Amnesty Hearings

CHAIRPERSON: Yes. You may proceed with your next applicant.

ADV LOURENS: I call then Madoda Tisana.

MS KHAMPEPE: Mr Tisana, please stand up. Give us your full names.

MR TISANA: Madoda Stanford Tisana.

MADODA STANFORD TISANA: (Duly sworn in, states).

MS KHAMPEPE: Thank you. You have been properly sworn in.

EXAMINATION BY ADVOCATE LOURENS: Mr Tisana, could you say how old you are please, for the record?

MR TISANA: I am 29 years old.

ADV LOURENS: Where were you born?

MR TISANA: In Mbekweni.

ADV LOURENS: And did you, have you lived there your whole life?

MR TISANA: Yes, I lived there all my life.

ADV LOURENS: Did you go to school?

MR TISANA: Yes.

ADV LOURENS: Till what standard were you in school?

MR TISANA: Standard five.

ADV LOURENS: Have you ever trained to do any kind of job?

MR TISANA: Besides on the school holidays?

ADV LOURENS: Yes.

MR TISANA: I would get a job on the school holidays.

ADV LOURENS: And when you finished at school did you carry on working?

MR TISANA: No, I would go during the school holidays only. I never worked again except for the school holidays.

ADV LOURENS: Now, were you a member of a political organisation in 1985?

MR TISANA: Yes.

ADV LOURENS: Could you say which political organisation that was?

MR TISANA: I was a member of UDF.

ADV LOURENS: Now, were you a member of PAYCO?

MR TISANA: I was a member of the United Democratic Front, UDF.

ADV LOURENS: Were you a member, not a member, are you saying then that you were not a member of PAYCO?

MR TISANA: I was a member of UDF.

ADV LOURENS: Were you an office bearer in the UDF?

MR TISANA: No, I was just a member.

ADV LOURENS: Now, you heard the evidence of your other two applicants about the conditions in Mbekweni in the 80's, up to 1985. Do you agree with that evidence?

MR TISANA: Yes, I do.

ADV LOURENS: Now, on the 15th of April 1985 were you with these other two applicants?

MR TISANA: Yes.

ADV LOURENS: Could you explain to the Committee what took place on that day, how it is that you came to meet with them and then what happened after that.

MR TISANA: Under the situation in Mbekweni in the township in 1985 there were AZAPO and SADF. We were not happy with the SADF and the police in the community. We then decided to find weapons so that we can protect ourselves and protect the community. While we were still discussing this, Nelson Sono came with the information of this farm. We decided to go to that farm to look for weapons. I found Max and we explained to him about the report concerning the weapons.

ADV LOURENS: Can I just stop you there. When you talk about Max are you talking about Philemon Maxam?

MR TISANA: Yes.

ADV LOURENS: Please carry on.

MR TISANA: We then went to that farm as my, as the two applicants have explained. We met the owner of the farm asking for a job. He said that he did not have anything to offer and we went inside as Max has already explained.

ADV LOURENS: Before you proceed ...

JUDGE WILSON: Before you go on, can I ask a question which has worried me with the other two witnesses. Did the owner of the farm see you going inside to his farm building?

MR TISANA: Yes, because we met him at the gate. He was driving a car and we went in the farm.

JUDGE WILSON: Did the farmer drive away from the gate?

MR TISANA: Yes, he did.

CHAIRPERSON: Yes, carry on.

MR TISANA: We went inside the yard where Maxam asked water to the woman. When this woman was giving Maxam water I grabbed this woman and she screamed and I was trying to explain to her what we were doing there. After that there was a gunshot. We went inside the house.

ADV LOURENS: What did you do when you got inside the house?

MR TISANA: When we got inside the house we searched the house. I took an agent case and a jewellery box. We then ran in different directions. I heard about the shooting of the gardener while I was in prison, because I was dizzy at the time. This happened unexpectedly. We did not expect people to be shot, but it just happened.

ADV LOURENS: Did you have a firearm with you that day?

MR TISANA: No, I did not.

ADV LOURENS: Sorry, just to go back a little bit. What do you, what can you tell the Committee about your knowledge of the Tambo text that Maxam referred to in his evidence?

MR TISANA: The Tambo document, we got it from Maxam. It was explaining the situation in the township during 1985 and 1986. It was explaining how we can get weapons so that we can defend and protect the community at the time of oppression. We had a right, according to this document, to go to a white, to the white peoples' home to break in and get weapons, but not to kill.

ADV LOURENS: Yes, you speak about groups of protection in your statement. What, in the township itself - could you explain to the Committee what this group, protection group would be, what its aim would be?

MR TISANA: Group of protection. Can you please explain this?

ADV LOURENS: You said in your statement on page 29,

"We were put in groups of protection".

CHAIRPERSON: Let him have a, I think it fair, let him have a look at that statement, please. Let him see it so that he knows what you are talking about.

ADV LOURENS: On page 29.

MR TISANA: On page 29?

ADV LOURENS: Yes, in 10(b).

MR TISANA: 10(b).

CHAIRPERSON: Let him understand that that is a translation of what (indistinct).

ADV LOURENS: That is the translation of what was written in the Xhosa. Otherwise you can look at 10(b) on page 25 where it is written in Xhosa.

MR TISANA: 10(b).

ADV LOURENS: Could you explain to the Committee what a protection group is, that is referred to there?

MR TISANA: It was UDF, PAYCO and the ANC, because we were working together. We were against AZAPO and SADF together with South African Police.

ADV LOURENS: And it, is it these groups that needed weapons?

MR TISANA: Yes, we as UDF and PAYCO members, we were looking for weapons.

ADV LOURENS: Now, just before I carry on, there seemed to have been about six to eight people going to Vlakkeland on the 15th of April 1986 including the three of you. Is that correct?

MR TISANA: Yes, that is correct.

ADV LOURENS: Had you people, these persons going to Vlakkeland, had they ever done anything in a group like this before or the same people in a group before?

MR TISANA: Not all of us. Some of us in that group were together in certain actions.

ADV LOURENS: But you had not worked together regularly as a group, as this particular group?

MR TISANA: Apart from Maxam, the others were working with us. It was the first time Maxam was together with us.

ADV LOURENS: Now, you heard Mr Ndinisa talk about the items that were stolen from the farmhouse, from Vlakkeland. Was his evidence in that regard correct, that what you took, the jewellery case and a briefcase?

MR TISANA: Yes, that is correct.

ADV LOURENS: Now, could you explain to the Committee what, in your own words, what you did with that stuff that you took and why you took it?

MR TISANA: As I was searching the house I did not find any weapon, as we were looking for weapons, but I just decided that if I can take this, the jewellery I can be able to exchange the jewellery for weapons. I then took an agent case and the jewellery box, but while we were running away I left the agent case behind. I took a jewellery box with me and the money.

ADV LOURENS: Is it correct that you were in control of the money?

MR TISANA: Yes, that is correct.

ADV LOURENS: And how much was the amount of money? Do you remember? Was it about R2 000,00, is that correct?

MR TISANA: Yes, that is correct.

ADV LOURENS: And can you in your own words then explain what, Mr Ndinisa said that you were in charge of the money. What, how did you use the money for the others? Could you explain to the Committee?

MR TISANA: We would use the money when we would camp with other Comrades in KTC, Wocester. We would buy food as Comrades in these different places in the Western Cape and we would use the money for transport.

ADV LOURENS: Do you know of any, you know of the other things that were stolen such as the clothing and the video recorder? Do you know what happened with that or if anybody else in your group took those things?

MR TISANA: No, because the way we were searching the house we were doing everything apart. At the time we were running away we ran into different directions. I told my colleagues that I left an agent case behind, but I have a jewellery box with me plus the R2 000,00. At the same time we then went to Cape Town and we came back the following day. I did not meet Philemon Maxam. I met him while he was arrested.

CHAIRPERSON: Can you just clear it up. What is this case that he is talking about, an agent case? What is that?

ADV LOURENS: Mr Chairman, it has been referred to in the evidence either as a briefcase or an agents case. I think it is just a briefcase, a sort of satchel that a businessman would use.

CHAIRPERSON: Thank you.

ADV LOURENS: It is referred to by the interpreters as an agents case at some stage. Now, when the gardener was shot were you anywhere nearby? Where were you at that time and, or perhaps you could say if you were even aware at the time that the gardener was being shot. Where were you at that stage?

MR TISANA: When the gardener was shot we already ran away. I only saw when the domestic worker was shot. I heard about that shooting of the gardener after it happened. I did not see it.

ADV LOURENS: Now, at the time that the domestic worker, Mrs Foster, at the time she was shot how, were you nearby, were you with Mr Maxam, were you inside the house, were you outside the house? Could you just briefly explain to the Committee?

MR TISANA: At the time when the domestic worker was shot I was together with Mr Maxam outside. I grabbed the victim before she was shot, so I was nearby.

ADV LOURENS: Now what is, what was your attitude to the shooting?

MR TISANA: At the time of the shooting, on this day I became unconscious, because I did not expect that people would be shot. It was not our aim and we did not want anybody to be killed. We just wanted to get weapons so that we can defend ourselves and protect ourselves from what was happening in the township, but it happened that people were shot. I cannot remember everything that happened that day, because I was dizzy as I did not expect it to happen.

