Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: We shall now proceed to hear the amnesty application of Mr Charles Bongane Zwane with regard to the incident relating to the killing of some municipal policemen and the killing of the following people : Jabulane Mgoma, Nicholas Masangwa Tshabalala and Masango Nimrod Umkomanda and the attempted murder of Umbulelo Kapo which is an incident which occurred on the 20th January 1989 at Meadowlands in Soweto. Mr Shai you are on record as appearing for Mr Zwane in this matter, is it not so?

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Ms Thabethe, are we in a position to commence? Have victims in relation to this incident been properly served with section 19(4) notices?

MS THABETHE: Madam Chair, in an attempt to answer your question, maybe I should just inform the Committee what the TRC tried to do to locate the victims. Fortunately I've got next to me our Investigator, Eddie Kalusa, whom we sent the notices to on the 2nd July. He tried to trace the victims. He went to the Meadowlands Police Station where he was told that the three deceased were not from Johannesburg. Mr Masango, Nimrod Umkomanda, was working in Johannesburg, but he came from Transkei and they did not have any addresses in Transkei of his relatives. Nicholas Masango or Nicholas Masango Tshabalala is from the Northern Province. That's all they know. They didn't have addresses for him. Jabulane Mgoma, fortunately Mr Nhlanhla Mlojwa, his brother, is present today, he responded to the advertisement that we made after trying to trace the victims. Also with Umbulelo Kapo, Madam Chair, he has since been deceased. He was injured in the incident. Apparently his relatives are somewhere in the Transkei, so we did make an advertisement in the paper in trying to locate them, so there's only one victim's next of kin who is present today.

CHAIRPERSON: When did Mr Calusa visit the Meadowlands Police Station with a view to ascertaining the whereabouts of the families of the deceased?

MS THABETHE: Madam Chair he says it was on the 3rd of July, it was on the 5th of July Madam Chair. Sorry Madam Chair, he says it was on a Monday, I'm trying to ascertain the date. It was Monday the 5th Madam Chair.

CHAIRPERSON: 5th of July?

MS THABETHE: Yes, Madam Chair.

CHAIRPERSON: Now what media was used to advertise for the Transkei area?

MS THABETHE: Madam Chair, Radio Xhosa was used.

CHAIRPERSON: When?

MS THABETHE: Unfortunately Madam Chair, I don't have the dates, but Mr Calusa tells me that it was immediately because he contacted Pila, our media person, so I would say maybe two days thereafter, which would be the 7th. I've got a note here saying that Radio Xhosa was used, Radio Ukhosi, Radio Lotus, Durban Youth Radio and Iswe Lomsanzi.

CHAIRPERSON: Now what radio station was used with an intention of conveying this notice and bringing it to the attention of the relatives of Mr Tshabalala, who were located to be around the Northern Province? From the radio stations that you have stated, there doesn't appear to be anyone that would be operating specifically in the Northern Province.

MS THABETHE: Unfortunately Madam Chair, I'm not familiar with the radio stations but these are the radio stations that I've read, so I don't know whether Radio Zulu and Xhosa there is a broadcast in the Northern Province or not, I really have no idea.

MS THABETHE: Ms Thabethe are you aware that the Northern Province is largely Northern Sotho?

MS THABETHE: No, Madam Chair.

CHAIRPERSON: So how can you expect people who are speaking Sepedi to be listening to Zulu, that they probably don't even understand? That's not a cosmopolitan area.

MS THABETHE: Like I say, Madam Chair, I'm not familiar with the media logistics, unfortunately.

CHAIRPERSON: You now have an obligation to satisfy this Panel that a proper notice was served or sufficient and reasonable steps were taken to ensure that this hearing was brought to the attention of the relatives of the deceased.

MS THABETHE: Madam Chair, I have nothing else to say.

CHAIRPERSON: Who can be in a position to advise this Committee because we are enjoined by the Act to make sure that where people's interests are involved, the relatives of the victims are advised of their right to be present at this hearing. It's a peremptory provision of the Act.

MS THABETHE: Madam Chair, if you can give me an adjournment, I'll try and find Mr Pila, maybe he can shed some light. Like I've said, I really don't have an idea as to which stations were used in Gauteng.

CHAIRPERSON: Yes, and when?

MS THABETHE: And Northern Province.

CHAIRPERSON: Yes. We'll take a lunch adjournment to enable Ms Thabethe to get the necessary information because it is important for the Committee to be satisfied that the Act has been complied with before proceeding to hear the application of Mr Zwane. I hope the members of the public will accommodate these teething problems. We'll, instead of adjourning, simply take a lunch adjournment and reconvene at half past one.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: We now have to proceed with the application of Mr Bongane Zwane. When we adjourned shortly before lunch it was by agreement that this matter will resume at half past one. This was made quite clear to the legal representative of Mr Zwane, that the Committee will be prepared and ready to proceed hearing evidence after Ms Thabethe's explanation with regard to the proper and reasonableness of the section 19(4) notices, had been given.

We were, however, extremely disturbed and distressed by the fact that when we had to come in at half past one, Mr Shai could not be located. His whereabouts were unknown and this Committee had to be kept waiting for almost 30 minutes. We take a very robust view with regard to such conduct. We would request Mr Shai to give us an explanation of this kind of misbehaviour.

MR SHAI: Thanks, Madam Chair. I have to start by apologising for the delay that I have actually caused and the consequences that resulted there from. Inter alia Madam Chair, the causes of the delay were, I had to, when we adjourned, I actually received a telephone call from my younger sister who is of Northern Province, with respect to some document that I had to go and collect at the Technikon Witwatersrand and then on coming back, the spot where I actually parked my car was taken by somebody else, I had to drive past the same building twice in order to and locate a spot where I could actually park. I am extremely sorry for the delay.

CHAIRPERSON: We find the reason that you have advanced not a very acceptable one. You are here to conduct a hearing on behalf of your client. Inasmuch as we appreciate the fact that you've got to render some service to your relative and your sister in this regard, we hope and trust that you know that your duty lies first with you providing proper and appropriate legal service to your client, Mr Zwane.

MR SHAI: I understand, Madam Chair.

CHAIRPERSON: We'll reluctantly accept your apology with a view of moving forward. We are a very short-lived Committee. We cannot afford to waste a second of our time. I hope I have made myself quite clear.

MR SHAI: That's clear.

CHAIRPERSON: Ms Thabethe when we adjourned you were going to seek certain particulars with a view of advising this Committee with regard to the service of 19 (4) notices as we are enjoined to so serve with regard to victims and the relatives of the deceased. In this case the relatives being those of Mr Mgoma, Mr Tshabalala, Mr Umkomanda and Mr Kapo. You are on record as having stated that Mr Mgoma is being represented today by his brother Mr Mgoma. You don't know whether the brother intends to oppose the application of Mr Zwane and we'd like to hear you with regard to the service of notices in relation to the other victims. You may proceed, the ball is in your court.

MS THABETHE: Thank you, Madam Chair. If I remember correctly, you had asked me a question about the Tshabalala family in the Northern Province. I would like to put it on record Madam Chair that our investigator, Eddie, did have an address where Mr Tshabalala lived before which was in Pimville. He went there and was told that a new family stays there now and they didn't know anything or the whereabouts of the family that lived there before. With regard to the advertisement that we did on the radio, I phoned Mr Mbulelo Sompetawu, who is our media liaison, to find out which radio station covered the Northern Province and he told me that an advert was done from the 2nd July onwards in the Tobela FM with regard to the Northern Province, yes.

CHAIRPERSON: We shall now proceed to hear viva voce evidence of Mr Zwane, but in doing so, this Committee will be mindful of the fact that there is a slight chance that the relatives of Mr Tshabalala may not have been able to capture the radio announcement as it was only done on the 2nd July and may indeed want to exercise their right as enshrined in our Act in section 19(4), to wish to oppose Mr Zwane's application. In the event of this being the wish of the Tshabalala family, this Committee has decided that Mr Zwane will have to make himself available to stand cross-examination if the Tshabalala family wishes to oppose and it is a substantive opposition. Do we have an understanding, Mr Shai?

MR SHAI: That is understood, Madam Chair.

CHAIRPERSON: Do you have any objection to that recommendation?

MR SHAI: No objection.

CHAIRPERSON: Thank you.

CHAIRPERSON: Ms Thabethe, with regard to Mr Mgoma who is here to represent the interest of the deceased Mr Mgoma, what is his attitude? Is he going to oppose Mr Zwane's application?

MS THABETHE: Madam Chair, I consulted with him. He told me that he is not in a position to oppose because he doesn't know anything as to what happened that day. He's merely here to find out exactly what happened that day.

CHAIRPERSON: Yes, we understand.

CHAIRPERSON: Mr Shai, may I now move ball to be in your court? You may proceed to lead your client. Do we have a supplementary affidavit that you've prepared?

