MS THABETHA: We are ready, Mr Chair.
JUDGE WILSON: We are now proceeding with the applications of William Opanjana Thoabala, application No 3844/96, Setheko Benjamin Cholota, application No 554/96 and Simon Phula Moalosi, application No 3998/96. The Committee is constituted as it has been throughout these hearings, Wilson, Ngoepe, De Jager. We will now proceed.
MS THABETHA: Thank you, Mr Chair. Mr Chair ...
JUDGE WILSON: I'm sorry, no, I think we should also - we haven't done it up to now, but I think it might assist those preparing the record if you two will both put yourself on record.
ADV TSHONGWENI: I am Mongesi Tshongweni, representing application number 1, Benjamin Deteko Cholota, applicant number 2, Simon Phule Moalosi and applicant number 3, William Opanjana Thoabala. Thank you, Mr Chairman.
JUDGE WILSON: Your numbering seems to be different from the numbering on what was put before us. Has it changed, the numbering? We have got on the notice last time, 1(a), William Opanjana Thoabala, (b) Cholata and (c) Moalosi.
MS THABETHA: The pages are wrong, Mr Chair.
JUDGE WILSON: Has that been written in the wrong order?
MS THABETHA: Yes.
JUDGE WILSON: You have put it in the wrong order?
MS THABETHA: Yes.
JUDGE WILSON: Will you give us the proper numbers again; Thoabala is number who?
MS THABETHA: Benjamin Cholota is number 1. Detego Benjamin Cholota is number 1.
JUDGE WILSON: Yes?
MS THABETHA: William Opanjana Thoabala is number 2.
ADV DE JAGER: But that is not even the sequence of the papers in our bundle.
JUDGE WILSON: The first one, these papers have been prepared and put before us. They were at the last hearing, the first application file is that of Thoabala. Now he is the second applicant.
MS THABETHA: Mr Chair, at that time when I prepared those papers I didn't know the sequence. Adv Tshongweni was going to take them leading evidence.
JUDGE WILSON: But that has nothing to do with the setting down of things. They were set down in a certain order, the documents were prepared in that order. Counsel is quite at liberty to lead his clients in a different order. He is not bound by that.
MS THABETHA: We stick to what is in your bundle then.
JUDGE WILSON: Right, carry on.
MS THABETHA: Mr Chair, at this present moment I will call on Adv Tshongweni to proceed with leading evidence.
ADV TSHONGWENI: Thank you, Mr Chairman, members of the Committee. With your permission, Mr Chairman, I beg to call Benjamin Deteko Cholota to give evidence.
MS THABETHA: For the convenience of members of the Committee, it is page 10 of the application.
BENJAMIN CHOLOTA: (Duly sworn, states).
EXAMINATION BY MR TSHONGWENI: Thank you, Mr Chairman. Before I continue, Mr Chairman, I would like to bring for purposes of record, I would like to bring to the attention of the Committee, that according to the applicant's application form, page 2 thereof, paragraph 9(a)(I), where it states that the applicant should stipulate the crime that he has been convicted of. The applicant mentioned three offences. One is murder, two terrorism, three arson. The applicant is applying in respect of attempted murder, not murder, terrorism and the third offence that has been deleted in the application form. This was a result of a mistake made when he was filling in the forms. Apparently one of the prisoners assisted him in filling in the forms, and they didn't understand what offences they should include.
ADV DE JAGER: So he is applying for attempted murder on Mr ...?
ADV TSHONGWENI: On Mr Plaatjies, whom I am going to refer to as the deceased.
ADV DE JAGER: And the date and the venue?
ADV TSHONGWENI: Thank you, Mr Commissioner, it is reflected as the 1st of May 1992.
ADV DE JAGER: At Parys?
ADV TSHONGWENI: That's correct.
JUDGE WILSON: Tamaholi, Parys?
ADV TSHONGWENI: That is correct, it is a township in Parys, Tamaholi.
JUDGE WILSON: Near the Black Joint Tavern.
ADV TSHONGWENI: That is correct, Mr Chairman.
JUDGE WILSON: It would perhaps save a few minutes. Do you propose to make a similar application in respect of Thoabala?
ADV TSHONGWENI: That is correct, Mr Chairman.