MS KHAMPEPE: But then Mr Ndinisa, Tisana, you had not observed the shooting of the gardener. That is your evidence. You only heard about this after it had happened.

MR TISANA: Yes, that is my evidence about the gardener. I did not see him being shot. The person I saw being shot was the domestic worker.

ADV LOURENS: Can I just ask you where you, are you saying when you say that you were dizzy or unconscious, because perhaps it is not the most accurate word, that you were taken by surprise, taken by surprise when that happened. You were not expecting it to happen.

MR TISANA: Yes, that is correct ...

ADV LOURENS: Now, ...

MR TISANA: ... because I was nearby when this woman was shot.

ADV LOURENS: Now, I just want to ...

JUDGE WILSON: Shocked would perhaps be a more ...

ADV LOURENS: Shocked.

ADV LOURENS: ... accurate reflection of what he is trying to tell us, I think.

ADV LOURENS: Yes Judge, I would agree with you. Now, Mr Tisana it is so that during the struggle many raids were made on farmhouses and not only farmhouses to steal weapons and so on. In your knowledge or to your knowledge if weapons are there are they also the only thing that would be taken or would it be appropriate to take other things, as you people did as well, to take money or something that can be converted into ammunition?

MR TISANA: What we planned was that anything we could find, anything that we can sell can be taken so that we can get weapons to defend ourselves, but our main aim, we were looking for weapons, but we did not find them.

MS KHAMPEPE: Mr Tisana, is that what you understand as the Tambo text to mean, to authorise you to steal anything of value which can be exchanged for money in order to buy the necessary guns that you needed?

MR TISANA: Yes, that is how I understood the Tambo text document.

ADV LOURENS: Thank you Mr Chairman. I do not have any further questions for Mr Tisana.

NO FURTHER QUESTIONS BY ADVOCATE LOURENS

CHAIRPERSON: Mr Steyn, Swart, sorry.

CROSS-EXAMINATION BY MR SWART: Thank you Mr Chairman. You said in your evidence earlier when you speaking about the Tambo text that the text authorised you to go and take weapons, but not to kill. Is that correct?

MR TISANA: Yes, that is correct, because nothing was written down that we have to kill people. This incident happened while we did not expect it.

MR SWART: So is it your evidence that the way these circumstances occurred, the events occurred that that was actually something which was not authorised in the text, your order was not to kill?

ADVOCATE LOURENS OBJECTS: Mr Chairman, if I might just interrupt here. I do not think that was the import of the evidence that the instructions from the Tambo text were to kill. I think the evidence was clear that it was unaccepted when it happened and their aim in going there was to, in fact, get firearms, but perhaps it is a matter for argument.

CHAIRPERSON: Well now, none of us have a copy of the Tambo text. Loose language has been used to describe what it may have contained.

ADV LOURENS: Mr Chairman, I do have a copy. I cannot swear though that this is the Tambo text. It merely says in the article that I have, it is a well distributed speech within South Africa made by Oliver Tambo, which in fact I was going to refer to in my argument. So perhaps then we can leave it till.

MR SWART: Well, my question is, in any event, did you think that these events were beyond what you understand the text to say, because you said that you thought the text said that you should not kill, you should take weapons?

MR TISANA: The way this happened we did not plan to kill people and the Tambo text document does not stipulate that people are to be killed. As Max has already said he shot at these people so that they cannot identify us to the police.

MR SWART: Did you feel that anything else should be done to these people besides not killing them? Did you want to incapacitate them or stop them in some other way?

MR TISANA: The killing of these people just happened. We did not plan to kill them, it just happened. Nobody planned it.

MR SWART: Perhaps I can ask you to look at page 29 of the papers and then line small roman four. That is the translation of your application and that says,

"People of the farm died because of the shooting. I wanted them to be shocked so that they would not give, so they would not have any evidence".

I do not understand that sentence. What did you intend should be done to these people?

MR TISANA: When we went to the farm we did not intend on killing people. We just wanted weapons. It just happened, the shooting just happened. When the woman screamed, as I was grabbing her trying to explain to her. Max just wanted them to be shocked, he was not aware that he had struck the woman, but our aim was not to shoot this woman. When the shot, when the gunshot, when I heard the gunshot I became unconscious. I did not know what to do.

MR SWART: This translation, I cannot understand the Xhosa and you can page back to that if you would like, but this translation says that you wanted to do something to the people, you wanted to shock them in some way.

CHAIRPERSON: Just look at paragraph nine, four, which is written in Xhosa and also tell us whether it is in your handwriting.

MR TISANA: 94, nine four.

CHAIRPERSON: Paragraph nine at the top of page 24. There is a nine and an "a" and a roman numeral four.

MR TISANA: I do understand this, but can you please repeat the question? I would like the question to be repeated.

MR SWART: The second sentence of the translation says,

"I wanted them to be shocked so that they could not have any evidence".

What do you mean by that?

MR TISANA: On this particular day when I grabbed this woman in that window I was trying to explain to her that we just wanted weapons in that house. She did not understand. At this time it is when Max shot at her, because as he already said he just wanted this woman to be shocked, but my aims, as the Commission has asked me this question, I did not think at that time, because it happened automatically.

MS KHAMPEPE: In fact, Mr Swart, I have a problem with the translation myself, because I do not think it actually conveys what the applicant truly intended when you read it, because shock which he has used it as to frighten, really is not the direct translation of the word which he has used. I would have translated it like this. The people of the farm died because of the shooting. I simply wanted to frighten them so that I should not be implicated. Maybe we should request the translators to read the applicant's evidence in Xhosa and to let them translate it to us in English.

CHAIRPERSON: Yes. Will you please do that?

MS KHAMPEPE: May I just read to the translators so that they can translate. I think it will be much faster, because they do not have a copy of the application. The applicant says the following,

"The workers at the farm died through being shot. This was to shock them so that they do not have any details. We wanted weapons to protect our own community. We were forming our own defence unit as being ordered by the ANC as our own people in the community were being killed by the police and by the AZAPO".

MR SWART: So, if you listen to that translation, did you intend any harm to come to these people, because it sounds like that from that translation?

MR TISANA: Our intention was not to kill these people.

MR SWART: Are you saying in your application that you wanted them, you wanted to frighten them by shooting at them?

MR TISANA: I am referring to the sound, the bullet sound, not shooting at the people, but the sound so that they could be disturbed and not call the police.

MR SWART: So are you saying that you would have wanted shots to be fired, but not anybody to be hurt?

MR TISANA: No, before they were shot I was talking to this lady as Maxam also tried to speak to her, because we were not, we told this woman that we did not intend to harm anybody, we wanted weapons. This woman started to struggle, to argue and to scream. I leapt on her, I jumped on her. This is what happened.

MR SWART: I cannot understand what the second sentence means and I do not want to belabour the point, but I cannot see that you can tell us either what that sentence means and then I think one has to look at what it actually says.

MR TISANA: The second sentence, as I was talking to this lady at the window, she started screaming. When we went there our intention was not to harm anybody. She screamed, I held her, because I wanted to talk to her further. I heard a sound and then I let go of her and I ran into the house.

MR SWART: Can I ask you about the other items which were stolen, the clothing and the video. You said that you knew the other people who were part of the group who went to the farm?

MR TISANA: Yes, I knew them.

MR SWART: And you trusted them, you had been on operations with them before?

MR TISANA: Yes, I had worked with some of them in the township.

MR SWART: Neither yourself nor your two co-applicants know anything about the clothing or the video recorder. Then the Commission may very well think that one of the other people were, took those things.

MR TISANA: Are you talking about a video? Are you talking about a video?

MR SWART: I am talking about a video recorder, a machine to play videos on.

MR TISANA: I know about the jewellery box and the briefcase. I do not know what the others took. At that time we did not have an opportunity together and see what who took.

MR SWART: But is it not so that you had meetings after that and that you all discussed what had been taken, that you decided what to do? Everybody excepting the first applicant.

MR TISANA: We did not all together all gather. On that day there were a lot of police and helicopters. We could not stay in the township, we left for Cape Town. We left some of the Comrades behind.

CHAIRPERSON: Was there ever a time after the incident when you ran away, shortly thereafter or the next day when all of you who had been on the farm, except for applicant number one, gathered to discuss the event?

MR TISANA: No, at the township we could not at the time. We went to Cape Town. After that we went to Wocester and Ashton. The police were raiding our homes. We could not stay in our homes.

CHAIRPERSON: Well, on the occasion when you and your colleagues decided to go to Cape Town to exchange this jewellery for guns, when you took that decision, how many of you were present on that occasion? How many of you that were on the farm were present on that occasion?

MR TISANA: Four.

CHAIRPERSON: Apart from applicant number two and yourself, there were two others. Did they take anything from the farm?

MR TISANA: On our way to Cape Town I was the one with the, I was the one with articles. I was the one, I was the only one with articles. Nobody had anything. MR SWART: I understood from applicant number two's evidence that everybody, besides the first applicant, got together and that you then planned what to do further. Was that not so?

MR TISANA: Yes, because I was with them. I was with him and two others even when we went to Cape Town on that night. We then went back the next day.