MR SHAI: Thanks Madam Chair. Madam Chair, in the light of the fact that the initial application that would have actually entailed or that will have made the affidavit relevant, has been actually dismissed, we felt that it won't be proper for us to actually hand it in, but whatever was actually covered as far as the incident is concerned is covered in the annexure.

CHAIRPERSON: Yes, you will proceed to lead your evidence-in-chief?

MR SHAI: That is correct.

CHAIRPERSON: You may proceed to do so.

EXAMINATION BY MR SHAI: Just for the record Mr Zwane, where and when were you born?

CHAIRPERSON: May we, just before you proceed to do so, ask if he is going to give his evidence under oath.

CHARLES BONGANE ZWANE: (sworn states)

MR SHAI: Just for the record Mr Zwane, I said, where were you born and when? Yes, Mr Zwane, your birth place and birth date?

MR ZWANE: I was born in 1969 at Orlando West, Soweto.

MR SHAI: What standard of education do you have?

MR ZWANE: Can you repeat yourself please?

MR SHAI: How far have you gone in education?

MR ZWANE: I went up to standard 10.

MR SHAI: And at what school?

MR ZWANE: Orlando West High School.

MR SHAI: Now you are making application for an incident that took place on the 20th January 1989, is that correct?

MR ZWANE: Yes.

MR SHAI: During the commission of this crime or during this incident, were you a member of any political organisation?

MR ZWANE: Yes.

MR SHAI: Which one?

MR ZWANE: The African National Congress, Umkhonto weSizwe.

MR SHAI: Were you a card carrying member of the said political organisation, or were you just a supporter?

MR ZWANE: No, I wasn't a card carrying member.

MR SHAI: At what stage were you initiated into politics and how?

MR ZWANE: Around 1983,1984 somewhere there, I'm not precise.

MR SHAI: How did your initiation come about?

MR ZWANE: I started involving myself in school when I was still young and that is when I became aware of the political situation in South Africa.

MR SHAI: And how did you come to be a member or a supporter of the organization that you have mentioned?

MR ZWANE: A guy by the name of Rapumo Modegwane as a Youth Congress member ...(intervention)

CHAIRPERSON: May I interpose Mr Shai? Mr Zwane you are giving the translators some problems because you keep on switching the language you are adducing your evidence in. So decide which language you wish to stick to. You are free to use English, but if you so do, you'll have to proceed giving your evidence in English. However, if you elect to use your home language, which you indicated to be Zulu, we would request you to stick to Zulu because it will also make a havoc of our record and it's giving our translators a little bit of a problem because they don't know when to anticipate which language you are going to use, when.

MR SHAI: May I just question?

MR ZWANE: I'll be comfortable in English.

CHAIRPERSON: Yes.

MR SHAI: Now you were saying that you were recruited by some person. What's the person's name?

MR ZWANE: Rapumo Modegwane.

MR SHAI: That is to the Student Organisation?

MR ZWANE: No, as a Youth Congress member.

MR SHAI: Now in the MK structure itself as you alluded, how did you come to be a member?

MR ZWANE: I was also recruited by the guy with whom I was serving with in the Congress by the name of Umkojwa because he was first recruited by the MK cadres within the country and he then called upon me and we were both now working along with the MK cadres from outside the country.

MR SHAI: And do you mind maybe mentioning the cadres who were from outside?

MR ZWANE: Can you repeat yourself?

MR SHAI: The cadres you actually referred to, who were from outside, who were they?

MR ZWANE: It was Sonwabo, one of them and the other one it was his code name, I can't say his real name.

CHAIRPERSON: What's his name?

MR ZWANE: The first one is Sonwabo and the second one is just a V, that was his code name.

MR SHAI: Did they recruit you into a specific cell or unit?

MR ZWANE: Yes, in fact we were recruited to a specific unit.

MR SHAI: And how many members formed the unit?

MR ZWANE: It was up to the Commander, the Commander of the unit, because they were making the sub-units, so it was up to the Commander how many guys he would need. Sometimes we were being three, sometimes the others were being four in the unit, so there was no specific number.

MR SHAI: Are you referring to the specific unit into which you were recruited?

MR ZWANE: Into the one in which I was recruited there were three of us in that unit.

MR SHAI: And who are the other members?

MR ZWANE: It was myself, Sonwabo and Gybon Kubega.

MR SHAI: Now who was the Commander in the said unit?

MR ZWANE: It was Sonwabo.

MR SHAI: And do you know who he was actually reporting to, his immediate superior?

MR ZWANE: It was V.

MR SHAI: Did you yourself receive any training as far as the Mk activities were concerned?

MR ZWANE: Yes.

MR SHAI: When was it?

MR ZWANE: Though I can't recall the date, but it was back in, from, I started being trained from late 1980 ... 1980 ..., late in 1986.

MR SHAI: What kind of training did you receive?

MR ZWANE: I started by receiving training in firearms.

MR SHAI: And who trained you for that?

MR ZWANE: The guy by the name Oupa Alex Cie.

MR LAX: Sorry I didn't catch the surname, please just repeat it.

MR ZWANE: Oupa Alex Cie.

MR SHAI: And these members of your unit, Sonwabo and Gybon, do you know where they came from initially?

MR ZWANE: I didn't know, I didn't know.

MR SHAI: In other words, were they residing at the township in which you were residing, or were they residing somewhere else?

MR ZWANE: Within the township I was residing.

MR SHAI: Now what kind of weapons were you using during your activities as a unit?

MR ZWANE: AK47 rifles, Scorpion sub-machine pistols.

MR SHAI: Now we come to the incident itself or the incident of the 20th January 1989.

CHAIRPERSON: May I interpose? How did your unit obtain these weapons, the AK47 and the Scorpion machine guns?

MR ZWANE: I don't have any information. As a member of a unit I was just being offered the weapons when we had to go and lodge the operations.

CHAIRPERSON: Who was in control of these weapons?

MR ZWANE: My Commander, I was getting instructions from my Commander, Sonwabo.

CHAIRPERSON: So at no stage were you in personal possession of these weapons? Are you saying they were always under his control?

MR ZWANE: Yes, I was just getting the firearms when we were going to lodge the operations, then they were handed to me and other unit members.

CHAIRPERSON: Yes and these would be returned to the Commander immediately after an operation?

MR ZWANE: Yes.

CHAIRPERSON: You may proceed, Mr Shai.

MR SHAI: Thanks, Madam Chair. The incident on the 20th January 1989, will you please take the Committee through the planning and the actual carrying out thereof?

MR ZWANE: Well on the, what was the date, by the way?

MR SHAI: The 20th of January 1989.

MR ZWANE: On the 20th January 1989, my Commander came to me and he instructed me that I had to show them the places were we could find the policemen as our target and I told them that the place you can find most of the policemen is the Meadowlands area.

MR SHAI: And then from there?

MR ZWANE: From there we travelled by car. It was myself, my Commander Sonwabo and the other unit guy, Gybon Kubega. We patrolled the Meadowlands area up until we came across three policemen walking by foot. I showed the policemen to the guys, I said, "Here are these people" and then we stopped the car. We came out of the car. We said to Gybon he must live in the car because we couldn't go out of the car, three of us. Sonwabo took the AK47 and I covered him with two handgrenades, the offensive and the defensive, and we came near to the three policemen walking by foot and when we were closer to them, we started shooting at them.

MR SHAI: Were you looking for specific policemen or were you looking for any police officer?

MR ZWANE: Any police officer.

MR SHAI: Now why specifically police officers?

MR ZWANE: With my political understanding, I mean, the police by then were regarded as the pillars of apartheid, so they were some of the targets of Umkhonto weSizwe.

MR SHAI: Now you went out specifically to kill them?

MR ZWANE: Yes, of course.

MR SHAI: And then, take us from the time when you left the driver, that is Gybon, in the motor vehicle and you proceeded towards the police officers.

CHAIRPERSON: Shouldn't you, Mr Shai, for the sake of completeness and sufficiency of fact with regard to how the shooting took place, let him explain further and elaborate as to who shot who?

MR SHAI: That is where I want to take him.

CHAIRPERSON: Is that where you are getting to?

MR SHAI: That's correct.

CHAIRPERSON: I thought you were getting him away from the scene of the crime.

MR SHAI: No, I'm taking him out of the motor vehicle and he's proceeding to the police officers. Now you say, the two of you, that is yourself and Sonwabo went out of the motor vehicle and Gybon was left behind?

MR ZWANE: Behind in the car, yes.

MR SHAI: Now were you in possession of any weapons at that stage?

MR ZWANE: Yes. we were in possession of weapons. Sonwabo was in possession of an AK47 rifle and I was in possession of two handgrenades.

MR SHAI: Now who was in front and who was behind, between the two of you, Sonwabo and yourself?

MR ZWANE: Sonwabo was in front and I was giving him a cover, because he was the one to shoot and I was the one to give cover if the guys shoot back.

