CHAIRPERSON: Before we start the hearing, I think we’d better put ourselves on record as we have been asked to do on many occasions by those recording it. The Committee consists of myself, Judge Wilson, Judge de Jager and Adv Sigodi. Would you please ...
MR ROSSOUW: Thank you Mr Chairman. My name is Fanie Rossouw from the firm Rooth and Wessels attorneys in Pretoria and I represent the applicant, Mr Chris Mosiane.
MR PANDAY: Thank you Mr Chairman. Mr Chairman, I appear on behalf of the victims in this matter, it's Mr Panday, initial S, that is the Nzane family.
MS MTANGA: Chairperson, I am Lulama Mtanga the Evidence Leader. Thank you.
CHAIRPERSON: Right what matter are we starting with today?
MS MTANGA: Chairperson, we are starting with the application of Christopher Gabuklelwe Mosiane, that's reference number AM3768/96.
MR ROSSOUW: Thank you Mr Chairman. The applicant is ready to testify, Mr Chairman, he however prefers to give his testimony in Tswana.
CHAIRPERSON: ...(indistinct - mike not on)
MR ROSSOUW: I believe there's an interpreter.
GABUKLELWE CHRISTOPHER MOSIANE: (sworn states)
MR ROSSOUW: Thank you Mr Chairman.
EXAMINATION BY MR ROSSOUW: Mr Mosiane you are an applicant in this incident, applying for amnesty in respect of two petrol bomb attacks that took place in the Durban area. Do you have a copy of your amnesty application before you?
MR MOSIANE: I do Chairperson.
MR ROSSOUW: Can I just, for the same of formality, as you to start on page 1, is that your handwriting on the formal application?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: And do you confirm the content of that application and also your signature on page 7?
MR MOSIANE: I do, Chairperson.
MR ROSSOUW: Then Mr Mosiane ...(intervention)
CHAIRPERSON: If we are being formal, has the signature been attested?
MR ROSSOUW: Mr Chairman, my apologies, I didn't even pick that up and it would seem that although there's a stamp from the Department of Justice, there's no signature from a Commissioner of Oaths. Mr Chairman, the applicant is under oath today and he has confirmed that it was his handwriting and that he completed the application.
CHAIRPERSON: Well, do you confirm the truth of what is contained in the application?
MR MOSIANE: I do, Chairperson.
MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane then I want you to skip to page 17, all the way through to page 34. Is this a hand-written statement in your handwriting?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: And is it also your signature on page 34?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: And is it correct that this was the annexure to your amnesty application, the part that you've now confirmed the truth of?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: As far as this, the details are concerned, do you also confirm the truth of this statement, which is an annexure to your amnesty application?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Thank you. Mr Chairman, you would have noted that there is just a typed version as well as the hand-written portion, which I do not intend to deal with. Mr Mosiane, then you amnesty application was, merely for the sake of formality also supplemented. I want you to turn to page 47, specifically dealing with this incident, the two incidents that you are applying for amnesty for today. Then I ask you, can you just tell the Committee, in the mid eighties where were you working and in what capacity?
MR MOSIANE: Chairperson at that time I was an askari. I was under the control of the South African Police Services, under C1 Unit, which was in Head Quarters.
MR ROSSOUW: And you were stationed at Vlakplaas, is that correct?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: In 1981 when you were captured in Swaziland, who was the Commander of Vlakplaas at that stage?
MR MOSIANE: I'm not sure Chairperson who was the Commander.
MR ROSSOUW: Fair enough. And Mr Mosiane during this time when the attacks took place in the Durban area, were you working here and what were your orders? What were you doing in the Durban area?
MR MOSIANE: During this incident, Chairperson, I was under the command of Maj Andy Taylor in the Durban area.
MR ROSSOUW: When was this?
MR MOSIANE: ...(indistinct) from Pretoria to help the Special Branch in Durban.
JUDGE DE JAGER: Ja, but when was it, 1900 and what?
MR MOSIANE: It was during the period of this incident which I'm applying for amnesty for.
JUDGE DE JAGER: Yes, that's what I want to find out. When were these incidents? Was it in the year 2000, 1995, when?
MR MOSIANE: It was somewhere in 1985 or 1986.
MR ROSSOUW: Mr Mosiane, you've now said that you were under the command of Col Andy Taylor. Were you in a specific unit from Vlakplaas that operated in this area?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: And who was your commanding officer in that unit from Vlakplaas?
MR MOSIANE: It was Capt Mosse, Chairperson.
MR ROSSOUW: Is it correct to state that when you, as a unit from Vlakplaas, operated in another area of the Security Branch, that you took orders from that Security Branch?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Can you just tell the Committee how did work when you came to this area? Where did you go, where did you get your instructions from?
MR MOSIANE: When we arrived here in Durban, we reported to Maj Andy Taylor. We were supposed to patrol the various areas or townships around Durban, for example Umhlazi and other neighbouring townships. The main intention was that it is possible that we will be able to observe and trace other MK members around those areas. Therefore we would arrest those people and bring them to CR Swart.
MR ROSSOUW: Now, Mr Mosiane, did you receive instructions to attack these two specific houses?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Who gave you those specific instructions?
MR MOSIANE: That is Maj Andy Taylor, Chairperson.
MR ROSSOUW: Now can you tell the Committee what planning was done and preparation for the attacks?
MR MOSIANE: The planning was that Andy Taylor arranged that petrol bombs should be made which were going to be used in these mentioned houses.
CHAIRPERSON: Do you deal with this at page 48 of the papers?
