driving the operatives to the target, and waiting for them at the Greenbushes Hotel. Even at the point where the unit meets him at the Greenbushes Hotel, they simply signal to him to follow them. It is only at Zwide that T E Msizi once again becomes an active participant in the operation. Even this participation appears to be limited to receiving a report, and the money appropriated during the operation.

To compound the issue, the man who was left outside to keep a look-out on behalf of the group, was not armed. Yet evidence was led that police lived in flats that were at the service station. In fact, whilst the operation was in progress, a policeman did drive in to purchase petrol.

Applicants treated the petrol attendants very shabbily during the operation. Not once did they mention that they were Apla operatives, there to repossess money for the benefit of the organization. Instead, their statement to the attendants was that they wanted money. When asked, under cross examination, whether he was conversant with Apla's "Fifteen points of Attention", one of the basic documents of the organization, which sets out the manner in which operatives should conduct themselves whilst on operations, Siyo could not recall one of the fifteen points in that document. One of the attendants was assaulted. This was contrary to point 10 of that document, which reads "do not ill-treat people".

Applicants knowledge of the announcement by Sabelo Phama of the "Year of the Great Storm" is inaccurate. This announcement was made in April 1993. The Hunters Retreat incident occurred on the 2nd February 1992, a year earlier. Again, this puts into question the Applicants membership of Apla, and their knowledge and understanding of its policies.

Another factor to consider in assessing the evidence of the Applicants is the fact that both have lengthy criminal records for crimes of dishonesty and self-enrichment.

Their explanation is that when they joined Apla in 1991, they had decided to turn a new leaf, and forsake their life of crime. They, however, were not able to explain whether their commanders knew of their criminal records, yet nevertheless reconciled themselves with the possibility that they might be putting the organization at great risk by accepting the Applicants and sending them on a mission of this nature.

This Committee is satisfied that the Applicants were members or supporters of the PAC. In assessing the nature of the evidence presented by the Applicants, the Committee is, however, not satisfied that the Applicants were members of Apla, let alone members of an Apla repossession unit as alleged by the Applicants.

The manner in which the target was selected, the execution of the operation, the conduct of the operatives, and the fact that they have not been able to furnish any corroboration of both the instruction to act of the filing of a report and handling over of the proceeds, indicate that there was no nexus between the actions of the Applicants and the military wing of the PAC.

An opportunity was granted to the Applicants to call witnesses. This came to naught. The Committee, in the interests of justice and fairness, requested Mnikelo Knox Tsotsobe to assist in whatever manner he could. The best he could do was confirm that the Applicants were bona fide members of the PAC. He was unable to link the Applicants to Apla, let alone to an Apla repossession unit that furnished him with a report.

Political motive has not been established. With regard to full disclosure, the Committee is of the view that much has been left unsaid, unexplained.

For these reasons, the Applicants do not qualify for amnesty. Amnesty is DENIED therefore in respect of :

JUDGE B NGOEPE

ADV L GCABASHE