MR SHAI: And then you proceeded and who did the shooting?

MR ZWANE: We proceeded to the police up until we came closer to them and Sonwabo started shooting and one of them tried to run away and we also retreated back to the car immediately.

MR LAX: Just repeat the last part of what you said. One of them ran away and then I didn't hear the rest of it I'm afraid.

MR ZWANE: While Sonwabo was busy shooting, one of the three policemen tried to hide himself with a car, there was a car next to where we were shooting them and we realised that it was dangerous now because we didn't know whether he was shot dead or what, we were forced to retreat back to the car.

MR SHAI: Now there was a passer-by who was also killed in the incident. Do you know how it came about that this person was shot and killed as well?

MR ZWANE: Yes, I know.

MR SHAI: How did it come about that this person was also killed?

MR ZWANE: After shooting the three policemen, retreating, there were people in the houses next to where we shot the people and they tried to stop us say, "hey, hey" making noise you know people.

CHAIRPERSON: May I interpose? It has just been brought to my attention that you are seated there with leg irons on your feet. May we request the members of Correctional Services to remove those irons, to enable the witness to be free enough to give evidence, unhindered by such leg irons?

MR ZWANE: Thank you.

MR SHAI: From the killing of the civilian.

CHAIRPERSON: Yes.

MR SHAI: Ok, I was saying that it's common cause now that a civilian was killed in that incident. Do you know how it came about that this civilian was killed as well?

MR ZWANE: Yes, I know how. After shooting the three policemen, there were people who were sitting in their houses next to where we shot the policemen and when we were retreating back now to the car, those people were, they sort of attempted to stop us, making some noises and we realised that it will be hard for us to retreat back to the car and Sonwabo shot also on them just scaring them so that we could get our way to the car and I should think the passer-by was shot during the attack.

CHAIRPERSON: Won't you just give us more facts? Where were these people at the time when the shooting of the policemen took place?

MR ZWANE: They were sitting, there were houses next to where we shot at the policemen, so they were sitting outside those houses there.

CHAIRPERSON: How far were these houses from the spot where these policemen were shot at?

MR ZWANE: I would like to make the example with the house.

CHAIRPERSON: Yes.

MR ZWANE: Maybe the police were shot next to this crate and the people were sitting there on the TV camera guy there. Those people were sitting there, the police were shot in this area.

CHAIRPERSON: Would 6 paces be about the appropriate estimate, from there to there?

MR ZWANE: Yes, of course.

CHAIRPERSON: Yes. Mr Shai, I would approximate that to be about 6 paces. Ms Thabethe? About 6 paces?

MR SHAI: About.

CHAIRPERSON: Yes, about 6 paces. Now were these people outside a particular house? You are referring to, you are talking about people who were seated outside a number of houses.

MR ZWANE: I would not understand whether it was a particular house because it's a hostel sort of place, in fact.

CHAIRPERSON: Yes. I mean the houses you are referring to, are they still part of the hostel?

MR ZWANE: Yes it's a hostel.

CHAIRPERSON: Are they still part of the hostel?

MR ZWANE: They are still part of the hostel.

CHAIRPERSON: Yes. I had a different understanding. I though these were ordinary houses in a residential area.

MR ZWANE: No, it's a sort of a hostel.

CHAIRPERSON: Yes. And how many were there? Can you estimate how large a group was it?

MR ZWANE: It was not such a large group, if my memory serves me well.

CHAIRPERSON: Were there three, four, more than four?

MR ZWANE: About three or four.

CHAIRPERSON: And what were they actually doing?

MR ZWANE: In fact I would say they attempted, I don't know how can I put it, because they made noise, you understand, when something is happening people say, "hey, hey, hey," understand? We don't know whether they're attempting to stop or what, understand?

CHAIRPERSON: Yes.

MR ZWANE: While we were retreating back.

CHAIRPERSON: They just said, "hey, hey, hey?"

MR ZWANE: Yes, understand, that noise like they wanted to ...

CHAIRPERSON: And as they were shouting and screaming "hey, hey, hey," that was in response to your shooting the policemen?

MR ZWANE: On our retreat now, we had already shot the police.

CHAIRPERSON: And the shooting had stopped?

MR ZWANE: The shooting had stopped.

CHAIRPERSON: And you were retreating?

MR ZWANE: We were retreating back to the car now.

CHAIRPERSON: Yes, and did they do anything other than shouting or screaming "hey, hey, hey?"

MR ZWANE: There's was nothing that they will do, they just screamed.

CHAIRPERSON: Now what made you to shoot in their direction?

MR ZWANE: Well, because I didn't shoot, but personally what I think, Sonwabo was just scaring them for us to get a good retreat, understand, safely to the car.

CHAIRPERSON: Did they advance towards you?

MR ZWANE: No.

CHAIRPERSON: You may proceed, Mr Shai.

MR SHAI: At what stage did you become aware of the presence of the civilians?

MR ZWANE: In fact I wasn't aware that there were any civilian up until I was charged and went to the court, that there's a civilian who died there. I wasn't aware that a civilian was killed there.

MR SHAI: Yes, but at what stage did you become aware of their presence, in other words, during the operation itself at what stage did you ...(intervention)

MR LAX: He's just told us he wasn't aware of them. Did you only become aware. ...(intervention)

MR SHAI: He's only aware of the killing.

MR LAX: Sorry, did you only become aware that there were civilians there when you were actually at the trial and you heard that information?

MR ZWANE: Yes, I became aware on the court trial that there's a civilian who died at the incident.

CHAIRPERSON: But I think what your counsel wanted to elicit from you, you will correct me if I have not comprehended your intention correctly, I think you intended to elicit the information with regard to at what stage did he initially become aware of the presence of people in the nearby houses around the hostel.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Yes.

MR ZWANE: Can I answer that?

CHAIRPERSON: Yes.

MR ZWANE: I became aware of the presence of those people when we were retreating back. When we were lodging the attack, advancing to the police, I didn't notice them.

CHAIRPERSON: And when they were screaming "hey, hey, hey," as you were retreating.

MR ZWANE: It's when I started looking on the other side and I started seeing the people there.

CHAIRPERSON: Yes. That has been covered Mr Shai. Proceed.

MR SHAI: Thanks, Madam Chair. And you were finally arrested and arraigned with the murder of these three people, correct?

MR ZWANE: That's correct.

MR SHAI: And what was the sentence?

MR ZWANE: It was a death penalty.

MR SHAI: For each?

MR ZWANE: For each murder.

MR SHAI: Was it ever commuted to a life sentence?

MR ZWANE: No.

MR SHAI: Are you sure?

MR ZWANE: I'm sure.

CHAIRPERSON: Did you understand what your counsel ...(intervention)

MR ZWANE: Yes, I understand. Yes I understand what he said.

CHAIRPERSON: Yes. Your death was commuted to life, otherwise you would not be here.

MR ZWANE: I'm here, I'm here today.

I'm sorry, I'm sorry, I'm serious.

CHAIRPERSON: No, I think Mr Shai will be able to come to our rescue, because that's our understanding.

MR SHAI: That's correct.

CHAIRPERSON: In any event we know it's common cause.

MR SHAI: It's common cause but just for the record, actually my instructions were he doesn't actually know whether it was granted, but just for the record.

CHAIRPERSON: Yes, I think he is a lay man and he doesn't understand the legal implications. You will serve him however even more if you had to explain some of these intricacies.

MR SHAI: To him?

CHAIRPERSON: Yes.

MR SHAI: May I just lead him, or just leave the matter there or should I take it further?

CHAIRPERSON: It's not relevant to the issues we have to decide, so you don't need to ...(intervention)

MR SHAI: Delve deep into it.

CHAIRPERSON: Yes.

MR SHAI: Thanks. Did you have any personal gain in the carrying out of this activity, financial or otherwise?

MR ZWANE: No.

MR SHAI: What was the only motive that actually led you to the killing of these people?

MR ZWANE: It was a political one, of course.

ADV BOSMAN: But what did you hope to achieve, Mr Zwane?

MR ZWANE: By killing the police. With my political understanding the police according to the teaching I've got, they were the pillars of apartheid by then, so by hitting them we were killing the stones of apartheid.

ADV BOSMAN: Thank you, you may proceed.

MR SHAI: And today you are applying for amnesty for the three murders, it's common cause.

MR ZWANE: Yes.

MR SHAI: Now what would you like to say to the victims and to the public at large?

MR ZWANE: To the victims and the public I would say, I wasn't born a murderer. I respect people's lives, but it was the situation, unfortunate. I'm sorry, I'm really sorry. I know how those lives were precious to their families that's why I'm very sorry. I wasn't going to go out and kill those people if the situation was not like that. I'm really sorry to the parents of those people and everyone.

MR SHAI: May we just pause for some few seconds?