MR MOSIANE: I do see that Chairperson. Maj Andy Taylor made us aware that we should use rubber gloves so that we should not leave our fingerprints on the petrol bombs which we were going to use in those two operations. It happened in that way. He gave us money to buy those hand gloves then later we made those petrol bombs. After that, in the evening, we were taken and showed those targets which we were supposed to attack. The first target belonged to Griffiths Mxenge. We attacked that house. After that we rushed to the second house which I learned that it belong to a certain person who was a member of the Trade Union. We arrived at that particular house and attacked. After the attack we ran away and returned to C R Swart where we were accommodated. Then we gave a full report to Maj Andy Taylor.
MR ROSSOUW: Mr Mosiane and can you tell the Committee who accompanied you on these two attacks?
MR MOSIANE: Because we did not know those areas, we were directed by members of the Special Branch under the command of Andy Taylor.
ADV SIGODI: But who took you there?
MR MOSIANE: We were accompanied by Spyker Myeza, he was a Warrant Officer then and Mike Lembede, he was a Warrant Officer then at Modabasi and also he was a Warrant Officer then. Those are the people who were working with Andy Taylor, who accompanied us during these operations.
CHAIRPERSON: Mr Mosiane, when you say that they accompanied you, who were the other members of the Vlakplaas unit who went with you?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Sorry, who were they? Can you name them? Can you give the Committee the particulars of who were the other members of Vlakplaas who went with you?
MR MOSIANE: It was Nicholas Dube, Basil Moshengo Mavuso, we were three and other three members from the local Special Branch.
MR ROSSOUW: Mr Mosiane, let's first deal with the attack on the Mxenge house. Can you describe to the Committee what was the set-up there and how did you carry out that attack? Can you give that description to the Committee?
MR MOSIANE: The house was situated at a corner in Umhlazi. It had a wall fence. We went to the back part of the house. I'm able to recall that there was a wall at the back and its height is at the chest level. During that night we had petrol bombs. It was Basil Moshengo Mavuso, Nicholas Dube, Modabasi and myself. I mean those who had petrol bombs on there person. Spyker Myeza and Mike Lembede, they were making observations whilst we were attacking the house. The four of us laid the petrol bombs and threw them at the house. After we threw the petrol bombs, we left and entered the car and went to the second house.
JUDGE DE JAGER: Now let's go back to the bombs being thrown. Were they thrown into the house? Was there an open window? Did you break a window? What did you do? Where did you drop the bombs?
MR MOSIANE: Chairperson, we did not enter the yard. The wall fence I've mentioned, if you are next to that fence, you are able to see the back door and the window. We threw the petrol bombs whilst we were outside the yard. We were direction those petrol bombs to the back door and the back window.
MR ROSSOUW: Mr Mosiane, can you give the Committee an indication as to what time of the night this attack took place?
MR MOSIANE: Chairperson, I did not have a watch, but my estimation would be around 11 o'clock to 12 o'clock at night.
MR ROSSOUW: Were there lights on inside the house?
MR MOSIANE: No, Chairperson, I did not see lights.
MR MOSIANE: Did you watch to see if the house caught fire and did you watch the flames go up?
MR MOSIANE: After the attack, we did not stay for a while, we just left immediately after we threw the petrol bombs.
MR ROSSOUW: Can you say that the petrol bombs actually went into the house through a window?
MR MOSIANE: It was possible that some of them were thrown inside the house through the window. If I remember well there's one which exploded.
MR ROSSOUW: Right Mr Mosiane, you've left - you said that you went to the second target which was shown to you. Can you just describe to the Committee what took place there? How did the attack - how was it carried out?
JUDGE DE JAGER: Mr Rossouw, before we proceed to the second house, we've got evidence now of a petrol bomb attack on a house. Were they aware that there were any occupants in the house? Did they foresee injury to persons or did they merely attack a house? Should we give amnesty, if we should decide to give amnesty, for damage to property or for attempted murder? What's the position, what is he asking for?
MR ROSSOUW: Mr Chairman, I thought I'd argue that on probabilities, but let me deal with that in questions.
JUDGE DE JAGER: Ja, if there were no persons in there, you can't argue on probabilities unless you lay the foundations that there were no people present, or there were people present at least.
MR ROSSOUW: I'll do my best to clear that up. Mr Mosiane, were you informed by either Mr Taylor or the members of the Security Branch, the Durban Security Branch, who the occupants of that house were, Mr Mxenge’s house?
MR MOSIANE: It was never explained to us who were the occupants of the house.
MR ROSSOUW: Were you told that there were actually occupants of the house, that there were people staying there?
MR MOSIANE: No, Chairperson. The explanation I had is that this house was used for meetings by activists who were active then.
MR ROSSOUW: Mr Mosiane in the light that you knew that meetings took place there, did you think that there might be people inside the house when you attacked it?
MR MOSIANE: At the time of the attack, it did not come to my mind that there would be occupants in that house.
ADV SIGODI: Why?
MR MOSIANE: Because when we arrived there it was dark, there were no lights.
ADV SIGODI: But it was in the middle of the night.
MR MOSIANE: It is true Chairperson, but it was in the middle of the night.
ADV SIGODI: So despite the fact that it was in the middle of the night, you didn't expect to find any people in the house, in your mind, when you went there. You were not expecting to find the house with people?
MR MOSIANE: Chairperson, at that time I did not think that there would be people, or there would not be people.
ADV SIGODI: And when did you learn that the house that you had attacked belonged to Mr Mxenge?
MR MOSIANE: I knew before the attack.
ADV SIGODI: Did you know Mr Mxenge before the attack?
MR MOSIANE: Do you mean personally or how?
ADV SIGODI: No, what I mean is, you were previously an ANC member, were you not?
MR MOSIANE: That is correct, Chairperson.
ADV SIGODI: So being an ANC MK member, did you not know Mr Mxenge?
