CHAIRPERSON: And the which matter will we be proceeding with now?
MS COLERIDGE: The next matter on the roll, Chairperson, is the applicant Tinyane, Amnesty Reference Number 7840/97. Adv Makhubele is representing Mr Tinyane.
CHAIRPERSON: Yes, thank you. Before we proceed, I'd just like to explain that these proceedings will be simultaneously translated and in order to benefit from the translation, you've got to be in possession of one of these devices. I'm told that channel 1 is Afrikaans, channel 2 is English and channel 3 is Sotho, so if you don't have one of these, they are obtainable from the sound technician.
Yes, I think we can now proceed with the application of Mr Tinyane. I'd at this stage request the legal representatives to kindly place themselves on record.
MS MAKHUBELE: Adv T A Makhubele from the Pretoria Bar on behalf of the applicant.
CHAIRPERSON: Thank you Ms Makhubele. Sorry, that isn't...
MS MOLOISANE: As it pleases you Mr Chair and Committee Members. My name is L M Moloisane. I also come from the Pretoria Bar. I appear for the victims in this matter.
CHAIRPERSON: Thank you Ms Moloisane.
MS COLERIDGE: Lynne Coleridge, appearing on behalf of the Truth and Reconciliation Commission.
CHAIRPERSON: Thank you Ms Coleridge. Ms Makhubele, I take it your client will be giving evidence?
MS MAKHUBELE: Yes, Mr Chairman, he will give oral evidence.
KHADAMILE TINYANE: (sworn states)
CHAIRPERSON: Ms Makhubele, are you having problems with your ear set?
MS MAKHUBELE: Yes, Mr Chairman, can you just bear with me?
JUDGE DE JAGER: Can you hear now?
MS MAKHUBELE: Yes, I can.
CHAIRPERSON: Yes, Ms Makhubele, you may proceed.
MS MAKHUBELE: Thank you Mr Chairman. Before I proceed, if I can just explain something? I had prepared an affidavit but then it appears it's going to be irrelevant because the charges that he dealt with in that supplementary affidavit, he was not found guilty on. He was charged with four counts. The first one was robbery of a 9mm pistol, the second and the third is possession of that pistol as well as ammunition and the fourth one, it's robbery of a pump gun, which he was not found guilty of. So the amnesty application only relates to counts 1, 2 and 3 and the affidavit which I gave to the Evidence Leader deals with count 4 on which he was acquitted.
CHAIRPERSON: Yes, but I see from the application form, Ms Makhubele, and I'm referring to page 2 of the bundle, if you take a look there it's in response to question 9(a), I mean 9(c), he refers to - no it's not that, sorry. So you're not - I just withdraw that. So you're not proceeding with the pump action? The fact that he's been acquitted doesn't necessarily mean that you need not apply for amnesty in respect of it. I notice the application form, it's fairly vague with regard to the offences for which he applies, but it doesn't apply to stealing of or robbing of arms.
JUDGE DE JAGER: On page 5(a), he has written a letter and there in the last paragraph, he refers to a shotgun being taken, paragraph 5.
MS MAKHUBELE: Page?
CHAIRPERSON: Page 5, the last paragraph, it says
"The accused, Mandla Alfred Tinyane and his group took a shotgun and damaged the patrol light delivery vehicle."
MS MAKHUBELE: Yes, Mr Chairman. That's one of the victims in - I do understand that we're going to touch on this particular incident, but my submission is that the affidavit doesn't deal with all the offences, it only deals with this particular one and it omitted the other ones. It's only when I consulted with him now that we clarified the issues.
CHAIRPERSON: Yes. You may proceed then with leading your witness.
MS MAKHUBELE: Thank you Mr Chairman.
EXAMINATION BY MS MAKHUBELE: Mr Tinyane, you're residing at Khuma Location in Sterkfontein, is this correct?
MR TINYANE: That is correct.
MS MAKHUBELE: You were convicted of the offences that occurred at Khuma Location during 1993, the first one is that you robbed one Sylvester Setwadi who was a police officer, of his 9mm pistol. The second one relating to the same pistol, you were found with this 9mm pistol, the third one, it relates to the ammunition of this very same pistol which you were found with and the fourth one, of which you were not convicted, on the 30th of April also at Khuma, there was a robbery whereby one Samuel Khumalo, also a police officer, was robbed of a pump gun. Do you recall this?
MR TINYANE: Yes, I do remember.
MS MAKHUBELE: You were sentenced to a period of seven years in respect of the first one, that of robbing a firearm, one year for possessing that firearm and six months for possessing ammunition. Is this also correct?
MR TINYANE: That is correct.
MS MAKHUBELE: You are here before this Commission today, rather this Committee today, to apply for amnesty in respect of these offences?
MR TINYANE: That is correct.
MS MAKHUBELE: Before we deal with the offences specifically, are you, or were you, a member of any political organisation at the time?
MR TINYANE: Yes, I was a member of the ANC.
MS MAKHUBELE: Any particular position?
MR TINYANE: I was a member of the Youth League.
MS MAKHUBELE: Can you deal with the incidents at Lily's Tavern, that form part of the circumstances under which these offences were committed on the 24th of April 1993?