MR ZWANE: I'm really so sorry to the victims' next of kin, really, it was the situation. I mean, I didn't come to this world to murder people. I know how valuable life is, but the political situation of the day forced, I'm really sorry. I know that my sorrow won't bring your loved ones back, but I should think you'll understand, you understand what was happening before. I'm really sorry, that's what I'm saying.

MR SHAI: Now over and above what you have told this Committee as far as the incident is concerned, is there anything that you would like to specifically disclose that will be relevant in the application?

MR ZWANE: No, I don't have anything to say.

CHAIRPERSON: That is your evidence-in-chief, Mr Shai?

MR SHAI: That is correct.

NO FURTHER QUESTIONS BY MR SHAI

CHAIRPERSON: Yes. Do you think your witness is in a position to proceed to be cross-examined by Ms Thabethe, who I think will want to put a few questions to him?

MR SHAI: Yes, I'll just find out from him, Madam Chair.

CHAIRPERSON: Yes, you may do so.

MR SHAI: He says he's ready for cross-examination.

CHAIRPERSON: Ms Thabethe, do you have any questions to put to Mr Zwane?

MS THABETHE: A few, Madam Chair, thank you.

CHAIRPERSON: You may proceed to do so.

MS THABETHE: Thank you.

CROSS-EXAMINATION BY MS THABETHE: Mr Zwane, you've indicated that in your unit you used to do some operations, can you just explain briefly what kind of operations that you were involved in, in your unit?

MR ZWANE: Operations like for instance the one of the policemen.

MS THABETHE: Yes, I understand that. I mean generally, what was the function of your unit, you know, with regard to the operations that you used to do?

MR ZWANE: Would you please put your question the other way round for my better understanding of it, please?

MS THABETHE: Okay. What I want to ascertain from you, you've spoken about your unit and the fact that you used to do operations, right? What I'm trying to find out from you is, what kind of operations did you used to do? Not necessarily legal incidents maybe that were committed by your unit, just generally. For example with SDU's we know they used to defend the communities against, you know, that's what I'm trying to ascertain, the functions of your unit.

MR ZWANE: Okay. Okay I understand your question. Well I don't think I will be in the position to answer your questions because by the way, I was still a young kid. I was recruited and whatever I was doing, I was doing it on orders. Maybe my Commander will come to me and say "Bobo, I want you to go and do this operation" like that, understand? Generally I would not see what was the work of the unit.

CHAIRPERSON: When you were recruited by Sonwabo, was it not explained to you why you were being recruited? You have earlier on testified that you were recruited into a cell that comprised three persons, including yourself. Was it not explained to you at the time when you were recruited what function or functions would be performed by the unit you were to establish with Sonwabo? That is the crisp of the question.

MR ZWANE: No, Mummy, nothing was explained to me.

CHAIRPERSON: What were you told when you were recruited? You were to become a unit which would be doing what?

MR ZWANE: In fact what happened, Mummy, when I was recruited, I was an activist by then, and we were just taken with a friend, we were popular in fact in our area as a young activist. So what happened, we were taken by the cadres and we were trained by different cadres.

CHAIRPERSON: Surely you must have been told why you were being recruited?

MR ZWANE: I wasn't told. I wasn't told.

CHAIRPERSON: You were simply recruited?

MR ZWANE: Yes, of course.

CHAIRPERSON: Did you know who Sonwabo was?

MR ZWANE: Sonwabo? Yes I knew.

CHAIRPERSON: You knew that he was a member of MK?

MR ZWANE: Yes, I knew.

CHAIRPERSON: And yet you were not told what would be the specific function of the unit he was recruiting you to?

MR ZWANE: No, I didn't know the specific.

CHAIRPERSON: And you didn't ask?

MR ZWANE: No.

CHAIRPERSON: May I just request you to address me as Madam Chair?

MR ZWANE: Okay.

MR LAX: If I may interpose there Chairperson, just for a moment. Sorry Ms Thabethe. What did you think you would be doing when you were recruited. Not just - you were already an activist you have told us, so you were already part of youth structures and so on, what did you think you were going to do once you were recruited into MK?

MR ZWANE: What I thought, I thought I will be equipped with fighting material and I will be fighting, will be hitting whatever political targets available.

MR LAX: And obviously, as your training progressed, so you received further political education as to what the nature of your targets would be and what was acceptable and what wasn't?

MR ZWANE: In fact, I for one, I wasn't, maybe - there were no instances where I would go out and hit targets. What I was awaiting, we'll be coming from school, I would await my Commander to come and fetch me if there is something we need to go and do. I was just working on orders.

CHAIRPERSON: In what year did you say you were recruited by Sonwabo?

MR ZWANE: Please repeat yourself.

CHAIRPERSON: In what year did you say you were recruited by Sonwabo?

MR ZWANE: Sonwabo in fact, in the MK structure, I wasn't recruited by Sonwabo. Sonwabo, I met Sonwabo in 1988, November/December and by then I was trained already and we formed the unit, I, Sonwabo and Gybon.

CHAIRPERSON: Yes, you were recruited by Raputi as a student member.

MR ZWANE: Yes.

CHAIRPERSON: And how were you recruited into the MK structure?

MR ZWANE: Into the MK structure, I was recruited by the guy of whom we were serving as an executive member ...(indistinct) of both of us, by the name of Umkojwa.

CHAIRPERSON: Who?

MR ZWANE: Umkojwa.

CHAIRPERSON: And when were you recruited into the MK structure by Umkojwa?

MR ZWANE: It was late 1996.

MR LAX: 1986.

MR ZWANE: 1986, thank you.

CHAIRPERSON: And when did you, Sonwabo and Gybon form this specific unit to which you belonged? In what year?

MR ZWANE: 1988, November/December.

CHAIRPERSON: Between 1986 and 1988 you already knew the objectives of the Umkhonto weSizwe, is it not so?

MR ZWANE: It's so.

CHAIRPERSON: And when you were recruited into this specific unit, you must have known what was expected of the union.

MR ZWANE: That's exactly.

CHAIRPERSON: What did you understand to have been the functions of your specific unit?

MR ZWANE: I only understand - I had a general knowledge, no specific law, no specific order was given by my Commander to me that specifically our unit with deal with this target or what, really that information was never given to me from my Commander.

CHAIRPERSON: Yes. Were you told that it would be part of your function to identify targets and after identifying them, eliminate them?

MR ZWANE: As a soldier, I mean that wasn't told to me, but I know that it was also my duty as a soldier, if it was necessary, that I should point out the targets, as a soldier on the ground, I thought personally it was my duty also to.

CHAIRPERSON: Yes. we've just been asking these questions to assist Ms Thabethe. We'll leave the matter then, Ms Thabethe, you may proceed.

MS THABETHE: Thank you Members of the Committee. I think I'm answered. My next question is, when you've testified that you - okay, you testified that you had a plan to go and kill policemen on this day, the 20th. How did you identify these three policemen?

MR ZWANE: We were targeting a Datsun car and the three policemen were wearing their uniform, so I knew all the uniform of the police, so I saw them, that these are the policemen and I pointed them out to the guys that they must stop the car here, near the policemen.

MS THABETHE: Thank you, Madam Chair, no further questions.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Pursuant to the question put by Ms Thabethe with regard to the identification of the three policemen., you have earlier on in your evidence-in-chief given testimony to the effect that you were asked by your Commander as to where he could find some policemen and you then identified the area as Meadowlands.

MR ZWANE: Thank you, Madam Chair.

CHAIRPERSON: Now I also understood your earlier evidence to be that Sonwabo also stayed in your area.

MR ZWANE: That's correct.

CHAIRPERSON: Yes, now that being so, why was it necessary for him to ask you where he could locate the policemen when you all stayed in the same area?

MR ZWANE: He was not staying in the area, he wasn't born in that area, he came from exile and he was - he came in Soweto, he's not a person from Soweto. He was speaking a tough Xhosa, I should think he was coming from Cape Town, Transkei, I didn't know, but he wasn't a person of that area, he just came from exile and he came to my area.

CHAIRPERSON: So to your knowledge, how long had he been in your area prior to the incident in question, that being the 20th of January 1989. How long had he been staying in your area before this incident?

MR ZWANE: I cannot say because I met the guy in 1998, I was coming from detention too. I came to meet the guy in 1998 and we worked together.

ADV BOSMAN: You mean 1988?

CHAIRPERSON: I came out of detention during November 1998 and I came to meet the guy and we formed a unit, so I didn't know how long was he there, but I knew him from then.

CHAIRPERSON: Mr Lax do you have any questions to put to Mr Zwane?

MR LAX: Just one area Chairperson, if I may. When you finished that operation, what did you do?

MR ZWANE: We went back to the car. We drove away with the car and on the way I spotted the are where they should stop the car and I went out of the car and both my Commander and the other guy, they travelled together and I went home.

MR LAX: What did you do with the handgrenades?