MR MOSIANE: I did not know him personally, but I learned about him.
ADV SIGODI: So when you were bombing his house, you still say that you did not expect to find people in his house?
MR MOSIANE: At that time, I did not think whether there would be people or there would not be people inside the house.
CHAIRPERSON: As I understand your application and what you've told us earlier, you thought these houses were used as meeting places by activists.
MR MOSIANE: That is correct, Chairperson.
JUDGE DE JAGER: Do you know whether he was actually living at this house, or did he live elsewhere?
MR ROSSOUW: Sorry, Mr Chairman, I'm under the impression and I might be wrong here, we can clear that in evidence, but I believe that at the time of the attack, Mr Mxenge had already been murdered.
JUDGE DE JAGER: I don't know when the attack was, he can't give us the date of the attack, it's 1985, 1986.
MR ROSSOUW: May I, with your leave, explore that? Mr Mosiane, do you know whether - you've said that you didn't know Mr Mxenge personally, but what information did you have about him at the time of this attack?
MR MOSIANE: During this attack I knew that the late Griffiths Mxenge was murdered earlier by the Special Branch. I knew that he was murdered by members of Vlakplaas who were under the command of Dirk Coetzee and then again I knew that when we were going to attack this house, his wife has since died.
MR ROSSOUW: Are you saying that his wife died before or after this attack?
MR MOSIANE: When we were going to attack this house, Mr Mxenge had already died.
JUDGE DE JAGER: Were his children still staying at the house?
MR MOSIANE: I don't know, Chairperson.
JUDGE DE JAGER: Did you, on leaving the house or afterwards, think that there might have been people killed in that attack, or before you went there, did you envisage perhaps somebody could be sleeping there and could be killed?
MR MOSIANE: It is possible that there could have been a person in that house, but I have no information in that regard.
CHAIRPERSON: Well despite what our counsel said earlier about arguing, I see that you stated in your supplementary statement, that you're applying for amnesty for arson, malicious damage to property, or any other offence or delict that can be inferred from the facts. You don't think you were likely to have killed anybody there, do you?
MR MOSIANE: It is possible, Chairperson.
JUDGE DE JAGER: No, we know anything is possible, but we've got to decide. You've applied now for amnesty for arson and anything flowing from that, so you're not applying, let's have that clear, you're not applying for attempted murder, you're applying for arson.
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane then can we move to the second house and can you describe to the Committee how the attack was carried out on the second house?
CHAIRPERSON: We started this hearing late this morning because everyone was preparing, but it struck me that certain members of the public may have been here for some time. It might be convenient for them if we take the adjournment now at the normal time, so we will take the adjournment before we get on to the other house. We'll take the short adjournment now. If you want to leave here for a few minutes, you're at liberty to do so.
COMMITTEE ADJOURNS
ON RESUMPTION
GABUKLELWE CHRISTOPHER MOSIANE: (s.u.o.)
MR ROSSOUW: Mr Chairman, I have seen my Learned Colleague leave with his suitcase. I've seen my Learned Colleague, on behalf of the Mxenge family, leave with his suitcase.
CHAIRPERSON: He's not here now ...(indistinct - mike not on)
JUDGE DE JAGER: Did he perhaps indicate whether he's opposing the application or not?
MS MTANGA: Chairperson, he will be asking some questions based on his instructions on the ...(indistinct) that he got from the client this morning. The interpreters are informing me that he went to his car.
MR ROSSOUW: Thank you Mr Chairman.
EXAMINATION BY MR ROSSOUW: (cont.)
Mr Mosiane we're now on the way to the second attack. Can you tell the Committee how this attack on the second house was carried out?
MR MOSIANE: When we arrived at the second house, I observed that it was a four roomed house and it did not have a fence. We entered the yard. We went around the house to the back side, then we started throwing the petrol bombs from the back. We were throwing them through the window. I saw that there was one back window and one back door. Those who threw the petrol bombs were myself, Nicholas Dube and Mavuso Tshabalala. There is an ...(indistinct) light near that house, therefore there would be light on the surrounding houses.
MR ROSSOUW: Were you able to see anything that happened there in the light which was thrown from this lamp post?
MR MOSIANE: Yes, Chairperson, I was able to see.
MR ROSSOUW: Now what transpired further?
MR MOSIANE: Whilst we were throwing the petrol bombs, one person started screaming inside the house. Whilst he was screaming, it seems as if he wanted to go through the door and run away. One among us started shooting with a pistol, then that person went back inside the house. Whilst this was happening, we threw those petrol bombs quickly and started running away from that area, when inside the car and returned back.
MR ROSSOUW: Now Mr Mosiane, did you have a firearm with you?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Did you fire your firearm?
MR MOSIANE: No, Chairperson.
MR ROSSOUW: Are you able to say who the person was in the group who fired his firearm?
MR MOSIANE: No, Chairperson.
CHAIRPERSON: Did you know that other people in your group were armed?
MR MOSIANE: Yes, Chairperson.
MR ROSSOUW: Mr Mosiane, did I understand you correctly? After you saw this person or heard him screaming inside the house, you still proceeded after that to throw petrol bombs through the window?
MR MOSIANE: That is correct, Chairperson.
MR ROSSOUW: Now let's just deal with this, Mr Mosiane. Your instructions that you received from Mr Taylor, were those instructions to kill anybody?
MR MOSIANE: No, Chairperson.
MR ROSSOUW: Now why did he single out these two houses? What was the reason for the attacks?
MR MOSIANE: I was informed that that person belonged to a particular Trade Union and in regard to the first house, I was informed that it was used for meetings, it was used for secret meetings.
MR ROSSOUW: By whom?