JUDGE WILSON: Very well, I think we can deal with them both at the same time. It appears, I don't want to give evidence on this, but it looks as if the two forms were filled in by the same person.
ADV TSHONGWENI: Yes.
JUDGE WILSON: The same mistake, so we will change both of them to be an application for amnesty in respect of the attempted murder of Mr Plaatjies on the 1st of May.
ADV TSHONGWENI: That is correct, Mr Chairman.
JUDGE WILSON: Very well, carry on.
ADV TSHONGWENI: Thank you, Mr Chairman. I will now proceed leading evidence in respect of applicant No 1, that is Cholota, Benjamin Dethego. Please state your full name and surname, please.
MR CHOLOTA: Benjamin, Dethego Cholota.
ADV TSHONGWENI: How old are you?
MR CHOLOTA: 35, Sir.
ADV TSHONGWENI: Where were you born?
MR CHOLOTA: Tamahole Township, Sir.
ADV TSHONGWENI: How long have you lived there?
MR CHOLOTA: From birth, Sir, up to this time.
ADV TSHONGWENI: Which schools did you attend?
MR CHOLOTA: I attended school at Silogeli Primary School. Then from there I went to Phealang Secondary School.
ADV TSHONGWENI: Were you at that time a member of any political organisation?
MR CHOLOTA: I was a member of the ANC, Sir.
ADV TSHONGWENI: When did you join the ANC?
MR CHOLOTA: I would say before I joined the ANC, I was a member of UDF in 1983. Then I joined the ANC in 1985. I was recruited by Bernard Molengwani. He is now deceased.
ADV TSHONGWENI: You are presently serving a seven-year sentence for the attempted murder of John Plaatjies, the deceased. Is that correct?
MR CHOLOTA: That's true, Sir.
ADV TSHONGWENI: In your own words, could you tell the Committee how it came that you were involved in the attempted killing of the deceased?
MR CHOLOTA: Firstly, it was because of that the deceased was a member - was a gang formed by the Police. So that that gang should be against the ANC. What happened, is that I was forced that as I was a member of the ANC, we formed a defence unit, because this gang was terrorising the community. The name of the gang was Noxies Gang. And again the other name was Bad Boys. We tried in many occasions as comrades to negotiate with the Police, that they should try to discourage this gang to continue with their activities. Then the Police didn't listen to the comrades.
Therefore, myself, Benjamin Cholota, I formed a defence unit which will protect the community. The day before May, the 1st of May, we went searching. We did that search because of the call made by Chris Hani. That call was about disarming the enemy. So in my situation I regarded the Police to be the enemy, which was against the community of Tamahole. I led the unit on the 1st of May on a search, so that wherever we meet the Police, we are going to disarm them. Any member of the Police we will disarm them, and again also the members of the Bad Boys or the Noxies Gang. On that day we left from Section B at Mr Skosana. We targeted places like the taverns, because Tamohole was still a small township then.
In many instances when we were looking for targets, we would find them at the taverns, because there were no other recreational places. We left from Mr Skosana's house to go to a certain tavern called Radetsietsi(?) at B. When we arrived at Radetsietsi(?), we found other members of the defence unit working for us there, saying the Police are - the gangs are inside, and the Police. From there we left from Radetsietsi(?) to BJ. Where this incident happened. Where Mr Dinge died.
When we arrived at BJ I left those I was with behind. The members of the UDF of the defence unit who accompanied me, were eight to nine. Together with William Thoabala. When William Thoabala had just arrived from exile then. He was welcomed by many people when we arrived. Then I thought they will disturb our plan. Then I said to Thoabala he must stay behind, I will go inside and look what is happening inside. Entering inside, I met face to face with Plaatjies. Then I told myself that we have now met our target. I went to Plaatjies. I told him that comrades were waiting for him outside, they want to talk to him. He said to me he has nothing to say or he has nothing to do with the comrades. Then I hit him with a clap. From there the people who were with him, hit me with a bottle on the head. Then I went outside bleeding.
I met other comrades together with William Thoabala. Thoabala came to me, asked me what happened, because he saw me bleeding. Then I thought I will take time in explaining what happened. Then I went back to the tavern and said I should take him out so that how can we finish him off?