MR ZWANE: The handgrenades, as I stated before, whenever I was leaving them alone, I left them in the car with Sonwabo and I went home.

MR LAX: Whose car was it?

MR ZWANE: I really don't know whose car was it.

MR LAX: Did either Gybon or Sonwabo, did either of them have a car of their own?

MR ZWANE: According to my knowledge, no one had a car.

MR LAX: Now, if I've understood you correctly, certainly with regard to this operation, you were about 20 years old at the time, you were 19 or 20 and you were at school and you would generally get involved in these operations when Sonwabo would come and fetch you and take you off on an operation. Have I understood that correctly?

MR ZWANE: Yes, that's correct.

MR LAX: Did you ever go on operations on your own?

MR ZWANE: Not at all.

MR LAX: And so if you saw a particular target or you had some information, you wouldn't have just taken the initiative yourself?

MR ZWANE: No, because personally I wasn't staying with the loaner, but if I was in the position of the loaner, I was going to personally initiate it.

CHAIRPERSON: What's a loaner?

MR ZWANE: The firearms and the explosives as such.

MR LAX: Just to get back to the question of the civilian, you, the only time you realised anyone had been killed, a civilian had been killed, was when you heard that at court?

MR ZWANE: Yes, Sir.

MR LAX: Thank you, Chairperson, I have no further questions.

CHAIRPERSON: Ms Bosman..

ADV BOSMAN: Thank you, Chairperson. Mr Zwane can we just follow up on this issue of the civilian? I don't have clarity in my own mind. What exactly was your participation in the killing of the civilian?

MR ZWANE: I never participated, no participation.

ADV BOSMAN: Well, was there any communication between you and Sonwabo?

MR ZWANE: May you repeat yourself please?

ADV BOSMAN: Was there no communication between you and your colleague, Sonwabo?

MR ZWANE: There was communication.

ADV BOSMAN: What was the nature of the communication when you were retreating?

MR ZWANE: When we were retreating? When we were retreating there was no, he just say - give the order that we are retreating back to the car now.

ADV BOSMAN: Were you surprised by the shooting in other words, of the civilian?

MR ZWANE: I don't say I would have been surprised because when he pointed, he shot on the side of the civilians and I didn't think he was shooting at them exactly, I thought maybe he was scaring them, because the main targets were already shot, so when he pointed that side, I thought he was scaring them, not to try and stop us if maybe they had that in their mind.

ADV BOSMAN: Thank you. Thank you Chairperson.

CHAIRPERSON: So what you are basically saying is that, in your opinion, there were no grounds that existed that would have justified the killing of this civilian?

MR ZWANE: Yes, of course.

CHAIRPERSON: Yes. Now turning to the application form that you completed and in the light of the evidence that you've given viva voce today, your application form indicates that you were given an order by Sonwabo to participate in this operation which led to the killing of the policemen and a passer-by?

MR ZWANE: Yes.

CHAIRPERSON: Do you recall completing that particular section in your application?

MR ZWANE: Yes, Madam Chair.

CHAIRPERSON: Now, can you remember what were the exact terms of the order given by Sonwabo to you?

MR ZWANE: I put that phrase in the sense that he was my Commander, whatever operation we were getting into, I mean, he had to command, he had to say let it be, understand?

CHAIRPERSON: Yes.

MR ZWANE: Without him saying let's do this, that is what I was trying to explain there.

CHAIRPERSON: But what did he say? From your viva voce evidence he seemed to have asked you where he could get hold of some policemen. That was your evidence viva voce.

MR ZWANE: Yes. He didn't know the area, Sonwabo, as I explained before, so he wanted us to go out and look for the police in whatever area where there's much police and I pointed the area I knew which got much police.

CHAIRPERSON: Yes, but I'm, I mean, just by somebody saying "identify the area where I can get hold of the policemen", to you that was suggestive of an order being issued by a Commander to participate in whatever operation would be done in the killing of the policemen.

MR ZWANE: Yes.

CHAIRPERSON: You understood that to be the case.

MR ZWANE: I understood that to be the case.

CHAIRPERSON: So when you say in your viva voce evidence you were asked to identify the place where policemen could be found, you understood that request to be an order?

MR ZWANE: I mean as a part and parcel of a unit, a Commander saying identify, I know after identifying we are in position of the material now, after identifying I mean I know already that we won't just identify and go. We will identify and attack.

CHAIRPERSON: Yes. Now where did Gybon stay?

MR ZWANE: He stayed in the car.

CHAIRPERSON: No, was he also staying in the same location as you?

MR ZWANE: Yes, but he was from Pietermaritzburg also.

CHAIRPERSON: How long had he been staying in your location before this operation?

MR ZWANE: I have no idea, Madam Chair.

CHAIRPERSON: Now you became a specific unit, according to your testimony, around 1988, November or December of 1988, are you not in a position to estimate whether by that time he had been there for some few weeks, or for some few months, or a few years?

MR ZWANE: Madam Chair, as I've said before, the whole of 1997, 1998 I was in detention and I came out in 1998, November so I wouldn't know how long was the guy there, I mean I've been not in the township for two years, for a period of two years.

CHAIRPERSON: So when the unit was formed in November of December of 1998, did you know Gybon?

MR ZWANE: I knew, my Commander introduced Gybon to me.

CHAIRPERSON: When was that?

MR ZWANE: After my release in 1998, November, December, just there.

CHAIRPERSON: That was the first occasion you had of Gybon, otherwise you hadn't known him before that?

MR ZWANE: I hadn't known him.

CHAIRPERSON: How did you know that he stayed in the same location as you?

MR ZWANE: After having known him, then I knew where he stayed.

CHAIRPERSON: Yes,

MR ZWANE: He was introduced to me by my Commander, we knew each other, we lived together and I knew later where he stayed.

CHAIRPERSON: Was Raputi aware of your involvement in this specific unit, that was commanded by Sonwabo?

MR ZWANE: Whom?

CHAIRPERSON: Raputi. That's the person who recruited you into the MK structure.

MR ZWANE: Umkojwa?

CHAIRPERSON: Oh sorry. I think Raputi recruited you into the Student Organisation Movement. I think it's Umkojwa, yes, was he aware of your special participation in this specific unit commanded by Sonwabo?

MR ZWANE: I think by then Umkojwa had escaped from the prison and he was in exile.

CHAIRPERSON: So he was no longer around?

MR ZWANE: He was no longer around int he location.

CHAIRPERSON: And who did you say Sonwabo reported to, within the MK structure. To a guy with the code-name of V.

CHAIRPERSON: And what position did V hold within the MK structure? What was his position?

MR ZWANE: I didn't know much about V, Mummy, but I knew he was a big guy because my Commander also respected him. I saw him by chances. I wasn't seeing him, I didn't know him very well, but I was told, this is a big guy, even when he comes to my Commander we used to be taken away. So he used to tell us this is the guy bigger than him.

CHAIRPERSON: Yes. How old was he at the time?

MR ZWANE: He was an old guy, I mean by then I was 19 years, maybe he was 30 something.

CHAIRPERSON: Yes. Do you know where he stayed?

MR ZWANE: No I didn't know.

CHAIRPERSON: How did you know that Sonwabo reported to V with regard to the activities of your unit?

MR ZWANE: Well because when the guy comes, I mean, we can see the strain if we were drinking, we maybe do something, understand, because we usually sometimes sit together and drink, we see him telling us "take these things away", so I started realising this guy is bigger than my own Commander.

CHAIRPERSON: Yes, but how did you know that your Commander was reporting to V?

MR ZWANE: Not as such. I just assumed. There was no direct information from my Commander that I'm reporting.

CHAIRPERSON: Did you ever have the presence of mind to ask your Commander whether he was indeed reporting to V?

MR ZWANE: No, I didn't have that presence of mind, Madam Chair.

CHAIRPERSON: Why did you not have such presence of mind?

MR ZWANE: In fact to be straight, I wasn't bothered by, bothered to ask a lot of things, I was militant, I grew up being a militant young boy. What I wanted, I wanted to fight, understand? To see my country repatriated, that was what I was up to. I didn't ask too many questions, too many things, I really wanted to fight.

CHAIRPERSON: Mr Shai, emanating from the questions put by Ms Thabethe and the Members of this Committee, do you have any re-examination to do on Mr Zwane?

RE-EXAMINATION BY MR SHAI: Just one question Madam Chair. You say, when you joined the unit, you say that you knew that, or when you joined MK, you were aware that you will be identifying targets. That's what you say in your testimony.

MR ZWANE: May you repeat yourself?

CHAIRPERSON: Where did you get this from, Mr Shai? He never gave such testimony here.

MR ZWANE: I just want to put it, quote the words that he used.

CHAIRPERSON: No we are interested, not in your notes, we are interested in the viva voce evidence led before this Committee today.

MR SHAI: Yes, I'm looking at ...(intervention)

CHAIRPERSON: Yes, he did not give such evidence.