MR MOSIANE: By members of UDF etc. or other members of the Trade Unions.
MR ROSSOUW: Mr Mosiane in your application you've stated on page 49 under the heading political objective, that the purpose of the attacks were to intimidate the political activists, do you see that?
MR MOSIANE: That is correct, Chairperson, I do.
MR ROSSOUW: Do you confirm that section of your amnesty application specifically with regard to the political objective?
MR MOSIANE: I do, Chairperson.
MR ROSSOUW: Now let's just deal with ...(intervention)
CHAIRPERSON: While we're on that point, you've also said the damage to property was foreseen.
"Griffiths Mxenge and his family were the victims regarding the attack on his house.
That doesn't make sense if you knew he was already dead. What's your comment.
MR MOSIANE: I do not understand the question, Chairperson.
CHAIRPERSON: You say in your statement there, or your particulars, that the purpose of the attacks was to scare activists and not to injure or kill anyone. Damage to property was foreseen.
"Griffiths Mxenge and his family were the victims regarding the attack on his house. I cannot recall the name of the other activist whose house was attacked."
That would appear to indicate that you thought Griffiths Mxenge would suffer damage as a result of the attack on his house, he would be a victim.
MR MOSIANE: There was a mistake, Chairperson, when this was typed. I do not agree with it.
CHAIRPERSON: Thank you.
MR ROSSOUW: Thank you Mr Chairman. Mr Mosiane, then you've testified where you received your orders, from Mr Taylor, Col Taylor. Now were you in a position to question those orders that you received?
MR MOSIANE: It was not possible, Chairperson, to question those orders.
MR ROSSOUW: Why not?
MR MOSIANE: Yours at that time was to receive orders as given. Anything which you would ask would be in regard to information.
MR ROSSOUW: Mr Mosiane, did you receive any additional remuneration or any reward for your participation in these two attacks?
MR MOSIANE: No Chairperson.
MR ROSSOUW: And did you partake in these attacks through ill will or malice towards the victims?
MR MOSIANE: No, Chairperson.
MR ROSSOUW: Mr Mosiane is there anything that you would like to add to express yourself today in respect of the families and the victims?
MR MOSIANE: Yes Chairperson. To the families of Mr Mxenge, I ask for forgiveness from the depth of my heart because I know and understand well that they suffered for a long time because they were freedom fighters. I was used in an inhuman way to oppress freedom fighters like members of the Mxenge family. With those words, you would recall that these terrible acts which I took part in were not directed particularly to the Mxenge family only, but they were directed to each and every person who took part in the struggle, therefor in this way I say I did not affect the Mxenge family only, but I was put in that position because I struggled, then I was fighting against myself, that is why I understand the pain they suffered, they endured, through the acts of the previous Government and again this person whom it has been said that he was a member of the Trade Union, whom we were forced to attack his house by fire, he was the same as the Mxenge family. His problem was because he was fighting against the oppressive Government. Even to him or to his family I request for forgiveness, because he's no way different from the Mxenge family. I've already stated that the reason for attacking his house was because he was against apartheid. I've nothing personally against him. The people I ask forgiveness from have an opportunity and an ability not to forgive me. I would not complain, because I understand the situation they were in during these incidents. I would end by saying I suffered a lot. This would be a mark in my life, I would not forget this. Even if they may forgive me, I will not forget this. That is all, Chairperson.
MR ROSSOUW: Thank you Mr Chairman, that's the evidence-in-chief.
NO FURTHER QUESTIONS BY MR ROSSOUW
JUDGE DE JAGER: ...(indistinct - mike not on)
INTERPRETER: The speaker's mike.
JUDGE DE JAGER: Did you join the Security Police out of your own free will?
MR MOSIANE: I was forced to join, Chairperson.
JUDGE DE JAGER: What did they do to you to force you to join them? Why do you say you were forced to join them?
MR MOSIANE: You would be aware Chairperson that I was abducted from Swaziland and brought to the Republic. When I was kidnapped, I was a member of Umkhonto weSizwe. When I was abducted from Swaziland, I had only two options, to collaborate with them, or disappear.
JUDGE DE JAGER: And if you say disappear, what do you mean? You had to collaborate or be killed, or what do you mean?
MR MOSIANE: I mean be killed, like those who were killed.
JUDGE DE JAGER: And at a later stage for instance when you were here in Durban, why didn't you escape and go back to the ANC?
MR MOSIANE: That would not help, Chairperson. Chairperson, I will be obliged to be direct and short and inform you that when we talk about the previous Government, they had overwhelming powers, they had infiltrated ANC, in other words they were controlling the ANC from inside in that way and with those reasons. Yes, it is true that I would run away and rejoin the ANC, then the enemy inside the ANC would bring me back to the Republic as they did with my co-comrades.
JUDGE DE JAGER: ...(indistinct - mike not on) stated somewhere what happened to, was it Justice Negede, who went back to the ANC, is that the correct name?
MR MOSIANE: That is correct, Chairperson.
JUDGE DE JAGER: What happened to him when he went back?
MR MOSIANE: He was returned to the enemy camp.
JUDGE DE JAGER: Was he assaulted, or what happened to him?
MR MOSIANE: Justice Negede was assaulted in such a way that members who re-arrested him had no reason to continue with the assault. He returned being assaulted. He had terrible injuries because they did not believe that he escaped or not, then he was returned.
JUDGE DE JAGER: So in fact you were between two fires. If you went back the ANC wouldn't believe that you escaped and voluntarily came back to them, they would still have suspicions that you're an askari, being a spy now planted back into their midst. Would that be correct?
MR MOSIANE: That is correct, Chairperson.