When I was just about to enter through the door, Phule Moalosi - Phule Moalosi was working at prison, he was a prison warder. He appeared when I was just about to enter. Then somebody shouted, saying here is a target. I held Phule with his shirt, knowing that he was one of the Police, because we were looking for guns. It may happen that he had a gun at that time. We together fell on the ground, because he was fighting. Whilst on the ground I heard a noise. That noise was showing that something was going to happen, because both of us we were on the ground.
That is then my younger brother was able to prevent the bottle which was going to hit me. When he blocked that bottle, I stood up and faced him. I end up seeing Thoabala and Moalosi standing up. We fought each other with fists, with the deceased at that time. We were fighting then. Then after that we were throwing each other with stones.
I took a brick and hit the deceased. He fell on the ground. Whilst he was on the ground, William Thoabala arrived. Then he said we should leave.
Then we left to Mrs Moloi's house where they washed my head. Whilst we were there then we asked each other where were the members of the defence unit. Nobody knew then. It was myself, my younger brother Fanie and William Thoabala. When we left at Mrs Moloi's house - we arrived at the morning in Mrs Moloi's house, around one o'clock. Mamma Moloi denied that we should leave the house, because she thought we are going to fight again. She kept us in the house up to nine o'clock. Then at nine o'clock I went to my home.
Then at home we heard that the police were looking for us. Then I said the police are looking for us about what? Then they said they are looking for us because of the death of Plaatjies. We were surprised. My father informed me that Lindi has been shot, and he has died at the shebeen. We were surprised after learning about the shooting, but I knew that I fought with Plaatjies, but nobody used a gun. Which means the gun was used after we left the scene. That is my evidence, Sir.
ADV TSHONGWENI: Mr Cholota, the full disclosure that you are making today, why didn't you make in the court of law?
MR CHOLOTA: I was not able to make this full disclosure, because it was known with the police that myself and William Thoabala were comrades. I would say it was known that William was just arrived from exile. We were arrested many times together with William, though we were not found guilty in those cases. We thought that if I would say as I say now, for the fact that I was a comrade, I would find a heavy sentence, heavier than the one I have.
ADV TSHONGWENI: Mr Thoabala, why do you consider your act as politically motivated?
MR CHOLOTA: It is politically motivated because when I went out as a member of the self-defence unit, I wasn't doing that for my own benefit, I was doing it for the benefit of the community.
ADV TSHONGWENI: Thank you, Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY ADV TSHONGWENI
JUDGE NGOEPE: Mr Mongesi, I assume that since you are appearing for Mr Moalosi as well, I assume that you have satisfied yourself that there isn't going to be a conflict of interest, in particular around what happened at the scene, the initial scene at the tavern, et cetera, et cetera?
ADV TSHONGWENI: Thank you. According to my instructions and consultations, I did not detect any conflict.
JUDGE NGOEPE: You didn't detect a conflict at any level. I specifically referred to the scene around the tavern and so on, but you didn't detect any conflict at any level?
ADV TSHONGWENI: That is correct.
JUDGE WILSON: Any questions?
CROSS-EXAMINATION BY MS THABETHA: Yes, Mr Chair, two questions. Mr Cholota, why was the deceased your target?
MR CHOLOTA: The deceased was our target because it appeared that he once killed a comrade, called Papi Qwaka, who was a teacher at Selegeli School. And the deceased was in cahoots with the gangs that I have just referred to.
JUDGE WILSON: Could you give us the names of the person he killed again, please?
MR CHOLOTA: Papi Joseph Qwaka - it is Q-W-A-K-A.
MS THABETHA: Was the deceased convicted of the murder of Papi Joseph Qwaka or its information that you had that you killed him?
MR CHOLOTA: I won't confirm his conviction because I heard this at the ANC office and Vuyo Ndabe was the person telling me this, he was the secretary for the TCR. Because I was not around to Mamole, most of the time I spent in Johannesburg and I normally went to report to the office and this is one of the reports I received on my arrival.
MS THABETHA: When you beat the deceased, what was your intention?
MR CHOLOTA: The intention was to demonstrate if there were any other people who were like him, who were going to harass people like - just like his gang did. Such people were supposed to see that they are not supposed to do that at all.
MS THABETHA: Thank you, no further questions.