MR SWART: Well, if there were six or seven then there were still two other people or one other person. Did you ever get together with this person or people?

MR TISANA: Yes, we did, but not to discuss this particular matter. We were from different parties even though we worked together, like PAYCO, ANC and UDF. We did not have regular meetings with them.

MR SWART: So you cannot say, it may be that one of the other members took the video recorder and the clothing.

MR TISANA: I cannot say, because even when we were running away I did not see anyone carrying these things. It was four of us who, I went with the four to, the other three to Cape Town. The rest I met with later, but we did not discuss this matter.

MR SWART: Thank you Mr Chairman, I have no further questions.

NO FURTHER QUESTIONS BY MR SWART

CHAIRPERSON: Yes, Mr Brink.

CROSS-EXAMINATION BY MR BRINK: Thank you. When did you leave school?

MR TISANA: I passed standard four and left school in the middle of standard five.

MR BRINK: What year was that?

MR TISANA: 1985.

MR BRINK: How do you support yourself?

MR TISANA: My parents supported me.

MR BRINK: Very well. You told the Committee that the first time you learnt of the gardener's death was when you were in prison.

MR TISANA: That is so.

MR BRINK: So that you had absolutely nothing to do with his death.

MR TISANA: I was shocked that he had been shot. I knew, however, about the domestic worker.

MR BRINK: Just let us confine ourselves to the gardener. You had nothing to do with his death?

CHAIRPERSON: He said that he heard it in prison.

MR BRINK: Yes.

CHAIRPERSON: That is implicit. The answer is implicit in it is it not?

MR BRINK: Very well. Very well, Mr Chairman. Did you disapprove of the death of the domestic servant?

MR TISANA: Did I disapprove? It is not something that we discussed, that we would get there and kill. It is something that happened. I cannot explain it. I was not expecting it.

JUDGE WILSON: Did you disapprove of it after it had been done?

MR TISANA: I disapproved, it is not something that I would encourage. It is not something that I would applaud. It is incorrect. The person had their own right to live.

MR BRINK: So that when you were holding her by the arm, I take it that was not to make it easier for Mr Maxam to shoot her?

MR TISANA: It was not for Mr Maxam that I held her. It was not our intention to do so. I held her, because I wanted to explain to her what was going on. She was screaming, trying to run away. I was trying to tell her what was happening. She did not want to accept what we were talking about.

MR BRINK: Thank you.

NO FURTHER QUESTIONS BY MR BRINK

JUDGE WILSON: Did you expect her to just let you go ahead and search the house and steal everything you wanted to?

MR TISANA: In the way I was explaining to her she did not even want to listen. Whether she was going to agree or not, I was going to here then. My intention was to explain to her the situation.

JUDGE WILSON: That the group of you had come there to steal from her employer and that she should open the door to let you do it. That is what you were going to explain, is it?

MR TISANA: I am not understanding.

JUDGE WILSON: You were explaining to her, as I understand your evidence, that the six or seven of you had come there to break into the house, to search it and to steal her employers possessions and you wanted her to open the door so you could do that. Is that what you were explaining to her?

MR TISANA: Yes, we wanted her to open the door so that we could search the house. We wanted weapons.

JUDGE WILSON: Were you surprised that she tried to break away from you and run away?

MR TISANA: No, because when I held her this is when I was trying to explain that we did not intend to harm anybody, we wanted weapons. This is when she got shot.

JUDGE WILSON: And you also want, as well as weapons, you wanted jewellery, you wanted money, you wanted anything else you could take in exchange for weapons. That is your evidence is it not?

MR TISANA: I would say it is so, because we did not get the weapons we expected to get, but when I saw that if I could take this jewellery I could buy some weapons.

MS KHAMPEPE: Mr Tisana, were you aware that Mr Maxam was carrying his firearm with him when this incident happened, when you decided to go to Vlakkeland to rob, were you not aware that Mr Maxam had his firearm with him?

MR TISANA: I knew that he was armed. I had gone to him as well to ask for a weapon so that we could protect ourselves should the need arise. I knew that we had a weapon.

MS KHAMPEPE: And how would you have protected yourself?

MR TISANA: It would have depended on the situation. We had the weapon to protect ourselves.

MS KHAMPEPE: Was it not your intention to use a firearm in the event of there being people in the houses that you intended to rob?

MR TISANA: It was not our intentions to shoot anybody. We wanted weapons to protect ourselves and our community. To murder was not our intention.

MS KHAMPEPE: Thank you.

MR BRINK: Mr Chairman, may I just ask the applicant a question. I am not quite sure which offenses he was, of which he was convicted, because he is applying for.

Mr Tisana, were you and Mr Ndinisa, Ndinisa rather, tried together? Were you in the same trial?

MR TISANA: Yes.

MR BRINK: In respect of which murder or murders were you convicted?

MR TISANA: For both people.

MR BRINK: For both?

MR TISANA: For both the gentleman and the lady.

MR BRINK: Yes and does that also apply, as I take it, to Mr Ndinisa?

MR TISANA: Yes.

MR BRINK: Thank you.

NO FURTHER QUESTIONS BY MR BRINK

CHAIRPERSON: Are there any other witnesses you propose calling?

ADV LOURENS: We do not propose calling any further witnesses. Mr Swart, do you propose calling witnesses?

MR SWART: No thank you Mr Chairman.

CHAIRPERSON: It is half past four. What do you suggest we should do?

JUDGE WILSON: I do not know.

CHAIRPERSON: It is half past four. They will not finish an argument in half a hour.

JUDGE WILSON: I do not think they should ...

CHAIRPERSON: Mr Brink and Mr Lourens, time is running out and ...

ADV LOURENS: I noticed that Mr Chairman.

CHAIRPERSON: Do you think you could submit some written argument by the close of the day tomorrow?

MR BRINK: Is there any prospect of continuing this afternoon, Mr Chairman, or do you wish to adjourn? Otherwise start earlish tomorrow. I will not be able to put out a written argument with the workload I have got at the moment. Absolutely not.

ADV LOURENS: Mr Chairman, I would be able to, by the end of Thursday, failing which if it is a problem with Mr Brink, I would be able to, if we could start at nine o' clock tomorrow morning, if, I would be able to make oral submissions.

CHAIRPERSON: Yes.

ADV LOURENS: Or even if it is at ten o' clock, it should not take all that long, but I would be in a position to do written submissions, but only by the end of Thursday.

CHAIRPERSON: Nine o' clock tomorrow morning. Mr Brink, if we adjourn now until nine o' clock tomorrow morning.

MR BRINK: Yes, yes.

CHAIRPERSON: Will you arrange to see that it does not inconvenience the others early in the morning.

MR BRINK: I do not think it will. We have only got the one matter tomorrow, Mr Chairman.

CHAIRPERSON: Yes.

MR BRINK: That, as you know, is Amy Biehl matter ...

CHAIRPERSON: I understand.

MR BRINK: ... and I do not think, even if that starts later I am sure we will finish in a day.

JUDGE WILSON: It is hard to say. It is not going to start before ten.

CHAIRPERSON: Yes. Well, can we tell them that it is not going to start before ten o' clock?

MR BRINK: Yes, I think people have been notified it will be half past nine, but I will get in touch with the Press in the light of this and ...

JUDGE WILSON: The family.

MR BRINK: ... tell them. I will be phoning the family Judge.

CHAIRPERSON: Applicants do not have to be present tomorrow then. They are in prison are they not?

ADV LOURENS: That is so. They are all three incarcerated in ...

CHAIRPERSON: Yes.

ADV LOURENS: ... various, in two different prisons.

CHAIRPERSON: In two different prisons.

ADV LOURENS: But their representatives are around here, but I will inform them in any event.

CHAIRPERSON: Yes. Have you anything to say as far as the adjournment of this case until nine o' clock tomorrow morning?

ADV LOURENS: That would suit me Mr Chairman. Thank you.

CHAIRPERSON: Yes. Very well. This matter is now going to be adjourned for argument until nine o' clock tomorrow morning. The applicants need not be present.

ADV LOURENS: Thank you Mr Chairman.

CHAIRPERSON: Is that understood.

JUDGE WILSON: Mr Lourens, do you think it would be possible for you to get the copies of the documents you are going to, well, certainly the one I would like to see, the document which you said you are going to refer us to.

ADV LOURENS: Yes, I will ...

JUDGE WILSON: Rather than us have to make notes ...

ADV LOURENS: Yes.

JUDGE WILSON: ... if you could.

ADV LOURENS: I will attend to that Judge.

CHAIRPERSON: Will you?

ADV LOURENS: Thanks.

CHAIRPERSON: Thank you very much. We adjourn till nine o' clock tomorrow morning.

COMMISSION ADJOURNS

ON RESUMPTION ON 08 JULY 1997

CHAIRPERSON: Mr Lourens, the document you have placed before us will go on the record as Exhibit C, EXHIBIT B.

ADV LOURENS: B.

CHAIRPERSON: Rather ...(intervention)

ADV LOURENS: Yes Mr Chairman. Mr Chairman, might I just state for the record as well where this extract comes from. I did not have an opportunity to write that on the relevant pages. It is an article called Political Pawns.

CHAIRPERSON: Political?

ADV LOURENS: Pawns or Social Agents, A Look at Militarised Youth in South Africa.