JUDGE DE JAGER: So you, in fact once you've landed in that situation, you didn't even have a choice either to go back or to go forward or be killed on either side, that was the only choice?
MR MOSIANE: That is correct, Chairperson.
JUDGE DE JAGER: Thank you.
CHAIRPERSON: Right any questions?
MR PANDAY: Yes, Mr Chairman. First we apologise for having been slightly delayed.
CROSS-EXAMINATION BY MR PANDAY: Mr Mosiane, the way I understand your evidence is that obviously it was out of necessity that you joined the askaris, is that correct?
MR MOSIANE: That is correct, Chairperson.
MR PANDAY: Do I further understand it that in no way did you support any of their objectives?
MR MOSIANE: That is so, Chairperson.
MR PANDAY: Now would I be correct in assuming that whilst with the askaris, you received remuneration either in the form of a salary or money of some sort for living?
MR MOSIANE: That is so, Chairperson.
MR PANDAY: Now at the same time, would you consider that you were now a hired person? Would you consider yourself to have been a hired person at the time?
MR MOSIANE: No, Chairperson, that's a big mistake.
MR PANDAY: What would you have considered your position in the Askari as?
MR MOSIANE: I considered myself as a person who was in a catch 22 situation.
MR PANDAY: So at the time, did you still believe in the principles of the ANC whilst being an askari?
MR MOSIANE: Yes, Chairperson.
MR PANDAY: At present?
MR MOSIANE: I haven't changed, Chairperson.
MR PANDAY: So would you agree that your benefit was purely for the purposes of saving your hide?
MR MOSIANE: Chairperson, you should understand that I had no other options. I had no choice. Otherwise I personally would have joined the police, I wouldn't even worry to go to the ANC in exile to become an MK combatant, so it is very incorrect to suggest or assume that I benefited, therefore I relished that.
MR PANDAY: Well it is the victim's contention that you obviously benefited in that you were saved from being killed and as such you had no political basis, your actions weren't politically based as such.
MR MOSIANE: I do not understand you when you say there was no political motivation. In which way? Can you please rephrase the question so that I understand it Chairperson?
MR PANDAY: Let me rephrase it. If you are an MK member and the ANC ask you to carry out an operation, you would have done that, isn't that correct?
MR MOSIANE: Yes, Chairperson.
MR PANDAY: Because you identified with the values and the principles of the ANC, is that correct?
MR MOSIANE: That is correct, Chairperson.
MR PANDAY: Now by joining Vlakplaas, that was not done because you identified with any values, or principles of the Apartheid Government, is that correct?
MR MOSIANE: Okay Chairperson, let's start there. I had no option, you must be careful on that one.
MR PANDAY: So would you therefore agree then that if in the event that you had to be prosecuted for any acts arising out of your actions, you would then have to raise a defence of that being necessity, you had no option?
MR MOSIANE: That is so Chairperson.
MR PANDAY: Thank you. Now Mr Mosiane, you were more permanently based in the Transvaal, is that correct, when you were part of Vlakplaas?
MR MOSIANE: No.
MR PANDAY: Where did you normally - where were you normally based?
MR MOSIANE: I was based in Pretoria, but I was not working in Pretoria all the time.
MR PANDAY: Okay, that's fine. Now when you came now to Durban to carry out the operation, you were obviously briefed by your superior, Andy Taylor, that you need to go and carry out the operation, is that correct?
MR MOSIANE: That is correct, Chairperson.
MR PANDAY: Now did you all do any reconnaissance work before you carried out the operation?
MR MOSIANE: The members of Mr Taylor had already undertaken reconnaissance, that is what I believed Chairperson.
MR PANDAY: Now the people that went with you to carry out the operation, did any of them, were any of them involved in the reconnaissance work?
MR MOSIANE: Are you referring to the people from Vlakplaas?
MR PANDAY: No, no, I'm talking about the people that accompanied you on the day the houses were petrol bombed, those that were present, did any of them do any reconnaissance work?
MR MOSIANE: These people were from the Special Branch here at CR Swart, they knew Durban in full. Spyker Myeza knew Durban and other areas surrounding Durban, Umkabazi as well as the place and Mike Lembede knew the place.
MR PANDAY: No, who knew about the Mxenge house? Who would have been able to tell you that there's one person, two persons, or there's no guards, nothing?
MR MOSIANE: The person who was driving the vehicle that took us to those places was Spyker Myeza.
MR PANDAY: So did he tell you what to expect or not to expect at the Mxenge house?
MR MOSIANE: No, Chairperson.
MR PANDAY: Were you not concerned that if you landed at the Mxenge house that you could have been killed, had there been people guarding that house?
MR MOSIANE: No, I don't think we were concerned about that, I never thought about that Chairperson.
MR PANDAY: Why would you say you were not concerned about that?
MR MOSIANE: Chairperson, in this type of an operation, what was in my head personally was to carry out the instructions that I was given.
MR PANDAY: Mr Mosiane, would you agree that before one goes and carries out any operation, they would need to know what they're going to come up against?
MR MOSIANE: Yes, I do agree with you, Chairperson.
MR PANDAY: So would you agree also for that operation to be successful, you would have had to know certain information about the place you're going to attack?
CHAIRPERSON: You were taken there by three Warrant-Officers in the Security Police, is that correct?
MR MOSIANE: That is correct, Chairperson.
CHAIRPERSON: You'd been told by a Major in the Security Police that you must attack these houses with petrol bombs?
MR MOSIANE: That is correct, Chairperson.
CHAIRPERSON: And they took you to the houses, they got out with you, the Warrant-Officers?
MR MOSIANE: That is correct, Chairperson.
CHAIRPERSON: And you carried out the orders you had been given?
MR MOSIANE: That is correct, Chairperson.