MR TINYANE: We were at the shebeen and the two policemen arrived with a police vehicle and one of them was Mr Katha, he was together with Mr Sylvester and then Mr Katha remained in the van, rather Mr Sylvester and Mr Katha entered the shebeen and he met me at the door. I asked him why he entered the shebeen with a pistol because we as comrades were not allowed to enter such places with guns and at that time other people came and he ran away.
MS MAKHUBELE: Mr Tinyane, can you just slow down? Explain slowly so the Committee can hear what you're saying?
JUDGE DE JAGER: Sorry, is he now referring to the 23rd of April which I understand referred to the pistol and not the shotgun, because he's giving the same evidence now that's in the affidavit and that concerned the pump gun, the shot gun and not the pistol?
CHAIRPERSON: I think from what I can understand, the pistol was on the 23rd of April and the shotgun, or pump action gun was on the 30th of April. Is that right?
MS MAKHUBELE: Yes, Mr Chairman, the record says it's 24 April.
CHAIRPERSON: And we're now dealing with the 9mm pistol?
MS MAKHUBELE: Yes. Mr Tinyane, can you - the 24th of April relates to the 9mm pistol that was, that you took from Sylvester Setwadi and the incident relating to the pump gun occurred a week later. Can you start with the 24th of April incident, where you took a 9mm pistol from Mr Setwadi please?
MR TINYANE: Mr Setwadi was outside the tavern. I was accompanied by Marupi on that day, then I approached him because I saw that he had his gun and that gun was not hidden, so I took the gun from him and then he said to me: "Bring my gun" and I didn't answer him, I just took the gun and went away and then we entered the hostel. We were looking for other policemen and there were no other policemen and then from there we went away.
CHAIRPERSON: Sorry, Mr Tinyane, you say that you walked up to Mr Setwadi who was a policeman and took his gun. How did it come about that you could just walk up to him and just take his gun and go away, or did you have to overcome him at all? What - just give us a little bit more detail as to how you got possession of the gun that was with Mr Setwadi.
MR TINYANE: We were looking for guns that day because we didn't have them and then we decided that we were going to disarm any person who has a gun with him.
CHAIRPERSON: So how did you disarm Mr Setwadi? Did you just walk up to him and take the gun from him, or did you grab him and forcefully remove it or did you ask him for it and he gave it to you? If you could just tell us how you got to be in possession of the firearm of Mr Setwadi?
MR TINYANE: I didn't ask for that gun. I didn't fight him either. When I approached him, I just grabbed the gun from him and I left.
CHAIRPERSON: Where was the gun? Was it in his hand? Was it in his motor vehicle on the seat in a holster? If you could just give us details.
MR TINYANE: The gun was not in the holster, it was on his waist.
MS MAKHUBELE: Do you know if any person that you were with rendered him helpless so that you can just take the gun from him in the manner you described, like for instance assaulting him?
MR TINYANE: We did not assault him, I just grabbed the gun. I'm the person who grabbed that gun, but I was accompanied by Marupi, but he did not do anything.
CHAIRPERSON: Sorry. Was he in uniform?
MR TINYANE: No.
CHAIRPERSON: How did you know he was a policeman?
MR TINYANE: We stayed together in the township, so I knew that he was a policeman.
MS MAKHUBELE: Do you know if he was ...(indistinct). This incident occurred at the shebeen. Do you know if Mr Setwadi was on duty or if there was anything happening there that required police attention?
MR TINYANE: He was not in uniform, but I didn't know why he came there. He was in his private clothes.
MS MAKHUBELE: From the Court record, Mr Setwadi gave evidence to the effect that the house was burning or was being damaged, that's why he was at that place. A police property was under threat of damage.
MR TINYANE: No, it's not like that.
MS MAKHUBELE: What happened to the firearm that you took from him?
MR TINYANE: When they came to arrest me, they found the gun at home and they took it with them.
CHAIRPERSON: When was that? When were you arrested?
MR TINYANE: When they came to search that place, they found that gun and they took it with them. They were many policemen.
CHAIRPERSON: How many days after the theft of the gun or the robbing of the gun were you arrested?
MR TINYANE: It can be after three to four days.
CHAIRPERSON: Just before you proceed - we've heard that the incident involving the pump action gun took place on the 30th. Were you arrested before that and then released and then got involved in the pump action gun incident, or were you arrested after the 30th of April?
MR TINYANE: I will explain it this way. After taking that 9mm I kept it with me and thereafter we took a pump gun from Mr Khumalo, so when they came to take back that pump gun, they found the 9 mm as well.
JUDGE DE JAGER: I see according to the Court record on page 13, it was on the 2nd of June 1993 that they visited your house and arrested you and found the pistol. It's on page 13, line 12.
CHAIRPERSON: Would you dispute that, that you were arrested and they found the 9mm gun on the 2nd of June? That's about 6 weeks, 5 to 6 weeks after the ...(indistinct)
MR TINYANE: No, that is not true.
CHAIRPERSON: So more or less when, how long after the taking of the pump gun do you say that you were arrested?
MR TINYANE: I was arrested after some few days after I had taken that pump gun although I do not remember the days.