CHAIRPERSON: Just say that again.

ADV LOURENS: Political Pawns or ...

JUDGE WILSON: Political Pawns?

ADV LOURENS: Pawns.

CHAIRPERSON: Yes. F O R M S.

ADV LOURENS: Pawns. P A W N S. It is pawns.

CHAIRPERSON: Well, if it is Political Pawns or Social Agents.

ADV LOURENS: Or Social Agents, A Look at Militarised Youth in South Africa. It is by Monique Marks and Penny MacKenzie. Monique Marks is a researcher at the Centre for the Study of Violence and Reconciliation and Penny MacKenzie is a researcher at the Group for Environmental Monitoring. The article, I understand, was presented at a conference this year in May.

CHAIRPERSON: Conference of?

ADV LOURENS: Organised by the Institute of Criminology of the University of Cape Town.

CHAIRPERSON: You say it was in May this year?

ADV LOURENS: That is so Mr Chairman.

CHAIRPERSON: Yes.

ADVOCATE LOURENS ADDRESSES COMMISSION ON MERITS OF APPLICATION

ADV LOURENS: Mr Chairman, then if I might begin.

CHAIRPERSON: Yes.

ADV LOURENS: I draw the Comittee's attention to the last paragraph on page eight of the extract which I would read into the record.

"By 1984 there was upsurge of resistance in most urban townships. The State met this resistance with increased repression. In 1985 a State of Emergency was declared. The Congress of South African Students was banned and activists detained. From 1985 to 89 the State attempted to crush resistance through States of Emergencies, bannings, banning organisations, censoring the media and detaining and killing activists. It was the youth who were most active during this period and who were primarily targeted by the State. Both the State and civil society became increasingly militarised. Violence was seen to be an effective means of achieving change on the part of State opponents or crushing resistance of any form on the part of the State".

If I then could draw the Committee's attention to the second paragraph on page nine, the last sentence which begins,

"The aim of the campaign of ungovernability was to render organs of Government inoperable through mass action and/or violent opposition",

and in the next paragraph, the last sentence beginning,

"Oliver Tambo, then President of the ANC, stated in a well distributed speech within South Africa that Pretoria has carried out its murderous plans to extreme. We must now respond to the reactionary violence of the enemy with our own revolutionary violence. The weapons are there in white houses. Each white house has a gun or two hidden inside to use against us. Our mothers work in their kitchens, we work in their gardens. We must deliberately go out to look for these weapons in these houses. It is a matter of life and death to find these weapons to use against the enemy. The lone policeman must be made a target, he must be destroyed so that we can get his weapon. We must learn to lay ambushes for the armed personnel carriers and the police cars that patrol the locations",

and then finally,

"Township youth, in particular, heeded the call of Tambo and spearheaded the intensification of the revolutionary strategies employed by the mass democratic movement".

Mr Chairman, I quote rather extensively from this article by way of introduction to my argument, by way of background to the situation that the three applicants before this Committee found themselves in in 1985 which is the relevant period in which the incidents which form the subject of this amnesty occurred. The message here, I would submit, is one of violence. The applicants themselves and, according to their evidence, came out of a extremely violent situation. Violence was perpetrated against them in Mbekweni and the message was clear, they were to retaliate with violence.

To accomplish such retaliation firearms, ammunition were a very necessary part. I would ask the Committee to consider, as well, before I commence with the actual evidence, that the three applicants were part of a group of six to seven, of six or seven people and that the remainder of that group is not before this Committee and we have the applicants' subjective views, the individuals views of what occurred on 15 April 1986 at Vlakkeland. I submit that the applicants gave a full disclosure of what occurred on the 15th of April and that their evidence and their submissions collaborate, in material respects, each other. In this regard the applicants gave evidence of the prevailing conditions in Mbekweni and I would submit that that is, in fact, common cause and common knowledge at this stage.

The applicants gave evidence which accords one with the other of the way in which they came together on the 15th of April 1986. Meeting first at Block D, that applicant number one, Maxam, arrived to find out if any people had been arrested or detained or hurt in the violence that had occurred, that they later met at Block G, that applicant number three, Tisana, was the one who had the information from Nelson Sono about the arms that may be found at Vlakkeland. Their evidence of their arrival at Vlakkeland, meeting with the farmer, Mr Noble, applicant number one asking for employment. These important aspects of the events preceding the actual robbery and shooting accord with each other.

Now, as to the events at the actual farmhouse where the shootings occurred, it is clear and it is common cause that it was applicant number one, Maxam, who was the only one who had a firearm, he was the leader of the group and it was he who actually did the shooting. If I might just, I will deal with, I shall shortly deal with applicant number one's evidence regarding the shooting and his reasons or motives therefore, but if I might say that applicant number two, on his evidence, was not, in fact, present when the, both shootings occurred and the particular point in his favour, in that regard I would submit, is that after they arrived and the gardener said to number two, Ndinisa, please do not shoot me, he went to number one and said do not shoot him. It then transpired number one did shoot him afterwards.

I do not want to make a heavy issue out of this, but I presume that number two, applicants two and three were convicted in the trial in this matter on the doctrine of common purpose as were the others who were convicted for the robbery on common purpose and I would ask this Committee to have regard here to the individual roles and the individual explanations of each of the applicants.

JUDGE WILSON: They say they had no common purpose, therefore they are not guilty of these offenses. Is that not what it amounts to?

ADV LOURENS: Mr Chairman, my submission in this regard is that the doctrine of common purpose is what must have, that the court must have found that there was a common purpose in so far as the robbery was ...

JUDGE WILSON: No, I am talking about the murders.

ADV LOURENS: Well, not having the benefit of actually what was ...

ADV LOURENS: But you are appearing for applicants two and three which I understand have given evidence on the basis they did not commit murder.

ADV LOURENS: That is so.

JUDGE WILSON: So they cannot ask for amnesty for it.

ADV LOURENS: They were found, however, they were found guilty of the murders.

JUDGE WILSON: Yes, but they are asking for amnesty, the procedure is they ask for amnesty for an offence they have committed. They say they did not commit this offence. We do not sit here as a Court of Appeal.

ADV LOURENS: Well, ...

JUDGE WILSON: What is the position?

ADV LOURENS: Well, Mr Chairman ...

JUDGE WILSON: Did they appeal against their convictions?

ADV LOURENS: I have no knowledge as to whether or not they appealed against their convictions.

JUDGE WILSON: Before us their attitude has been they did not go there knowing that anyone was going to be shot. They took no part in the shooting. They did not anticipate it which is no common purpose.

ADV LOURENS: That is so Mr Chairman.

JUDGE WILSON: Well, can you ask for amnesty for them? Have you applied your mind to the question?

ADV LOURENS: Mr Chairman, in that regard all I can submit is that my instructions were to deal with this matter on the basis that these two applicants wish to apply for amnesty. If the Committee feels that there is not, no reason for them to apply for amnesty then that is a question for the Committee. Their, I cannot, their evidence was what it was before this Committee yesterday. I am asking the Committee to accept their version of the events that occurred there.

CHAIRPERSON: You are saying that despite the fact that they pleaded, they say that they had no common purpose in the killing of these two unfortunate people, they were nevertheless convicted and it is because they were convicted and sentenced they are applying for amnesty in respect of that?

ADV LOURENS: That is my understanding, Mr Chair.

CHAIRPERSON: Is that what you are trying to say?

ADV LOURENS: Yes Mr Chairman.

CHAIRPERSON: Yes, carry on.

ADV LOURENS: I would ask the Committee to have regard to the fact that there was no, from the evidence it appears that there was no well determined plan. The plan seems, appears to have been made on the day in which the events took place. Almost as a reaction to the events that had, the violent events that had preceded or had occurred in Mbekweni at the time.

CHAIRPERSON: Well, there was a plan, but it was amateurish, was it not?

ADV LOURENS: That is so. That is the point I will come to, but Mr Chairman, you have raised it. I would ask that the Committee have regard to the fact that these applicants would have been in their late teenage years or early 20 years in the case of number one at the relevant time and they had not acted as a well trained group who had done this kind of thing before. It was almost a spontaneous reactions of youths in reaction to what was occurring there and the thought of what might occur if you have a firearm with you might not have actually entered their minds and I think that is something that came out in the evidence, that the shootings occurred in that particular situation. There had not been much thought beforehand, there had not been much planning, what would happen if this happened or that happened and, yes, Mr Chairman, I would ask the Committee to bear that in mind as well. That it was not a well thought out plan of experience or trained persons.

The evidence, I would ask the Committee to accept the evidence that the motive for the robbery was to obtain firearms. In this regard it is clear that the, and I think the Committee may accept this, that all three were political activists at the time. All three were involved in PAYCO and were very politically aware and their evidence was that they did need firearms to deal with the situation that they found themselves in. As to the aspect of the jewellery and the money that was stolen, I would ask the Committee to accept the explanation of the applicants number two and three who had knowledge of the theft of those items and what was done with the items and that was that the jewellery was exchanged for firearms and, if I might summarise, the money was used for transport and living expenses at the time for the activists. Number one's explanation ...

MS KHAMPEPE: On that score ...

ADV LOURENS: ... in that ...