MR PANDAY: Now Mr Mosiane, do you recall the month that you attacked the Mxenge property?
MR MOSIANE: No, I do not remember the month, Chairperson, otherwise I would have written that in my application for amnesty. I really do not remember, Chairperson.
MR PANDAY: I'm going to put it to you that the attack was carried out in August, the first week, toward the middle of the second week of August. Would one be wrong in that?
MR MOSIANE: I would not disagree with you Chairperson.
JUDGE DE JAGER: And the year?
MR PANDAY: It was 1985, I understand, Mr Chair, 1985. Now you mentioned in your evidence that you understood the mother, Mrs Mxenge to have been deceased. How did that information come to your knowledge?
MR MOSIANE: There was a time when I was discussing with Michael Lembede and he told me that Mrs Mxenge was killed.
MR PANDAY: Now was she killed before you went to attack this place, or after?
MR MOSIANE: That is before, Chairperson.
MR PANDAY: Right. Did you not discuss when she was killed?
MR MOSIANE: No Chairperson, what I meant was that she was killed after Mr Mxenge, that is Griffiths Mxenge.
MR PANDAY: Now you see, after having consulted with the son, Mabasa Mxenge, he says that his mother died on the 1st of August of that year, 1985 and this attack was carried out about a week, a week and a half after the mother's death.
MR MOSIANE: I would not dispute that Chairperson.
MR PANDAY: Did you know whether there were any children of the Mxenges?
MR MOSIANE: No, Chairperson.
MR PANDAY: And on consultation with Mr Mabasa, that at the time of the attack it was him, his brother and the old lady that was taking care of them, who were in the house.
MR MOSIANE: I would not dispute that fact, Chairperson.
MR PANDAY: Now just one or two more questions. When you went to attack this house, did you know it was a residence, it was a home that you were going to attack?
MR MOSIANE: Yes, Chairperson.
MR PANDAY: And do you accept that one would have foreseen there to have been people in the house?
MR MOSIANE: Yes, I do, Chairperson.
MR PANDAY: Thank you. Nothing further Mr Chairman.
NO FURTHER QUESTIONS BY MR PANDAY
CHAIRPERSON: ...(indistinct - mike not on)
MS MTANGA: Yes, Chairperson, I have a few questions.
CROSS-EXAMINATION BY MS MTANGA: Mr Mosiane, you've testified that when you went on these two operations, you were with W/O Lembede, Myeza and a third person, have you ever seen these three officers after the incident, the attack on the Mxenge house?
MR MOSIANE: No Chairperson.
MS MTANGA: How long before the attack on the Mxenge house were you brought from Vlakplaas and placed in Durban? Can you recall how many days before the attack?
MR MOSIANE: I do not recall, Chairperson.
MS MTANGA: Mr Mosiane, the death of Mr Mxenge around the 1st of August 1985, was quite a big incident in Durban at that time. Do you know if - were you around Durban on that day, or were you not, because if you worked for the Security Forces you would have known about the attack.
MR MOSIANE: I do not recall, Chairperson.
MS MTANGA: You mentioned that the second house that was attacked, belonged to a Trade Unionist.
MR MOSIANE: That is how we were told, Chairperson.
MS MTANGA: Was it explained to you how would this Trade Unionist become a political target by your unit, that is the Vlakplaas unit?
MR MOSIANE: Chairperson, you will remember that during those days black people who were against the oppressive government, members of the UDF, Trade Unionists, were regarded by that government as the enemy of the then government.
MS MTANGA: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
MR ROSSOUW: No re-examination Mr Chairman.
NO RE-EXAMINATION BY MR ROSSOUW
ADV SIGODI: In total how many petrol bombs did you have?
MR MOSIANE: I do not recall, Chairperson, because we used some in our first target, that is at Griffiths Mxenge’s house and the remaining ones, we used at the second house. I do not remember how many petrol bombs we had Chairperson.
ADV SIGODI: Do you know how many you threw at Mxenge’s house?
MR MOSIANE: No, Chairperson.
ADV SIGODI: You personally, on your own, how many did you throw?
MR MOSIANE: I threw about two, Chairperson.
ADV SIGODI: And then at the second house, how many did you throw?
MR MOSIANE: It could be two again, Chairperson.
ADV SIGODI: And you say that the other people who were with you, also threw petrol bombs at the house?
MR MOSIANE: That is correct, Chairperson.
ADV SIGODI: So in total, there could have been more than at least four petrol bombs in one house at a time? Two from you and a minimum from of one from the other two people?
MR MOSIANE: Well, Chairperson, I would not dispute that.
ADV SIGODI: And your knowledge about - I mean these petrol bombs that you had, how powerful were they?
MR MOSIANE: I will only talk about their sizes, Chairperson, but I would not be able to tell you about the technicalities involved in the power of it. We used a 750 ml bottle.
ADV SIGODI: So you have no idea how many petrol bombs you would need to destroy a house?
MR MOSIANE: No, Chairperson.
ADV SIGODI: And how long did it take you to drive from Mr Mxenge’s house to the Trade Unionist's house, how far was it?
MR MOSIANE: I wouldn't be able to estimate, Chairperson, but it did not take us long because we did these two operations in one night.
ADV SIGODI: And he also stayed in Umhlazi, this other person, this Trade Unionist?
MR MOSIANE: I believe so, Chairperson.
ADV SIGODI: Okay. Thank you Chairperson.
CHAIRPERSON: We've been talking about petrol bombs, but were these bottles, glass bottles full of petrol?
MR MOSIANE: Yes, Chairperson.
CHAIRPERSON: And did you have something protruding from the top which you lit before you threw it?
MR MOSIANE: Yes, Chairperson.