MR SHAI: Oh sorry, the words were ...(intervention)

MR LAX: Your microphone please.

MR SHAI: You say to a question, "What did you think you'll be doing when you were recruited?" "I'll be equipped with weapons to hit targets." Was it specifically mentioned to you that those will be your activities, or was that just an assumption from your side?

MR ZWANE: It was an assumption from my side as a young activist.

MR SHAI: And what did you base this assumption on?

MR ZWANE: I based on, before my recruitment, I mean, it was a general information from the media, we heard that MK members were shooting at police as such.

MR SHAI: Now on the civilian issue, you say that there was no communication between yourself and Sonwabo as you were retreating?

MR ZWANE: Correct.

CHAIRPERSON: Miss Thabethe, if you want to raise an objection, won't you do it procedurally through the Chair?

MS THABETHE: I'm indebted to you, Madam Chair.

CHAIRPERSON: Do you have any objection to raise?

MS THABETHE: I just wanted to correct him that he actually said they did communicate, he didn't say they didn't communicate.

CHAIRPERSON: Proceed, Mr Shai, uninterrupted, under my protection. I will then give Ms Thabethe an opportunity to raise her objection, but proceed to put what you want to put to Mr Zwane.

MR SHAI: Thanks, Madam Chair. Or rather, let me rephrase it. Was there any form of communication between yourself and Sonwabo as you were retreating?

MR ZWANE: Yes there was.

MR SHAI: What was the effect of that communication?

MR ZWANE: I mean, after shooting our targets, I mean, he pronounced that we retreat now, as a cover behind, he pronounced that we retreat, and we retreated back.

MR LAX: The question was, was there any communication between the two of you as you were retreating? That was the question. Your microphone. You've told us about a communication before you began retreating. This was while you were retreating, was there any communication? That's the gist of the question. Have I got it right, Mr Shai?

MR SHAI: That is correct.

MR ZWANE: The only communication was when he pronounced that retreat, that was the communication we had.

MR SHAI: And if you were to be in the shoes of Sonwabo as you were retreating, and with the screaming that came from the civilians, would you have acted as Sonwabo did?

MR ZWANE: Not exactly, but nearly. I would have tried to scare them, to shoot to make them - to scare them, to see that I mean we are really in business, but not killing them.

MR LAX: Do you know what was in Sonwabo's mind?

MR ZWANE: No, Sir.

MR LAX: You didn't ask him about it afterwards?

MR ZWANE: No, Sir.

CHAIRPERSON: Your evidence, pointedly, is that you hardly were aware that anyone was injured or killed until this was brought to the attention - this was brought to your attention during your criminal trial.

MR ZWANE: Thank you, Madam Chair, that exactly.

CHAIRPERSON: Yes.

MR SHAI: No further questions Madam Chair.

NO FURTHER QUESTIONS BY MR SHAI

CHAIRPERSON: Thank you, Mr Shai. Ms Thabethe.

MS THABETHE: I have no witnesses Madam Chair.

CHAIRPERSON: You have no witnesses? Mr Shai, do you wish to call any witnesses in support of Mr Zwane's application?

MR SHAI: No witnesses, Madam Chair.

CHAIRPERSON: Yes. So you now close your application?

MR SHAI: I close my application, Madam Chair.

CHAIRPERSON: Yes. Are you in a position to present your legal argument?

MR SHAI: Madam Chair, may I be given just maybe plus minus 3 minutes, not a long adjournment?

CHAIRPERSON: Yes, we'll adjourn for 5 minutes.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Shai you may proceed with your oral submissions.

MR SHAI IN ARGUMENT: Thanks Madam Chair. It's a trite law that in an application like this one has to satisfy, or the Committee has to satisfy itself, as to the requirements of the Promotion of National Unity and Reconciliation Act, most specifically so the provisions in Section 20, from sub-sections 1 to 3. I'm going to deal with the provisions of the sub-section more specifically sub-section 3 and some few provisions of sub-section 2.

My submission is, as far as sub-section 1(a) is concerned, the applicant did indeed comply with the requirements in the form of him actually meeting the deadline as he is actually required and it is my submission that because it was actually considered by the Committee and then he actually complied with the provisions of 20 sub-section 1(a). Then I am going to leave (b) and (c) for the moment. I will actually deal with them when dealing with the provisions of sub-section (3). Then dealing specifically with specific elements inherent in the incident for which he actually makes an application for.

One of the aspects that one has to look at is the issue of where he was actually at the time of the commission of the offence in question, a member or supporter of a political organisation.

CHAIRPERSON: May I interpose? We don't have any contrary evidence. We accept the evidence before us, you don't need to elaborate on that. We have to accept, because there is no evidence to the contrary that he wasn't.

MR SHAI: Yes, that's why, Madam Chair, I said that I will deal specifically with the provisions of sub-section 3 which I think he has to fully satisfy before he could be considered as an applicant who satisfies the requirements of the Act in totality.

Now I am going to deal with the (a) part of it, the motive of the applicant in this matter at the time of the commission of the said offence. He says that when ...(intervention)

MR LAX: Surely, Mr Shai, the issue here is a really simple one and let's not make a meal of it. He was acting under an order by his Commander. That would place him in a specific sub-section. If you'd focus on that, we could deal with this submission a bit more quickly. He himself in his own motive, if it's a question of acting under an order, does it come into it?

MR SHAI: I then, Madam Chair, ask for direction from the Committee as to what specific sub-section I should actually deal with under the provisions of Section 20 sub-section 3.

CHAIRPERSON: Yes, we are merely directing you to what is fundamental to his application.

MR SHAI: That is correct.

CHAIRPERSON: What is paramount and significant to his application is that the testimony before us indicates that he was acting under orders. You should confine your argument, only with regard to the section dealing with people who are acting under orders. I don't think it is fair for you to expect this Committee to direct you to that particular provision, in order to enable you to present legal argument.

MR SHAI: Madam Chair, I was just going to actually deal with the provisions of sub-section 3, then quickly dismissing each and every one of them before we actually come to concluding my submissions.

CHAIRPERSON: Let me then drag myself to an arena where I do not want to find myself in. Let me point out to you that the sub-section you have already alluded to, in fact deals with the pointed submission we want you present before us. That's Section 20(3)(e) to be precise.

MR SHAI: That is correct. Madam Chair, here it says "whether the act, omission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation, institution, liberation movement, or body of which the person who committed the Act was a member, an agent, or a supporter." Now in actually dealing with whether he falls within the ambit of this, one has to look no further than looking at whether Sonwabo was indeed an MK member who was actually giving instructions to the applicant. Now we only have the viva voce evidence of the applicant to that effect. but if one looks at page 51 of the bundle before the Committee reference is actually mae to Sonwabo by the learned Judge, who actually decided on this. I'm just going to quote from page 51, that will be the first paragraph, just immediately after the comma, it says "Die persoon wat die beskuldigde telke male noem in sy bekentenis en die Luitenant het getuig dat hulle weet en het geweet dat Sonwabo 'n buitelandse ogeleide terroris was." So in other words, in the court itself it was accepted by virtue of the evidence that was led by a Lieutenant that this Sonwabo was a cadre, I will use the word, terrorist at that stage was the word that was actually used for members of the Umkhonto weSizwe and that was accepted as a fact and over and above the viva voce evidence of the applicant, we now have evidence aliunde to the effect that this Sonwabo was actually a trained cadre and my submission is, if one were to look at what the applicant said today that this Sonwabo was actually a person who was giving him instructions, and then my submission is that as far as the provisions of sub-section E are concerned, and this Sonwabo was actually known as a person who was giving an order to the applicant, and the applicant sincerely believed that if Sonwabo were to give an order as a Commander, then he had to carry them out. My submission Madam Chair is, he actually satisfies the requirements of Sub-section 2 (e), 3 (e) Madam Chair, I beg your pardon. It's trite law, or it is common cause at the moment that he actually says that he believed that these instructions, or when he carried them out, they had to be carried out because this person was actually reporting to V, or he sincerely believed that this person was reporting to V and my submission is, as far as the chain is involved from the accused - the applicant was actually carrying out instructions up to the person who was giving instructions, there was a genuine belief that he was so authorised to actually deal with the activities as he did. My submission is, the applicant has satisfied the said requirements.

CHAIRPERSON: Yes. ...(indistinct - microphone not on)

MR SHAI: If the Committee will actually like to direct me to deal with number (e) in particular but I will actually go further and deal with the issue of the killing of the civilian, if indeed, during the course of carrying out the mandate for the killing of the three police officers, he actually killed a civilian who had nothing to do with the machinery of the state. My submission is, it was actually an act that was also committed in the carrying out of a mandate which was actually politically motivated.

CHAIRPERSON: What happened?