MS KHAMPEPE: May I interrupt Mr Lourens? Their evidence seems to have been that they actually interpreted or at least understood the Tambo text to authorise them to steal not only weapons, but cash or items of value that could be exchanged for weapons. Is there any reasonable basis for them to have understood the text in that fashion?

ADV LOURENS: Well, having, if the quotation is what they refer to as the Tambo text, which I presume from the article, if it was well distributed, it must be although it is not referred to in those terms. I would submit that it is a reasonable, there is a reasonable basis for such a belief. If people in this position must, their, obviously their primary intention was to obtain firearms, but in the absence of firearms I would say that you would take something to convert into firearms and I think it would be unrealistic to expect that once a robbery for firearms has been perpetrated and a house has been broken into and there is money or items of value that could be used in this regard to purchase firearms, it is an indirect way of achieving the same goal, would be my submission and I would submit that it is not a far-fetched or belief that has got no basis in reality and their evidence is that that it what it was used for. Even to the extent of people unemployed, I am specifically thinking of the money now, people who are unemployed, who are involved in a struggle, this is what actually takes up their time, they need money to live and there it was, but if the Committee accepts that their primary motive was, in fact, not to steal for personal gain in the sense of we have now got a video recorder and my girlfriend is wearing lovely jewellery, which, that evidence, there is no such evidence before this Committee, then I would say that it is a reasonable assumption to make.

JUDGE WILSON: Is it not a little surprising, in the light of the specific finding of the Appeal Court as to what was stolen, that there is no evidence before us about anything except the jewellery? Large quantities of clothing were stolen yet none of these three people saw any of that.

ADV LOURENS: The, Mr Chairman, if I might just comment on that. I would, there were more than these three people involved.

JUDGE WILSON: There were four more at the most.

ADV LOURENS: Yes.

JUDGE WILSON: They went into the house together, they went through the rooms together, they ran out together when someone gave the alarm and yet these three did not notice any of what was referred to as a large amount of clothing.

ADV LOURENS: Yes, well the evidence of number one was that he took the ammunition and he disappeared, he did not see any of them again after that which was corroborated by the other two. Number three, Tisana, says he, what he took was the briefcase ...

JUDGE WILSON: Was the briefcase and the jewellery.

ADV LOURENS: ... and the jewellery which he apparently dropped or abandoned, the money and the jewellery. There is no evidence from them as to the other items that were taken, but I do not think that the Committee can in the absence of any such evidence make any conclusions about the other things that were taken.

JUDGE WILSON: No, one can make conclusions about their credibility as to whether they have made a full disclosure.

ADV LOURENS: Mr Chairman, I would submit that it is reasonably possible that these people did not know what other people took and were running in all different directions. Having regard to the fact that none of the other people were, in fact, tried in this matter. Only number two and three were tried. I do not know what their evidence was in the actual trial of this, in this matter, but I would submit that if they were open about what they did take, the money, quite a large quantity, and the jewellery then the fact if they had taken a video recorder or clothing, I am sure the same explanation could have been given by them for those things as well if they had knowledge of it or had taken it. One does not really know what was, what the evidence in regard to that was.

JUDGE WILSON: One does not know and they are applying, they are the applicants, they are presenting their case. One does not know at all. You see you have already said it would be different if they had the video shop, if they had the video set and was using it and they were wearing the jewellery or wearing the clothing. Perhaps that is why we have not heard about it.

ADV LOURENS: I would ask the Committee not to read or interpret my analogy to that extent. If, I used the analogy to merely to illustrate what their explanation as to what they did do with the stuff that they say that they took. I have alluded to this and I would stress that the Committee is dealing here with youths, one could say, with a cause. They were on a mission inspired by Mr Tambo in exile, that that message is a violent message, that they themselves were subjected to violence. They came from a community endemic with violence at that stage perpetrated against, a basically, defenceless community. With regard to applicant number one, Maxam, he gives his explanation. It is his subjective belief that I would ask the Committee to have regard to.

Who would understand, possibly, the fear and panic of later incarceration, of the possibility of being forced to, to betray ones Comrades. It is clear that he, at that stage and on his evidence, did not or feared being caught.

CHAIRPERSON: That is understandable, feared being caught is understandable, but I do not think that assists one way or the other.

ADV LOURENS: I would, Mr Chairman, I would urge the Committee to consider the reason why there was the fear of being caught. Not for being caught out, for perpetrating a robbery for personal gain, but the fear of being removed from where you are needed to engage in a struggle against the Government in a destabilising of the Government, the fear of being detained, of being tortured, of being made to betray your Comrades. I would say that that is the fear. Not a selfish ...

CHAIRPERSON: Isn't the real fear the fact that he is the only one that perpetrated the murders. He killed two people and the fear of being detected and dealt with for that offence or those offenses ...

ADV LOURENS: Mr Chairman, I would say ...

CHAIRPERSON: ... was the cause of the fear?

ADV LOURENS: ... that the fear preceded the, preceded the shooting.

JUDGE WILSON: A problem here that he behaved, on the basis of the other two applicants, completely irrationally. To quote from your document what Tambo says is,

"our mothers work in their kitchens, we work in their gardens",

and what he chose to do was kill the mother who worked in the kitchen and kill the person who worked in the garden. It was irrational behaviour and if you look at the next page, page ten of your papers, the second paragraph. It says,

"Being a Comrade had a number of significant meanings. Firstly, Comrades were the people who strove to uphold all that is good against all that is evil. Consequently being a Comrade required being discriminating in ones behaviour at all times thus setting an example to other members of the community. As a result the Comrades came to see themselves as the moral defenders of the community who were disciplined and whose role it was to try to ensure that fellow residents behaved in an exemplary manner".

Well, the first applicant did none of that. He behaved in an entirely ruthless manner killing people whom he was there to support for no reason other than to cover up for himself and isn't the most apparent explanation for that that contained in the Appellate Division judgement as to his mental condition as a result of the stresses he had gone through the evidence that was led there about it.

ADV LOURENS: Mr Chairman ...

JUDGE WILSON: "Because he was a person of innately anxious

make-up which this position had been so aggravated by serious ongoing political upheaval in Mbekweni that when he committed the offenses he was suffering from what is known as a general anxiety disorder".

ADV LOURENS: Yes, that is an aspect and I would agree with you on that. I was, it is a point that I would raise in argument, but he ...

JUDGE WILSON: But he behaved irrationally. The other two could not have expected such behaviour.

ADV LOURENS: If the Committee's finding is that it is irrational or that there, or that the anxiety disorder, which the Appeal Court found to have existed, then my submission in that regard would be that it would negate the, any question of a ruthlessness on his part merely just to be put in a ...

JUDGE WILSON: It would negate any political purpose on his part.

ADV LOURENS: I would ...

JUDGE WILSON: Would it not?

JUDGE WILSON: If he was suffering ...

ADV LOURENS: With respect ...

JUDGE WILSON: ... from this disorder.

ADV LOURENS: With respect, I do not think the Appeal Court found that the anxiety disorder was the motivation or the cause or why he ...

JUDGE WILSON: It was a factor ...

ADV LOURENS: ... acted ...

JUDGE WILSON: which influenced ...

ADV LOURENS: It was, it was ...

JUDGE WILSON: ... why he behaved like that and which amounted to extenuating circumstances.

ADV LOURENS: Circumstances. I would submit that it is a factor, one of the factors to be taken into consideration.

JUDGE WILSON: Because there is no, as far as I can see, political reason, no political profit to be gained from murdering the maid and the gardener. It could only have caused great distress.

ADV LOURENS: My, I would like to make one further submission in regard to, and I would say it is quite ironic that the text speaks about our mothers working in the kitchens and a gardener in, and we work in the gardens, but it is so that during this period innocent people were victims, were found to be victims whether in a situation such as the present one or in the townships. Victims of township residents, one against the other, of the police against the township residents, of residents against the police. There were victims ...

CHAIRPERSON: You can understand that.

ADV LOURENS: ... and there were innocent victims.

CHAIRPERSON: You can understand people being caught up in what is known as a shoot-out between the police, on one hand, and their opponents on the other and innocent people being injured or killed in such an incident, but the facts of this case are very, very different from that kind of situation, is it not? You had two people that were killed, intentionally killed, not accidentally killed.

JUDGE WILSON: And two people who were doing nothing at the time. The woman was, out of the kindness of her heart, handing out a drink of water when he shot her at almost point blank range. Then when she is lying on the kitchen floor when he walks out of the house he shoots her again. The gardener has been left out in the garden, he is doing nothing, he shoots him. These are not people who were accidentally shot, who happened to get in the way, these are people he deliberately chose to murder, are they not?

ADV LOURENS: I repeat my previous submission that the applicant gave his explanation. It was his subjective view that of why he did what he did.

MS KHAMPEPE: But doesn't your client, Mr Lourens, have a serious problem with regard to the shooting of the gardener, because the gardener had not actually seen him? There is no evidence that the gardener had observed him. At no stage had the gardener actually come closer to Mr Maxam. According to the evidence of Mr Ndinisa, Mr Maxam was about 30 paces away from the gardener and could not have had an opportunity to observe him well. So the fear of being identified by the gardener becomes a little worrying.