CHAIRPERSON: There were no explosives, or was there?
MR MOSIANE: No Chairperson, there were no explosives inside.
CHAIRPERSON: Thank you.
MR ROSSOUW: That's the evidence for the applicant, Mr Chairman.
WITNESS EXCUSED
MR PANDAY: I have no further questions and we would not be calling any witnesses, Mr Chairman.
MS MTANGA: No evidence, Chairperson.
MR ROSSOUW: Thank you Mr Chairman. I'll be brief, unless there is something specific that the Committee wishes to hear me on.
MR ROSSOUW IN ARGUMENT: Mr Chairman, I submit that this applicant has complied with the requirements of Section 20 of the Act in submitting his application. I submit that he is covered under Section 20 (2) (b), being an employee of the State. Mr Chairman, you've heard that he received his salary and I will submit that the Amnesty Committee has heard ample evidence concerning the position of askaris at Vlakplaas. Mr Chairman, that would cover him and I submit, Mr Chairman,
that he has made a full disclosure today of the relevant facts within his knowledge pertaining to these two incidents. Mr Chairman, the one issue that remains is political objective and from the questions asked by my Learned Colleague, I wish to address you on that aspect specifically.
Mr Chairman, having regard to the requirements of the Act, political objective should be seen also in the light of the order that was received and I submit that Section 20 (2) (b) makes that very clear, Mr Chairman and there can be no question that there was a carrying out of orders in the bona fide belief, Mr Chairman, that it was aimed at an opponent of the State or a member of the struggle against the existing regime. Now Mr Chairman, I would submit that here we should not try and split hairs as to whether a person subjectively supports that is a different question as to whether you believe that the order that you're carrying out is aimed at achieving a specific purpose and Mr Chairman I submit that there can be no question here that the orders that were given by a Colonel in the Security Branch, whose members identified the targets and it was carried out by the foot soldiers, Mr Chairman, there can be no question that under those circumstances the attacks were aimed against supporters or members of the struggle and the liberation struggle in a broad sense. Mr Chairman, we all know that that was the aim of the Security Police, that was the main objective that they tried to ...(intervention)
JUDGE DE JAGER: I don't think that's the problem which I envisage. I think the problem would be, what was his motive, he himself? He wasn't - he didn't regard the ANC as his personal enemy, he regarded them as an enemy of the State, so did he have the motive to support the State or was he - what he told us that he still believed in the principles of the ANC, so in acting against them, he actually acted against his own people, but also against enemies of the State, in whose employ he was at that stage and would that make a difference as far as his application is concerned?
MR ROSSOUW: I would submit not, Mr Chairman. It's clear that what we have here is whether it is a foot soldier who follows orders and carries them out without being placed in possession of the knowledge and the information as to the aims to be achieved by the Generals, Mr Chairman, as we heard on numerous occasions, the need to know basis would similarly apply to a person in the position of Mr Mosiane who carried out the order.
JUDGE DE JAGER: ...(indistinct - mike no on)
INTERPRETER: The speakers mike.
JUDGE DE JAGER: ... an ordinary policeman who didn't support the policies of the Government, he wasn't a member of the ruling party for instance. He might have been a member of an opposition party at that stage and he carried out orders, would you say he had the objective of fighting the enemy of the State? My - I want to have clarity on this. It was a fight against the enemies of the State, not against his personal enemy. He obeyed orders because he was in the employ of the State. He might have been a member, not of the Nationalist Party for instance, but he believed he had no choice but to obey the orders of his superiors and would you say he would then fall within a category entitling him to get amnesty?
MR ROSSOUW: Yes, I would submit that would be the case, Mr Chairman. If I can take it one step further, if we take a Security Policeman who is not a member of the Nationalist Party, who does not necessarily support the views of the Government of the day, at that stage, but is being used through the orders given to him, in a chain of events which led to the COSATU House bombing, Mr Chairman, this was the person who supplied the vehicle, or was one of the links in the chain, but was not privy to the decision making or the carrying out, eventually, would he be disqualified from getting amnesty, Mr Chairman, under those circumstances where he was deprived of the knowledge, where he was not placed in possession of the facts and the total aim to be achieved? I would submit that you can't disqualify him. Now Mr Chairman, I know that there's a debate as to the Norgaard principles, which say you must look at the subjective view with which I think so many Security Policemen will be entitled to amnesty, if they subjectively believe, but Mr Chairman, there's always, always an objective question involved and I can just refer to the amnesty application of Michael Bellingan, who subjectively might have believed that murdering his wife might achieve some political end, but objectively it's impossible, so Mr Chairman, under those circumstances I would say let's look at the objective facts here and what we know is that the two houses were identified. There's no dispute that it was used by activists. There's no evidence to suggest that the second house was not that of a Trade Unionist and it was targeted by the Security Branch in Durban. A high ranking official, the Commander I believe at that stage of the Security Branch, gave the order. Objectively, Mr Chairman, I submit that it's clear that the aim to be achieved here, was for intimidation and whether you support that, whether you say that it's right or not, is a totally different question and I submit it merely lies, as far as Mr Mosiane is concerned, on a question of whether he was in a position to judge it as right or wrong. He obviously thought it was wrong. He obviously did not support it in that sense of a moral value on his own side, on his own personal side Mr Chairman, but I think that subjectively he knew and he foresaw that it was with the aim of intimidating members of the liberation struggle, opponents of the then Government of the day.
I submit that on those grounds, Mr Chairman, that he is entitled to amnesty. If one has regard to Section 20 (3) which deals with the further aim or identifying the political objective, I submit Mr Chairman that one has to look at the aim to be achieved here, that is also one of the factors listed in the Act and the aim here was clearly to intimidate. Now those, Mr Chairman, I submit are pure objective factors, which are mentioned in the Act. I know that some of my colleagues will argue that it is purely subjective, but there is an element of objectivity there and the aim to be achieved here, I think, is not in dispute.