MR SHAI: I'm referring to the orders that were actually given to him by Sonwabo, that they had to actually look for these police officers and kill them, then in the process of actually killing the police officers, in the process of retreating, then this person was actually hit.

CHAIRPERSON: He wasn't hit in a cross-fire, that's not the evidence of Mr Zwane.

MR SHAI: That is the evidence, Madam Chair. But if one,

CHAIRPERSON: Where is that evidence? I don't have such evidence before me. The evidence that is before me is clearly that as they were retreating, he saw people shouting and screaming, "hey, hey". He himself does not know what happened to those people. He is in no position to say that Sonwabo, he saw Sonwabo firing at those people who were screaming and saying "hey, hey, hey". He is in a position to speculate, however, and this is mere speculation, that Sonwabo might have fired at those people and that the civilian, who was later identified to him as having been killed around the scene, could have been a person that Sonwabo fired at in order to scare him, but this is all speculation.

MR SHAI: That is correct. It was a speculation that relates to the firing, but it's not a speculation as the firing itself is concerned. He is sure that Sonwabo fired at these people, that is part of his evidence, but he is speculating as to the motive for his firing at the people. That is why in my re-examination I actually put it to him whether had he been in the position of Sonwabo, he would have acted as he did and his answer was, "I would have, to scare the people". It was during the scaring off of these people that a fatal shot was actually fired, that led to the death of the civilian.

CHAIRPERSON: How can you say when the fatal shot was fired by Sonwabo? I mean, here is the witness before us today, who has not been able to say when any of the civilians could have been fired at by Sonwabo. That's the evidence before me. There is no evidence to suggest that Sonwabo might have fired at the civilians. This witness was not aware that any of the civilians was ever fired at until when he appeared at his criminal trial and this was brought to his attention.

MR SHAI: Madam Chair, maybe as far as that is concerned I actually heard the story differently, because he says in his evidence-in-chief, he says he saw the firing, but the hitting itself, the hitting itself he didn't see. He only learned of the death of the civilian when he was actually arraigned for trial. He doesn't doubt the fact that there was actually a shooting, but the motive for the shooting and the hitting of the civilian by Sonwabo.

CHAIRPERSON: Mr Shai.

MR SHAI: Madam Chair.

CHAIRPERSON: I would be greatly indebted to you if you can just refresh my memory when during his evidence-in-chief he led such evidence, that he actually saw Sonwabo firing at the civilians, because I do not have that evidence and that's why constant questions were asked about what happened as they were retreating.

MR LAX: What I have which may be helpful is, you asked about what these people were doing, "they made a noise, they were shouting 'hey, hey, hey' at us while we were retreating. Did they do anything? No they just screamed What made you shoot? Sonwabo just shot at them, they didn't do anything." He only noticed the people when they were retreating and he heard them shouting at us, that's when he first noticed them.

MR SHAI: That was on cross-examination by Madam Chair, when he actually uttered those words, but those words were actually when he was so cross-examined, it was based on what he said in his evidence-in-chief, that he actually witnessed the shooting. He heard the "hey, hey, hey" and then the shooting. Then, as to what - there was actually a question from - when the Evidence Leader was actually asking about communication between the two, the issue there was actually the issue of what he knew, the questions was actually centred on the motive. The motive of Sonwabo in the time of the shooting, it wasn't actually centred around the issue of whether he shot or not, that is what I understood Madam Chair, subject to ...(intervention

MR LAX: Sorry Chair, just for the record, what I'm quoting from is from his evidence-in-chief, not from cross-examination. The cross-examination happened at a later stage and there the issues that were raised were the issues of did they communicate, and the applicant very clearly testified that they didn't communicate during the retreat at all, the only communication between them was the order to retreat itself and nothing more and that's the only evidence on this issue before us.

CHAIRPERSON: I think my interposition happened whilst you were leading him in chief.

MR LAX: Yes.

CHAIRPERSON: My interposition happened while you were leading your evidence-in-chief, so it forms part of the evidence-in-chief.

MR SHAI: Yes, but it was actually to a response to questions when he talked about the "hey, hey", it was actually in response to questions that were posed by Madam Chair, but prior to that his evidence was, there was indeed a shooting by Sonwabo as they were retreating, but he doesn't know the motive. It was actually centred on the motive for the shooting of the civilian, that's why in my re-examination I actually asked him, if you were in the position of Sonwabo, would you have fired a shot as well? Because that is what I understood from his evidence, that actually there was a shooting but he wasn't sure about the motive for the shooting, Madam Chair.

CHAIRPERSON: Yes, he actually was speculating that maybe Sonwabo shot at them to scare them. That's the evidence. Those are my notes and we can cause the record to be transcribed just to be able to get over this hurdle if need be, but even if we were to concede that that is so, how would he be covered? I mean, how would he have been acting under orders? I mean he's orders are very precise. Identify the place where we can locate the police. He knows the political objective of such an identification is to shoot the police because it is the policy of MK to shoot at policemen. They were the target. How would he be covered if he was acting under orders of Sonwabo? How would the shooting of a civilian cover him?

MR SHAI: Madam Chair, it was during the carrying out of this activity of shooting the policemen, that a civilian was actually hit. It is actually an incident or an activity related to a political activity. In other words, when the civilian was so hit, it was during the carrying out of a political activity. You can't actually divorce the shooting of the civilian from the shooting of the policemen. Had it not been for the shooting of the policemen, the civilian wouldn't have been hit.

CHAIRPERSON: But he doesn't know why Sonwabo shot at them. He thinks that Sonwabo might have shot merely to scare them off.

MR SHAI: Madam Chair and he says the reason why he says so is if he were to be in the position of Sonwabo ,,,(intervention)

CHAIRPERSON: No, not before. That's when you were re-examining him. This is his evidence-in-chief. He thinks Sonwabo shot at them to scare them. That's his evidence-in-chief.

MR SHAI: Yes, that is the position, but in scaring them a fatal shot was actually fired.

CHAIRPERSON: But now this is not cross-fire you know. There is a difference between shooting at somebody and that person is caught in a cross-fire shooting and shooting at somebody for a different intention, to scare them off.

MR SHAI: Madam Chair, I understand. Madam Chair, my submission is, in an activity of this nature where you have to kill at a certain place and then you have to retreat, the activity is not over until such time that the people taking part in the activity have retreated.

MR LAX: Except to say, Mr Shai, that there are two different incidents in one here and in relation to the second incident which is the shooting to scare off, the issue of proportionality will come into it very, very much in that issue because we have the evidence of the applicant that these people did nothing that gave any impression that they were going to interfere with the retreat. Now in the light of that and in the light of the fact that he didn't even anticipate the shooting himself and in the further light of the fact that he didn't even know anyone was hit, how can we grant him amnesty for that?

MR SHAI: I will answer this at the cost of actually repeating some of the aspects that I have already alluded to.

CHAIRPERSON: Yes.

MR SHAI: And I may, if necessary, Madam Chair, make use of an analogy to actually bring my point across. Here we have people who are involved in a political activity and in the carrying out of this political activity, not during the cross-fire, we have got a bunch of people, each with his or her own personal mechanism of thinking. The plan is the same. The motive is the same. Now during the carrying out of this activity, somebody thinking on his own, thinks that it is necessary to actually fire as he did. Now the problem that I have is, if you were to divorce that incident, you actually divorce the two incidents and you say there is a shooting of a civilian and a shooting of a police officer, my submission is that you can't actually come to a conclusion that there was a motive for the shooting of the civilian without actually looking at what is it that they were doing when the civilian was actually hit.

CHAIRPERSON: Or what were the civilians doing at the time when they were hit?

MR SHAI: That's why, Madam Chair, I said, he says himself, if he were in the position of Sonwabo the person who fired the fatal shot, he would have actually also shot to scare them off. Now we are here talking about now how precise was he in actually aiming at the civilians, whether he was actually aiming at the civilians themselves or whether it was actually a bullet that was not aimed specifically at the civilians.

CHAIRPERSON: And we are in no position to come to an answer, are we?

MR SHAI: That is correct, Madam Chair and that is why I say the only way to actually arrive at an answer that will actually be helpful to the application itself, is actually looking at the incident of the shooting of the civilian in conjunction with the whole incident as is before the Committee. The two, my submission is, they cannot be divorced. At no stage did they say, "Now the political activity has come to an end. What do we do now? Do we shoot the civilians or not?" That is not what happened. It's actually during the rolling, the ongoing of the very same activity they went out on, that this civilian was actually hit and it was not actually at the end of their having retreated, that they were actually shot and killed.

CHAIRPERSON: Mr Shai, also at the point of the Panel repeating itself, let's again make our problems quite clear. It is Mr Zwane's evidence that at the time when they were retreating and at the time when these people were screaming "hey, hey, hey", they were not doing anything that would have posed a threat to their retreat. They didn't advance towards them, they did nothing except to shout "hey, hey, hey." That is the evidence before us. What are we supposed to do with that evidence? Surely we must give some kind of weight to that evidence in order to try and accommodate your submission that the mission was still continuing as they were retreating. Had there been any evidence to suggest that the civilians posed a threat to their ultimate retreat, then we would understand, but there is no such evidence that any danger was posed by the people we identified as the people who were about 6 paces away from the scene of the shooting of their targets, the targets being the municipal policemen. These people are 6 paces away from the scene.