ADV LOURENS: I think what you are referring to is after or just prior to the shooting. The evidence, as I understand it, was that when they arrived the gardener was there and saw them, but the distance of the, well my understanding of the evidence was that there was this distance afterwards, but that they arrived together and that the gardener was there.

CHAIRPERSON: He did give an additional reason and that was that he feared that the gardener may tell the police the direction in which they had fled and it would have made it easier for the police ...

ADV LOURENS: Yes, that is so.

CHAIRPERSON: ... to hunt them down.

ADV LOURENS: At that, that is so Mr Chairman, and at the time the evidence also was or just prior to the shooting of the domestic worker, that she was screaming, while they were in the house there was, somebody shouted "sout" which is the warning, because there was a white combi approaching. So it was not as though they were there and there was nobody coming or that they did not have any reason to fear that they would be caught or imminently caught.

JUDGE WILSON: But once again, all they see, all he sees is a white combi coming, does not know what it is, does not say it is a police vehicle, but for that he kills a man. Is that rational behaviour? A man who had not spoken to him, whose colleague said had not been close to him, who may have seen him walking past, but he kills him. Is it not totally irrational?

ADV LOURENS: Mr Chairman, I do not ...

JUDGE WILSON: To cover up the fact that he has stolen one little box of bullets.

ADV LOURENS: I do not think the evidence was or Maxam's really evidence really was only for himself that fear of discovery. I, they were a group together?

JUDGE WILSON: So what?

ADV LOURENS: If one got caught or discovered that could bring all of them down.

JUDGE WILSON: So they think, you submit, that it is a political purpose to go to a house on the basis if anybody sees us when we knock on the door we will kill them, because I do not accept, what, what we have heard and from the representations made by the ANC, that that was ever the ANC policy.

ADV LOURENS: I am arguing my client's version, my client's explanation and that is what I ...

JUDGE WILSON: Which was that as soon as somebody, he went up to speak to the woman, he called out to her to come, open the window, give him a drink. He chose to do so and he then killed her, because she had seen him. That is your client's version is it not?

ADV LOURENS: That is so Mr Chairman.

CHAIRPERSON: Well, when the first shot was fired it would seem that that was triggered off by the fact that she screamed. That is when the first shot ...

ADV LOURENS: Yes Mr Chairman.

CHAIRPERSON: ... was fired, but the final shooting that took place, the second shot that he fired he did not care to see whether she was dead or alive. He just shot simply because he did not want any evidence pointing at him in the event of the death of this person being discovered and people arrested. So you draw a distinction between what happened and why he shot the first time, she screamed and he panicked.

JUDGE WILSON: But at the, when he shot the first time the only possible offence that had been committed was catching hold of her by the arm. No thefts had been committed, no robberies, had they?

ADV LOURENS: Mr Chairman I do not, the import of his evidence was not that he was fearful, though of course it is part of it, of being caught out for the robbery, the, I submit that their evidence went further than that. It was looking towards the future.

JUDGE WILSON: What did he kill this woman for then? So he would not be known as a political activist when everybody in the, on the evidence that was led by him, everybody knew him to be a political activist. He was a leader of, he was one of the founders of PAYCO. This was not something people did not know. These people were all, as you have said in your address, were all known political activists. They did not have to cover that up. He could only have killed her, because he wanted to commit a robbery and she got in the way and she might identify him and he was in a state of nerves. Is that not the position?

ADV LOURENS: Well, I can only ...

JUDGE WILSON: Well, I am not saying even he killed her. As my brother has correctly said, he fired the first shot at her then. He then chose to fire another one later when she was doing nothing.

ADV LOURENS: If I might just ...

CHAIRPERSON: Do you draw a distinction in your mind between the cases of the first applicant and the other two applicants or do you not draw a distinction in respect of their applications for amnesty?

ADV LOURENS: Yes, there ...

CHAIRPERSON: Is your position that they will stand together or they fall together?

ADV LOURENS: That is not my position. The, on their own versions, their explanations of their involvement in the actual events that transpired are different and I would ask the Committee to consider it in that light.

CHAIRPERSON: Yes, carry on.

ADV LOURENS: If I might just find my, because we have covered certain things now that.

CHAIRPERSON: Take your time.

ADV LOURENS: The, without belabouring the point, the political motive did, in fact, come out in the trial. Just ask the Committee to have regard for the fact that in the late 80's this was not really a defence that could be relied on and that, I would submit, is why Judge Howie said to applicant number one's council in the appeal that she wisely did not rely on that aspect and that, possibly, this aspect was, well not possibly, it was never really fully canvassed in the actual trial of the matter. I would ask the Committee to have regard to the fact that it is clear that the community from which these applicants come from do support them by having regard to the petition which forms part of the record and there was also evidence that there had been a previous petition in regard to the granting of amnesty.

And then finally, in, I would submit that subjectively speaking each applicant at the time when the incident was perpetrated viewed, on their evidence, what they were doing as being correct and that in hindsight the remorse which has been expressed by the applicants at this hearing and by applicant number one at the Human Rights Commission speaks volumes in that regard, but that the situation they found themselves in at the time, this is what or this, applicant number one believed what he should do.

JUDGE WILSON: Yes, must you not draw a clear distinction ...

ADV LOURENS: Yes.

JUDGE WILSON: ... here between ...

ADV LOURENS: I am ...

JUDGE WILSON: ... applicant one and, as my brother has asked ...

ADV LOURENS: Yes.

JUDGE WILSON: ... you, for the ...

ADV LOURENS: I am ...

JUDGE WILSON: ... second and third applicant.

ADV LOURENS: Yes.

JUDGE WILSON: They did not say that what they did was right.

ADV LOURENS: I meant to, I meant, in fact, applicant number one. Thank you Mr Chairman. I have no further submissions.

CHAIRPERSON: What was the political objective to be achieved as far as applicant number one is concerned? I am now not talking about the objective to go around obtaining firearms for his cause.

ADV LOURENS: The ...

CHAIRPERSON: I am talking about what was to be achieved by the actual killing? What was the objective to be achieved?

ADV LOURENS: If in summary, I would say that his or his evidence in this regard was that he saw himself as an important part of the struggle and that he did not wish to be removed from that struggle and that he wished to continue to play a role in the struggle.

CHAIRPERSON: Speaking for myself, I have difficulty understanding this answer that you are giving. I know the answer you are giving is the answer that he gave, more or less, but I have difficulty accepting that that was the objective. You think that he would be thought very much more highly if in the community at large it was discovered that Maxam had killed an innocent domestic worker, on the one hand, and a gardener.

ADV LOURENS: Mr Chairman, I would say that in this community and that innocent people had been killed, one way or the other ...

JUDGE WILSON: Not ...

ADV LOURENS: ... in various ...

JUDGE WILSON: ... deliberately murdered, as my brother has put to you already. You keep saying in the community they had. All over the country innocent people were killed in the crossfire of this violence.

ADV LOURENS: With respect Mr Chairman, I would submit that if somebody is necklaced because they are perceived to be an informer or if policemen fire ammunition into a crowd of people the ...

JUDGE WILSON: Because they think ...

ADV LOURENS: ... same intention

JUDGE WILSON: ... they are (indistinct).

ADV LOURENS: ... to kill is still there. It is not ...

JUDGE WILSON: It is not a cold blooded intention. The first example you gave was someone was necklaced because he was thought to be an informer. Not just because he happened to have seen them. The police fire into the crowd, because they are throwing petrol bombs or throwing stones at vehicles. In fact, it was rather surprising that the evidence seemed to be and I tried to make a note of it each time that the police fired with teargas or rubber bullets. That was their violence. Be that as it may. This, as my brother put to you, was a very different type of killing. Would the community have accepted that he shot a domestic worker who had just given him a glass of water to drink? That he shot a gardener who was just standing outside?

CHAIRPERSON: He was lying on the ground.

JUDGE WILSON: Lying on the ground, in fact, on some of the evidence with his legs tied up.

ADV LOURENS: The evidence before the Commission is that there has been a petition of, from that community. I cannot speak for the community. I would say that if one has regard to the petition it probably expresses some sort of understanding for what occurred in those times.

JUDGE WILSON: 600 People of how many thousand live in that community?

CHAIRPERSON: Well, I do not think that we must concern ourselves with petitions, because petitions can be engineered. Let us look at his case as it is on the ground and I asked you what the objective was, what could be the objective in killing these two people and your answer was that, well, he wanted to continue to be looked upon as a leader in the community.

ADV LOURENS: Not, Mr Chairman, not looked upon necessarily, ...

JUDGE WILSON: He wanted to (indistinct).

ADV LOURENS: ... but to participate.

CHAIRPERSON: Participate?

ADV LOURENS: To be active.

CHAIRPERSON: Yes.

ADV LOURENS: To continue in the struggle.

CHAIRPERSON: That is right. Now then what you are really saying is that that is the objective, that is the objective?

ADV LOURENS: On his evidence ...

CHAIRPERSON: On his evidence.

ADV LOURENS: ... that is what, that is what, how I would summarise his evidence.

CHAIRPERSON: Very well.

MS KHAMPEPE: You will remember, Mr Lourens, that the reason advanced by Mr Maxam for participating in this operation to steal firearms was to make sure that the operation succeeded and that the other people did not bungle, because he was the leader and he had no confidence in whether they would be able to successfully execute the operation.