Unless there is anything else that the Committee wishes me to address them on, Mr Chairman, I don't think I have any more submissions.
CHAIRPERSON: Who was to be intimidated? I'm thinking now of the Mxenge house. We have evidence that Griffiths Mxenge had been murdered by the Security Police. Because his wife had shortly before this incident, the family had ceased to exist. Why attack the house?
MR ROSSOUW: Mr Chairman, in fact the only evidence before the Committee is that the house was used by activists as a meeting place, that is not in dispute.
CHAIRPERSON: Was that still so?
MR ROSSOUW: Well Mr Chairman, that was at the very least the information conveyed to the applicant. Whether that was in fact so or not, he will not be in a position to testify, but I submit that there's no evidence to suggest otherwise. As far as the Trade Unionist is concerned, Mr Chairman, you've heard that it was the UDF members, I think, which were aimed at, at that time.
MR PANDAY: Thank you Mr Chairman.
MR PANDAY IN ARGUMENT: Mr Chairman, I submit that the applicant firstly finds itself in a very unique situation in that for one to satisfy a soldier carrying out orders, firstly that soldier had to be a wilful soldier. Now the applicant, we've heard, was not a wilful soldier. His choice was one of two, you either join us to attack the ANC, or you disappear. That is how his position stood. Now the applicant had to make a decision, which was obviously, even according to his papers, obvious the former decision, being just join Vlakplaas. Now by joining Vlakplaas, he in no ways supported the view of the Government, right, he merely joined them to save himself. Now that as such, has no political bearing, it only has personal benefit. The benefit he got from that was life. Now should the Committee decide not to give the applicant amnesty and obviously if in any event the applicant is prosecuted for some reason or the other
for his acts, then it is quite simple, his defence would be that it was out of necessity. I had a choice. My life, or I support the actions of a force superior to me. The force superior to him was Vlakplaas.
JUDGE DE JAGER: But in necessity, if I were to, in a Court of Law, defend myself on the fact of necessity and the basis would be an illegal order, would I succeed?
MR PANDAY: At the best on an illegal order?
JUDGE DE JAGER: Ja because the order, there's no doubt that the order to commit arson or to throw petrol bombs, was an illegal order.
MR PANDAY: But Mr Chairman I think if one looks at the order, the order coming from a superior, that may not necessarily have been an illegal order.
CHAIRPERSON: Why not? We did not recognise in this country at that time the right of the police, no matter how senior, to burn people's houses.
MR PANDAY: Okay. Mr Chairman, I would submit, even should one raise the defence of necessity, the applicant will still succeed, because invariably he had someone controlling him, he was being controlled by his superiors, Andy Taylor and so forth, so even in those circumstances, although the order be illegal from Andy Taylor, Andy Taylor had control over the applicant, and I'll submit that the applicant will still succeed on such a defence, even though that order being illegal. May I proceed Mr Chair? Right now, the applicant obviously finds himself in a unique situation. He is not from any political - he accepts that he was an ANC man, who still supported the principles of ANC, but merely joined out of saving himself and as such, Mr Chairman, he was not a wilful participant of Vlakplaas and I respectfully submit that he not qualify for amnesty and does not fulfil the requirements.
CHAIRPERSON: None of the askaris would then be justified in applying for amnesty, is that your contention?
MR PANDAY: Mr Chairman, I'll concede that if the askaris obviously changed their political beliefs as well, then the situation would be reversed.
CHAIRPERSON: Most of the evidence, I can't say everyone, is that they were compelled to act as askaris, they were compelled to serve in the police force.
MR PANDAY: I'll concede that point, Mr Chairman.
JUDGE DE JAGER: The position would then be that we would grant amnesty to people who out of their own accord willingly murdered people, but we wouldn't grant amnesty to a person who was forced to serve the old regime.
MR PANDAY: I see the predicament that the Committee would find themselves in. It would almost have to be drawing a model
conclusion as of course the conclusion must be drawn in terms of the section.
MS MTANGA: Chairperson, I have no submissions, I will leave this matter in your hands.
NO ARGUMENT BY MS MTANGA
MR ROSSOUW IN REPLY: No, Mr Chairman, maybe just to say, when we talk about control and the applicant was an instrument, it comes quite close to the vicarious liability doctrine and maybe even on that argument, one can argue that the intention of the State can be imputed here through the tool which was used, but I think that's a little far fetched. Mr Chairman, I have nothing further except the list that you've asked me of applications in which the applicant was, I've been able to compile that.
CHAIRPERSON: We're obliged to you for your assistance in that regard.
JUDGE DE JAGER: Has everything been dealt with? ...(indistinct - mike not on)
MR ROSSOUW: This is his last application, everything has been dealt with and I've tried to give you an indication as to who was the presiding officer at the various hearings throughout the country.
CHAIRPERSON: The Committee will take time to consider its decision. Should we adjourn now or should we start the next matter? We'll obviously, if we start the next matter, we'll only get a bit of the applicant's version. What would you rather do?
TAPE TURNED OFF
MS MTANGA: Chairperson if I may correct that, Mr Harkoo was consulting with his client in that room, so you can proceed with this matter.
JUDGE DE JAGER: Or could we have lunch and proceed say at half-past one?
MS MTANGA: I'm not sure what time it is now and I wouldn't be sure ...
MR PANDAY: ...(indistinct - mike not on)
CHAIRPERSON: We will adjourn now till 2 o'clock.
COMMITTEE ADJOURNS