NO FURTHER QUESTIONS BY MS THABETHA
JUDGE WILSON: Mr Cholota, you said in answer to your counsel, that you didn't raise this question at the Court, because you thought if you said you were a comrade you would get a heavier sentence. If you remember telling us that.
MR CHOLOTA: I remember.
JUDGE WILSON: But it was raised at the trial before your sentence that you were working with the ANC, wasn't it?
MR CHOLOTA: That I was working with the ANC? Yes, it appeared in the trial.
JUDGE WILSON: Yes, so there was no question of concealing the fact. So why did you say you couldn't tell the Court that you were doing this as a comrade because you would get a heavier sentence, when the Court was told you were one?
MR CHOLOTA: The Court knew already that I was working with the ANC, but I didn't want the Court to consider this matter as a political matter, because it took place at the Tavern. I capitalised on the issues that happened at the Tavern and I thought they would just take it as an offence not politically motivated.
ADV DE JAGER: You said he killed a comrade previously.
MR CHOLOTA: That's correct.
ADV DE JAGER: And was that the reason why you said you assaulted him?
MR CHOLOTA: That is the reason.
ADV DE JAGER: So wasn't it a matter of taking revenge because he killed a comrade?
MR CHOLOTA: No, it wasn't a revenge as such. We were actually showing his gang that we were against their actions.
ADV DE JAGER: Who was the leader of this gang?
MR CHOLOTA: The leader was known as Noxie Sekete.
ADV DE JAGER: How do you know that Plaatjies was a member of the gang?
MR CHOLOTA: I was given a report at the ANC offices.
ADV DE JAGER: Did they give you the names of all the gang members?
MR CHOLOTA: I have three names with me and I don't have other members.
ADV DE JAGER: I assume it was Noxie and then this one and the other one?
MR CHOLOTA: The other one is Tsietse.
ADV DE JAGER: Did you do anything to Tsietse?
MR CHOLOTA: We have never done anything to Tsietse. There was nothing really happening to him.
ADV DE JAGER: But wasn't your instructions to act against him too?
MR CHOLOTA: No, such an instruction was not taken out, but I gave an instruction that wherever they are seen they should be assaulted.
JUDGE NGOEPE: This looks more like a private fight between individuals. You fight with fists, you throw one another onto the ground and the only people in the end involved, seemed to have been your brother, and Mr Thaobala.
MR CHOLOTA: The fight was not between myself and him only. At the time I was fighting him, it was discovered that people were chased at the Tavern and Thaobala was also involved in fighting, and my brother too, my younger brother was also involved in that fighting. I can't say it was a fight between just two people. It was a fight between a group of people.
JUDGE NGOEPE: Who chased the other people away, the other comrades away?
MR CHOLOTA: William Thaobala chased Phulu Maolosi, Fanie and them chased Jack Maolosi's younger brother, and Cholota was fighting another group nearby.
JUDGE NGOEPE: What sort of group was that?
MR CHOLOTA: It was discovered that it was the younger brother to Phule Maolosi and his friends and I don't know their names. And those people who were together with the deceased.
JUDGE NGOEPE: Thank you.
ADV DE JAGER: And these other people were they gang members or weren't they gang members? Were they ordinary members of the public visiting the Tavern?
MR CHOLOTA: Simon Malusi was one of our targets. Lucky was a member of the gang and the rest were their friends.
ADV DE JAGER: But they weren't gang members?
MR CHOLOTA: No, they were not members of the gang.
ADV DE JAGER: So this turned out to be a brawl in the long end and it wasn't anything political?
MR CHOLOTA: No, that is not the situation. I think these people were also retaliating, that is why we were engaged in a fight.
JUDGE WILSON: Am I correct in saying you went in to the Tavern for the second time and got involved in a fight with Maolosi.
MR CHOLOTA: I fought with Maolosi on my second return.
JUDGE WILSON: And when that fight got broken up you then stood up and got fighting with the deceased.
MR CHOLOTA: The deceased came in when I was on the ground fighting with Maolosi and he came in.
JUDGE WILSON: Now Maolosi was not a policeman, was he?
MR CHOLOTA: He was a prison warder.
JUDGE WILSON: Yes, and they are not usually armed, are they?
MR CHOLOTA: I once saw Maolosi with a firearm.
JUDGE WILSON: Are prison warders usually armed?