ADV LOURENS: Yes, sorry, I had troubling hearing you.

MS KHAMPEPE: I am saying when you are advancing the political objectives sought to be achieved by Mr Maxam you must bear in mind the reason which he himself advanced to the Committee for participating in this operation. It was to avoid any mistakes being committed by the other members of the group.

ADV LOURENS: Yes, that is so, but then I would rely once more on the youth of these perpetrators at the time and their obvious lack of training, their obvious lack of not having more senior leadership, for example, or a clear cut plan. This was clearly something that arose out of a situation in the township that morning where they got together. Somebody said, oh, there are guns at this farm, let us go to the farm, we can get guns and we can do something about it. The, it is clear that Mr Maxam was the leader of the group, but in so far as that has any real meaning given these other factors, I would ask that the Committee then to bear in mind that although those were the intentions to make sure that nothing goes wrong and, as you put it now, that in a way they probably were a rudderless ship, if I can use analogy with, and things started going wrong as they do sometimes in these, well, often in these kind of situations.

CHAIRPERSON: Mr Swart, is there anything you wish to say?

MR SWART ADDRESSES COMMISSION ON MERITS OF APPLICATION

MR SWART: Thank you Mr Chairman. Mr Chairman, I would like to form my argument on the basis of the criteria which are set out in the Act and refer to each specific criteria. Firstly in respect of the first applicant and then in respect of the second and third applicants together and I think I can cut short my argument very much by doing it in that manner.

In respect of the first applicant, Mr Chairman, if one looks at the first of the criteria set out in Section 20, sub-section 3 that is what the motive and I think on his evidence and on the evidence of all the applicants the motive was to obtain firearms. I will restrict it to motive at this stage and not go any further. The second thing to be looked at, what was the context. Now there was a wider and a narrower context, in my submission. The wider context is the context of the political situation in the country and in that township round about that time, but the narrower context is the context of what happened on that day and in that respect the first applicant had a problem in that he was not reacting against somebody who was attacking him. He was, as was said before, acting almost irrationally. He was doing what was completely unexpected. He was shooting defenceless people.

JUDGE WILSON: Can I interrupt you for a moment?

MR SWART: Yes.

JUDGE WILSON: Something I should have asked yesterday and I did not and I do not know if you can help. What were the ages of the two deceased? Do you know?

MR SWART: I am not sure. I can tell you, I have actually got it in, I have got a newspaper report which should have it in.

JUDGE WILSON: Well, carry on with your address. If you could at ...

MR SWART: Certainly.

JUDGE WILSON: ... the end tell us.

MR SWART: Certainly. The next criteria which is sub-section C is the legal and factual nature of the act including the gravity of the act. Now, the murders definitely must be the gravest kind of offence which you can commit and I am speaking only in respect the first applicant at the moment. So obviously it is a very serious matter. Then if one goes to the object or objective of the act, that is what has being discussed at some length now and then specifically whether the act or mission or offence was primarily directed at a political opponent or the State property or personnel or against private property or individuals. Now, in this case, that is very telling, because the murder was not of a political opponent, by the first applicant's own evidence, it was somebody who was with them in the struggle. This person could not, was a defenceless person and so when one looks at that specific criteria then he did not make the grade on that one, definitely not.

The next one, whether the act, mission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation. Now there again there is a problem for the first applicant in that it seems to be common cause that the instruction from the ANC was not to kill. It was to obtain firearms. So, in respect of that criteria as well, my submission is he does not make the grade.

Then, very important, is the next one is sub-section F. That is the relationship between the act, mission or offence and the political objective pursued and, in particular, the directness and proximity of the relationship and the proportionality of the act, mission or offence. My submission is that the first applicant could, as has been said, when he made his decision when he decided to shoot the first shot. Before he pulled the trigger they could have turned their backs, they could have walked away and if the farmer himself had seen them at the gate and let them enter I assume nothing further would have come it, but by pulling the trigger he did something which was completely disproportional to the circumstances and if one then looks at what happened afterwards, after the first shot in proportion to what they were there for, it is disproportionate.

Then I, in respect of the first applicant, I must go further and at the small roman two, one must just look at the facts and it makes one wonder if it was not, as it says here, if his actions do not speak of someone acting out of personal malice, ill-will or spite directed against the victims. His evidence was, no, it was not, it was to prevent being identified, but the actions, shooting defenceless people, shooting somebody who is tied up, shooting a person who has had somebody plead for his life with you. It makes one wonder if, in fact, he was not acting out of ill-will or spite or malice. That in respect of the first applicant and then if one ...

CHAIRPERSON: I think ill-will and spite bring into play questions such as him lowing the people beforehand and harbouring ill-will towards them or having some spiteful contact towards them. These were strangers to him. There was no relationship whatsoever between them. So I think that that consideration might not apply in dealing with this problem. That section, that sub-section of sub-section three.

MR SWART: Yes. It may be so Mr Chairman, but my submission would still be that ill-will or spite or malice is possible in respect of somebody who you do not know at all, but you are the guy with the gun and you are the guy to pull the trigger and the way in which you do it can be construed to show that you have absolutely no regard for that person's life and in that respect I submit that he acted with malice.

JUDGE WILSON: Do you say this on the basis that on the evidence it would seem that she was, gave out the water then she was grabbed and then it was explained to her, and I must say I have a little difficulty understanding how it could have been explained rationally in the circumstances, what they wanted to do and that is, presumably, she was told and the first applicant would have heard her being told, look, we have come here to steal guns for the struggle, open the door and let us in and when she refused to do that and started screaming instead, that he then felt the ill-will or spite, because she was not prepared to co-operate?

MR SWART: That is possible.

JUDGE WILSON: Can one, does the evidence support any such findings?

MR SWART: No, it does not. It does not, but the fact that the shots were fired and the evidence which is undisputed, the way in which the gardener was shot, for example. I find it difficult to say that somebody could do that completely dispassionately.

JUDGE WILSON: No, that is why I put to Mr Lourens that it seems here that it, one could almost use the phrase "trigger happy" ...

MR SWART: Yes.

JUDGE WILSON: ... which would indicate that because of the stress he was under he was behaving irrationally.

MR SWART: Yes. The ...

JUDGE WILSON: And then it would not be ill-will or malice if it was irrational behaviour.

MR SWART: Yes. What is more I think the arguments which have been made before in the fact that these were unfortunate innocent bystanders, in fact, goes against the first applicant in that regard in that there was a disregard for the lives of these people. Tough luck, they just happened to be at the wrong time. In fact, his evidence was at a stage in cross-examination that if he went to any premises and there were people there bad luck for them and, as far as I am concerned, that type of disregard must be seen as absolutely, it is tantamount to malice or ill-will towards that person, towards his right to life.

MS KHAMPEPE: Despite the fact that the applicant was suffering from the general anxiety disorder?

MR SWART: Madam, that is so according to the Appeal Court record, but that was not his case before this Commission, Committee. I accept that he had a disorder, but that was not the reason he gave for having shot the people. I agree, also, that is one of the factors to be taken into account.

CHAIRPERSON: Presumably was the evidence led on his behalf in mitigation or extenuation ...

MR SWART: Yes.

CHAIRPERSON: ... by his counsel.

MR SWART: That is correct. If I could look at the criteria again, run through them a second time in respect of the second and third applicants and then, perhaps, just before I start with Section 20, 23, right in the beginning at Section 21C there is also, of course, the text that the applicant must make a full disclosure of all the relevant facts and I mention this one first, because there is doubt in my mind whether the second and third applicants made a full disclosure and that is specifically on the point of the other items which were not disclosed. I know there is no conclusive argument in this regard, because there were other people involved. It just seems very strange that in spite of the meeting which the second applicant spoke of where everybody spoke, where everybody said what had happened, discussed the matter that nothing was said and this was a group, besides the first applicant, who had worked together, who trusted each other, who had been on operations before, according to the evidence.

CHAIRPERSON: The suspicion ...

MR SWART: Yes.

CHAIRPERSON: ... that they knew, but I do not think you can go very much further ...

MR SWART: I ...

CHAIRPERSON: ... than that.

MR SWART: ... cannot go further than that.

CHAIRPERSON: Yes.

MS KHAMPEPE: At that meeting, Mr Swart, was not attended by all the members of the group. I think it was attended by the people who ultimately managed to go to KTC. That was the evidence we heard.

MR SWART: As I understood it, there was actually a conflict in the evidence there in that I understood the second applicant to say that everybody, excepting the first applicant, was there and then the third applicant...

CHAIRPERSON: No.

MR SWART: ... saying that there were only four people there.

MS KHAMPEPE: That was not my understanding. My understanding was that that meeting was attended by the four people who ultimately proceeded to Cape Town.

MR SWART: I am, that is the way I saw it.

CHAIRPERSON: (Indistinct) that as far as the second and third applicants are concerned, you think that they have not made a full disclosure.

MR SWART: Yes, that is ...

CHAIRPERSON: That is the point you are making.