MR SHAI: That is correct, Madam Chair. Now let's look at the problem from the point of view of Sonwabo and the applicant, as a collective, although it is actually common cause that one was actually acting under orders from the other, then one has to deal with the question, what would happen in a situation whereby they actually went to one and the same place but one were to carry his activities at a different scene, but at the same place. In other words we have got two people who had planned to go and kill policemen who are not in the position that the three policemen were, but we have got people who are out to kill policemen who are situated at two different spots, but at the same time. Now we have one who is dealing with his own peace officers and the other dealing with his own peace officers as well. Now my submission is, if one is faced with problems as far as his police officers are concerned and in the process something goes wrong with that person, because they are part and parcel of the same operative, then my submission is, one can say that the killing, if a civilian is killed by one of them, the killing can actually be taken to have been committed by the people as a unit. We can't - that's why I say that it is difficult to divorce the two. We can't say at what stage - we can't actually expect the applicant to actually testify on what could have gone on as far as the other person is involved. It's actually trying to find out from the applicant what is it that the other person thought will be the position.

CHAIRPERSON: That's why we simply are saying this could never have been part of the order that he was acting under and it's quite clear, I don't see how we can keep on harping one point for such a long time when I think to me the issue is quite clear. That can hardly be the case. You cannot submit that this could have been part of the order under which he operated at the time when the three policemen were killed.

MR LAX: Just to add this. You will recall that earlier on in the day there was an application. Adv Bosman asked a question which I thought was very helpful in helping separate the issues. The question was, in relation to the murder of the civilian, would you be able to tender a plea of guilty by your client? And again, in these circumstances, the answer must be no. He didn't even contemplate it. Do you see the difficulty?

MR SHAI: In answer to that, I actually see what the difficulty is. It's because in a court of law one will be doing with the two levels of involvement, the physical involvement and the mental involvement. Now in this application, in a court of law one would be in a position to tender a plea of guilty because the mental element doesn't relate to the killing of the civilian, but now here we're looking at it from a different angle. We say an offence was committed. A person was killed. The only person who can actually relate to how the mental element was actually involved is this Sonwabo. He was there, he was physically there as part of the operation itself, but now the problem is, can we actually divorce the two? We say, this is one incident and this is the other incident. We are - my submission is, he is making application for the incident. We are talking about one incident, it's not two incidents, it's just one incident, in which people were killed, people from different categories. One or two peace officers and one a civilian.

CHAIRPERSON: What were his orders, Mr Shai, what were his orders? What were Mr Zwane's orders?

MR SHAI: His orders as I understood was to go and kill policemen. To identify policemen and kill them.

CHAIRPERSON: Yes, it was never contemplated that any other person would be killed as part of his orders. Is there any evidence to suggest that it was ever contemplated as part of his orders, that anyone other than the target, would be killed?

MR SHAI: But that is what happened.

CHAIRPERSON: I don't care about what happened, just confine yourself to what I'm asking.

CHAIRPERSON: Is there any evidence to suggest that the order contemplated any other person being killed other than the target?

MR SHAI: Nothing like that.

CHAIRPERSON: Thank you.

MR SHAI: And my submission is, we're dealing with a fact that emanated from the same operation and we can't say because that was actually not foreseen, then it should be discarded. My submission is, it happened, it was during the operation itself and my submission is, it cannot be divorced from the killing of the two police officers.

CHAIRPERSON: Yes. Having regard obviously to the evidence given by Mr Zwane, with regard to what the group of people were doing, who it is speculated one of the deceased might have been. It might have been one of them. It was nothing that they did that would have posed a threat to the successful completion of the operation which is a successful retreat from the scene of the crime. But I have understood you and I don't think you can labour the point any further. You have repeatedly said, at the point of repeating yourself, you are making these submissions. We have just been putting these questions to you so that we can be clear in our minds what your submissions are in relation to the evidence before us. I hope you understand that.

MR SHAI: Thanks, Madam Chair.

CHAIRPERSON: Ms Thabethe.

MS THABETHE IN ARGUMENT: Thank you Madam Chair. I think I should respond firstly on the issue that was, on the aspect that was just argued now and that is the aspect of the shooting of the civilian. I would have argued in favour of the applicant, that the evidence before you is that the applicant does not know at what stage the passer-by was killed or the civilian was killed. He only found that one out in court. Everything else is speculation and really I think in his favour I would argue that the civilian could have been killed during the cross-fire. He could have been killed when Sonwabo was shooting. He is not in a position to know when the civilian was killed which makes it - which would make it one incident per se, or it can be argued that the civilian was caught up or might have been caught up in the cross-fire, that's what I would argue in his favour.

CHAIRPERSON: Would it be your submission therefore that the civilian might have been shot at even by the time Mr Zwane was able to observe this group of persons he has testified about and as having screamed "hey, hey, hey" and that the civilian might have already been shot at the time when he says this group did not make any move at all to threaten their retreat?

MS THABETHE: Yes, that's what I'm arguing.

CHAIRPERSON: Yes.

MS THABETHE: I don't know whether you want me to address you on anything else Madam Chair, with regard to that aspect or to that.

CHAIRPERSON: Yes, proceed to address us on any issue with regard to the killing of the civilian that you so wish.

MS THABETHE: Yes, I think that was my argument, Madam Chair, that I would argue that he is not in a position, or with the evidence in front of you, I don't want to repeat myself, it's not clear at what stage the civilian was shot and I would argue that it could have been at any time.

With regard to the three policemen that were killed, I wouldn't like to repeat anything that my learned colleague has said and there's no evidence in dispute of, sorry there's no evidence against or disputing the fact that the applicant belonged to MK and their objective was a political one, to kill policemen who represented the state or the government of the day at that time. So I would not object to amnesty being granted. Yes. And of course with the victims, because I also represent them, the interest of the victims, I would pray that they be referred to R and R,

CHAIRPERSON: Yes. That concludes your argument?

MS THABETHE: Yes, Madam Chair, it does.

CHAIRPERSON: I take it, Mr Shai, you wouldn't have anything to reply on.

MR SHAI: No, Madam Chair.

CHAIRPERSON: We wish to express our gratitude to the legal representatives, Ms Thabethe and Mr Shai for the assistance they've rendered to this Committee in facilitating the Committee to arrive at an equitable, just and speedy decision in respect of the application for amnesty by Mr Zwane. This Committee is in a position to give an extemporary decision in respect of this application. I, however, have just been reminded by the members of my Panel that when we commenced with this application, we had an undertaking by the concerned of all parties, that in view of the nature of the notification, I have given to the families of the victims in this matter, in particular the family of the deceased Nicholas Masanwe Tshabalala, who stay in the Northern Province and the family of Mr Masanga, Nimrod Umkomande who stays in the Transkei, we will have to give them time to give an indication whether they would like to oppose these proceedings in which case, if they do want to have a substantive opposition to Mr Zwane's application, we would give them an opportunity to cross-examine Mr Zwane with regard to those issues of the substantive opposition, they would have in respect of his application. I recall that Mr Shai was in agreement with this recommendation from the Panel, as well as Ms Thabethe. That being the case, I think we are unable to pronounce a decision without affording them that opportunity to exercise their right, which we are enjoined by the Act to furnish to them in terms of Section 19 sub-section 4. Because we would like to pronounce our decision as speedily as possible, we will give an indication to Ms Thabethe that, in the event that there is no indication of the families of the victims intention to oppose substantively this application brought by Mr Zwane within 14 days from today, we will proceed to pronounce our decision.

MS THABETHE: As the Committee pleases.

MR SHAI: As the Committee pleases. Will the decision be posted to us or would we have to come for the decision?

CHAIRPERSON: Because it will not be feasible for this Panel to reconstitute itself, we will fax a decision to your office after 14 days. You are also at liberty to maintain contact with Ms Thabethe, just to make sure that you know the interests of Mr Zwane are fully protected in the event of there being a delay from her side to give you the decision, but we will proceed to write our decision and we'll hold it in abeyance pending, of course, an indication whether the families of the victims mentioned intend to oppose substantively or not.

MR SHAI: Thanks, Madam Chair.

CHAIRPERSON: This brings this hearing to a close and this is the end of our roll. Our gratitude to the legal representatives, to the members of the public, to the media, to members of correctional services, our technical staff and the members of the TRC, the translators, the logistics officers, our own media liaison people and the South African Police Service for the support that they have rendered in ensuring that these hearings proceed without any hitches. Thank you.

HEARING ADJOURNS