MR CHOLOTA: I don't think all of them are always armed, but I think those who want to have arms they get arms.
JUDGE WILSON: So Maolosi was a special target picked by you?
MR CHOLOTA: That's correct.
JUDGE WILSON: And you say while you were fighting him, the deceased came in.
MR CHOLOTA: When we were battling on the ground, the deceased came in and he had a bottle in his hand, he was going to hit me with this bottle.
JUDGE WILSON: What do you mean he came in? Do you mean he intervened in the fight or he came into the Tavern?
MR CHOLOTA: He came in the fight, he was involved in the fight.
JUDGE WILSON: He didn't come into the Tavern, when you say he came in, you don't mean he came into the Tavern, he was there already. Is that the position?
MR CHOLOTA: That's correct.
JUDGE WILSON: And then you got into a fight with him.
MR CHOLOTA: That's correct.
JUDGE WILSON: And he was hit with stones?
MR CHOLOTA: He was hitting me with stones and I was hitting him with stones.
JUDGE WILSON: Yes, and the Court found that when he was lying helpless on the ground you were hitting him with stones, didn't it?
MR CHOLOTA: No, I hit him with a stone and he fell and William approached, he took me with, we left.
JUDGE WILSON: You see, I read from the judgment - you say the Court didn't find this, but what the Judge said was, it is in Afrikaans
"The fact that the deceased didn't die as a result of the attack on him with bricks, whilst he was lying helplessly on the ground, it was not as a result of any action on the part of those people. The possibility shows unequivocally to that they stopped with their bombarding of him, because they were of the opinion that the deceased at that stage, was, already for all practical purposes, dead."
Do you remember the Judge telling you that?
MR CHOLOTA: No, what I remember is we hit each other with stones until I hit him and he fell. What happened thereafter I do not know.
JUDGE WILSON: Are you saying you don't remember this being said in court when you were sentenced?
MR CHOLOTA: I remember this was said in court.
JUDGE WILSON: Yes. And was Maolosi hit with stones?
MR CHOLOTA: I won't say he was hit with stones because I never followed him, I was left behind.
JUDGE WILSON: Was it Thoabala, your co-applicant who followed him and ran after him?
MR CHOLOTA: That's correct.
JUDGE WILSON: And did he flee from the Tavern?
MR CHOLOTA: That was what I was told.
JUDGE WILSON: Thank you. Any further questions?
RE-EXAMINATION BY ADV THSONGWENI: Mr Cholota, how many members of the SDU were with you at that time?
MR CHOLOTA: We were about eight or nine in number.
ADV TSHONGWENI: At the time of the fight, what were the other members of the SDU doing?
MR CHOLOTA: As I was fighting everybody else was fighting. I was fighting with Plaatjies on the other hand, Fanie was fighting his group, Simon Cholota was fighting with the other group and William was chasing Maolosi.
ADV TSHONGWENI: When you say everybody was fighting at that time, do you mean every member of SDU that were with you, were fighting?
MR CHOLOTA: That is what I mean.
ADV TSHONGWENI: Mr Cholota, at that time why were you not carrying guns, when you knew that these people might be armed with dangerous weapons?
MR CHOLOTA: We didn't have guns, because we knew that we were going to attack, we never expected them to attack us.
ADV TSHONGWENI: Thank you.
JUDGE WILSON: You knew you were going to attack policemen whom you expected to have guns, because the purpose of attacking them was to disarm them and you didn't think they would retaliate?
MR CHOLOTA: That's correct.
ADV TSHONGWENI: Thank you, M'Lord, I have no further questions.
NO FURTHER QUESTIONS BY MR TSHONGWENI
ADV DE JAGER: What weapons did you carry?
MR CHOLOTA: We were not armed, we didn't have weapons. I would say that because we knew that we were going to attack and we never thought that the enemy would know that we were going to attack. That is why we didn't arm ourselves.
JUDGE WILSON: But if you attack a man with your bare hands and he is armed with a gun, don't you think he will produce a gun and defend himself?
MR CHOLOTA: That was a possibility but we never thought of that, at that stage.
JUDGE WILSON: Are you seriously saying that?
MR CHOLOTA: I am serious.
ADV TSHONGWENI: No further questions, M'Lord.
NO FURTHER QUESTIONS BY MR TSHONGWENI