MR SWART: It is just a suspicion, as I say, it cannot be proved. It just seems that it is unlikely that they would not have known what happened to the other things. Then if one goes to sub-section 3, again the first point is what was the motive of the person and then one must look at the Tambo text which has been submitted and also at their applications. They or the second applicant said in his application that the motive was to steal firearms as did the first applicant, but the third applicant, as I understand his application, does not actually give a specific motive.

CHAIRPERSON: I think that he went along with ...

MR SWART: With the group.

CHAIRPERSON: ... with the group and the motive of the group was to go to look for firearms.

MR SWART: That is correct, but then in their evidence the motive is expanded into say that it was not only firearms, but anything else which could, cash or other valuables which could be sold. Now, it seems to me just that that is possibly a convenient explanation for what happened. One would have expected that the first and the second applicants whose motives appear on their amnesty applications clearly, would have also said that we were, our motive was to go and ransack the farmhouse, take what we could get, because we so urgently needed firearms that we were all out to take whatever we could get and it seems to me that the explanations given here were so as to explain away, to make it acceptable that there was actually a robbery.

Then if one looks, secondly, at the context in respect of the second and the third applicants as regards the murders. It is so that they were part of the group, but that the second applicant had specifically asked that the gardener not be shot. As a group they, unfortunately, have to bear some of the brunt of what happened in the group.

The third criteria, the legal and factual nature, I will not go into that. Then again the object or objective against which was directed, that the same arguments apply as in respect of the first applicant excepting that it could be argued in their favour, I suppose, that the stuff was stolen from a farmer, but the lives were taken of people who were their own compatriots.

Then sub-section E and that is, again, what, if they were acting within the execution of an order or with the approval of the organisation. My submission is in this case I am not convinced that their organisation would have approved of them taking anything more than firearms. They said that this was their motive and the text which has been supplied speaks specifically of firearms. I think that it has just been convenient for them to say to this Committee, well, we took anything else as well to buy firearms with. On that same point there was the evidence of the first applicant who bought a firearm for R50,00. So there were ways and means of, other ways and means of getting firearms without killing people and that also applies then to sub-section F which is the relationship between what happened and the objective which they were pursuing and especially the proportionality of that act. Whether it was necessary to go to these lengths to kill people, in their case not directly, but to then ransack a house go beyond the scope of their direct order. I do not think, I think it is disproportional.

Then lastly there is the question of personal gain. If the Committee should find that it was outside the scope of what was said in the Tambo text, that they should steal firearms, they actually took jewellery and cash as well. The jewellery they say they bought firearms with, but the cash they used for expenses. Now, is that not personal gain?

JUDGE WILSON: Well, did they not, I was interested in that and I thought the answer, answered that and I do not think, we used the money to feed ourselves when we were on duty as self-defence units.

MR SWART: Yes.

JUDGE WILSON: Not that we bought food to take home.

MR SWART: I ...

JUDGE WILSON: So did it not bring it into the common purpose to support the community rather than personal gain and ...

CHAIRPERSON: Well, I believe that they fed other Comrades as well with whom they had been housed.

MR SWART: Yes.

CHAIRPERSON: I do not think there is very much that can be said ...

MR SWART: Yes, I ...

CHAIRPERSON: ... this point.

MR SWART: I think it is aa very fine line one ...

CHAIRPERSON: Yes.

MR SWART: ... says when you are on that one. I just leave it with the Committee that there ...

CHAIRPERSON: Yes.

MR SWART: ... is a possibility that this money which was very loosely used, they say it was used in the group for some of them, it could very well have been used for personal gain. Those are my submissions and on the basis of that the next of kin oppose the amnesty applications. Thank you Mr Chairman.

CHAIRPERSON: May I ask you whether, you have not told us what the attitude of your client is, your clients, if they are here, what their attitude is towards this, these applications.

MR SWART: They oppose the applications Mr Chairman.

CHAIRPERSON: Yes and they understand what is meant by, what the purpose of the Act is?

MR SWART: Yes.

CHAIRPERSON: And that is an attempt to bring about reconciliation?

MR SWART: Yes.

CHAIRPERSON: That has been explained to them?

MR SWART: That has been explained to them, Mr Chairman, at some length, because my client, the son of the housekeeper who was killed is actually my client. He feels that it is his Christian duty to forgive the people and he has said so, but by the same token he feels that this Act has got specific requirements and if the applicants apply for amnesty they should meet these requirements and he feels they do not meet them. Thank you Mr Chairman.

CHAIRPERSON: Thank you. Mr Brink is there anything you wish to say?

MR BRINK ADDRESSES COMMITTEE ON MERITS OF APPLICATION

MR BRINK: I shall be brief, because so much has been covered by my colleagues. I am in a lucky position, I do not have to keep you very long. I deal firstly with the first applicant, that is Mr Maxam.

It is my submission that this killing was not or these killings, rather, were not political. He killed in an irrational manner and, on his own evidence, to avoid being identified which has all the hallmarks of a common law housebreaking and robbery. I do not dispute that he was a political activist. I do not dispute that the main motive was to go to the farm to get firearms, but he does not qualify for amnesty, in my submission, in respect of the murders. If the Committee accepts his evidence, (A), that he and others went to the farmhouse in order to obtain firearms and that he, the first applicant, merely stole the bullets in the little red box which he spoke about, then it may well be that he qualifies for amnesty on the housebreaking matter.

As far as the second and third applicants are concerned, my difficulty is that, which I share with Judge Wilson, with respect, and raised by him during my colleague, Mr Lourens's argument, and that is these two applicants had denied, notwithstanding the factual findings to the contrary by the trial court, have denied that they were in any way party to the murders of the two deceased. They have said so here and if that is so they cannot, in terms of the Act, qualify for amnesty in respect of those murders. If they say, notwithstanding the fact, that I was found, we were found guilty of these murders, but we had nothing to do with them. It is unfortunate, but they cannot qualify.

JUDGE WILSON: Problem there is, is it not Mr Brink, that one does not know on what basis the trial court convicted them. What precise findings were made as to common purpose and the trial court may have found common purpose based on some other factors which have not emerged before us.

MR BRINK: Yes, that may well be so Judge.

JUDGE WILSON: Is ...

CHAIRPERSON: The question now is that they have been, in fact, convicted and sentenced.

MR BRINK: They have been convicted and sentenced.

CHAIRPERSON: And sentenced and ...

MR BRINK: Just ...

CHAIRPERSON: ... they are now applying for amnesty as a result of that conviction. They maintain and have indicated the limit of their participation in the actual killings. We are now directing our attention to that aspect of the case.

MR BRINK: Yes, Mr Chairman ...

CHAIRPERSON: You do know that one of the applicants says that he actually told applicant number one not to shoot the gardener. That is an important fact, is it not?

MR BRINK: Yes, but as, Mr Chairman, with respect, as pointed out by Judge Wilson, you, as a Committee, are not a Court of Appeal.

CHAIRPERSON: Pardon.

MR BRINK: You, as a Committee, are not a Court of Appeal.

CHAIRPERSON: I understand.

MR BRINK: And if an applicant says, notwithstanding the fact I was convicted, whatever the basis of my conviction was, I was convicted of murder and housebreaking. I did not commit murder. Then the application is hopeless. It does not matter what basis he was found guilty. He has to tell you that he either the committed the crime and the reason for it or if he says, well, I did not commit it that is the end of the matter. As far as that aspect of his application is concerned, but as far as the housebreaking is concerned, it may well be that if you accept the evidence relating to the motive for going to the farmhouse and stealing firearms you may well consider that to be done with a political objective which is confined only to the housebreaking and robbery and I make no point about the fact that they took money and jewellery as well, because I think it would be fair to assume and in this regard I agree with my colleague, Mr Lourens, that taking money and jewellery would enable them to exchange or purchase arms in exchange for the jewellery and use the money to that end and the balance of the money to support themselves while they were on duty in the townships. So I make no point of personal gain and those in effect are my submissions relating to these applications.

ADV LOURENS: Mr Chairman, without ...

CHAIRPERSON: Mr Lourens.

ADVOCATE LOURENS ADDRESSES COMMITTEE IN REPLICATION

ADV LOURENS: Yes, if I might just one aspect in reply to my learned friends' remarks. I would submit that applicants number two and three, in all probability, do not understand what common purpose is about. I do not think their evidence was a denial of their guilt, as such, as according to how the trial court convicted them. Their evidence for this, before this Committee was about their involvement in the events of that day and that is what I would ask the Committee to consider. Their evidence regarding their own involvement. Thank you Mr Chairman, I have no further submissions.

MR SWART: Mr Chairman, sorry, I have just got the ages of the people. According to the Paarl Post article which appeared on 17 April 1986, Mrs Rolion Foster was 50 years old and then the gardener, according to the farmer, was a pensioner, he was 52 years old.

CHAIRPERSON: Thank you very much. The Committee will make its decision known in due course. Thanks very much for your assistance.

ADV LOURENS: Thank you Mr Chairman.

CHAIRPERSON: The Committee will adjourn and reconstitute itself shortly.

MR BRINK: Mr Chairman, before you adjourn may I see you and the other members of the Committee in regard to the next matter, the procedure to be followed?

CHAIRPERSON: Well, we are adjourning, you can do what you like.

MR BRINK: Very well.

CHAIRPERSON: Yes.

HEARING ADJOURNS