CHAIRPERSON: Yes, Ms Makhubele.
MS MAKHUBELE: Thank you Mr Chairman. According to the Court record, it's not only them, they're saying that a Z88 as well as a 9mm pistol were recovered from you. Is the Z88 the pump gun, or is this something else?
MR TINYANE: No, I know nothing about the Z88.
MS MAKHUBELE: But the pump gun and the 9 mm were recovered?
MR TINYANE: Yes, they found the 9mm with me and the pump gun was found at Michael's place, not at my place.
MS MAKHUBELE: What did you intend to do with these pistols, or the firearms?
MR TINYANE: We intended to defend ourselves with these guns.
MS MAKHUBELE: From what?
MR TINYANE: Against the police and those who were against us.
MS MAKHUBELE: Did any person give you this order to disarm the police and take their firearms?
MR TINYANE: That is what we decided as a youth, that we have to get ourselves guns.
MS MAKHUBELE: Any specific mandate?
MR TINYANE: No, we hadn't yet received that mandate, but there was a talk that we should get ourselves guns.
MS MAKHUBELE: If you recall, who in your structures gave this instruction or general mandate?
MR TINYANE: That is Jimmy.
MS MAKHUBELE: Do you know his surname?
MR TINYANE: Jimmy Lebaka, or Sebaka.
MS MAKHUBELE: Can you go further, although you were not found guilty on the pump gun incident, can you tell the Committee what happened there on the 30th of February?
JUDGE DE JAGER: Sorry, could I just find out, are you - I know he's been found not guilty, but you're entitled still to apply for amnesty in that regard, as was pointed out to you. Are you proceeding to ask for amnesty in regard to the pump gun?
MR TINYANE: Yes, I do.
JUDGE DE JAGER: Thank you. You can proceed.
MS MAKHUBELE: You were also at Lily's Tavern on the 30th of April 1993. What happened there?
MR TINYANE: On that day, we were at Lily's place and two policemen arrived there. One of them entered the Lily's Tavern and when he entered, he met me at the door and then I asked him how he entered the shebeen with a gun because we were not allowed to enter that place with guns. He did not answer me and there immediately people came from behind and they were pushing him, so when this policeman ran away, I went to the van and there I found one policeman inside, when he opened the door, he ran away and he left that pump gun in the van and it was taken by Charles and he left with it.
MS MAKHUBELE: Do you know these two police officers, their names?
MR TINYANE: Yes, I do.
MS MAKHUBELE: Who are they?
MR TINYANE: Mr Katha and Mr ...(indistinct)
MS MAKHUBELE: I take it those are their calling names, do you know what their official names are?
MR TINYANE: The other one is Mr Mogwera and the other one I think is Mr Khumalo.
JUDGE DE JAGER: You could lead him on that, I don't think it's in dispute.
MS MAKHUBELE: Thank you, Mr Chairman. What did you do with this pump gun after the police officers ran away?
MR TINYANE: We took this gun and we went to Potchefstroom and we slept over there and the person who took us there came with Jimmy and James to us and other people and they asked us to give them the guns that we have taken from the police and they left with this gun to the township. After they have left, we also left to the township and that is when we were arrested.
MS MAKHUBELE: Did you assault the police officers or damage their property, like the motor vehicle they were travelling in?
MR TINYANE: Yes, we damaged the vehicle, but it was not damaged by us, it was damaged by the people who were left behind there at the Tavern, because our intention was just to take the guns.
MS MAKHUBELE: Under whose instructions did you do this, the second incident?
MR TINYANE: That is the decision that we took ourselves.
MR SIBANYONI: Maybe, can you just explain between Mogwera and Khumalo, who is Katha and who is Vice?
MR TINYANE: Mr Mogwera is Katha and Mr khumalo is Vice.
MR SIBANYONI: Thank you.
MS MAKHUBELE: You say the pump gun was not recovered in your possession. Do you know if it was recovered and if so where?
MR TINYANE: We told them where the pump gun is and they went there, so I don't know whether they found it at James' place or Jimmy's place.
MS MAKHUBELE: According to the Court record, you denied any involvement in these two incidents and now before the Committee you're admitting. Can you tell us why you denied in Court?
MR TINYANE: The reason why I didn't tell the truth in Court is because I was confused and after some days I realised that I should have told them the truth.
MS MAKHUBELE: Did you gain anything material for your actions, for taking these guns from the police officers?
MR TINYANE: No.
MS MAKHUBELE: And how do you feel about these incidents?
MR TINYANE: I am very sorry about this.
MS MAKHUBELE: What are you asking from the Committee and the victims?
MR TINYANE: I ask them to forgive me for everything that I did.
MS MAKHUBELE: That's the applicant's evidence-in-chief.
NO FURTHER QUESTIONS BY MS MAKHUBELE
CHAIRPERSON: Ms Moloisane, do you have any questions you'd like to put to the applicant?
MS MOLOISANE: As it pleases this Committee, Mr Chairman.
CROSS-EXAMINATION BY MS MOLOISANE: Mr Tinyane, you say you were a member of the ANC Youth League, did you have any card for that or were you a card carrying member thereof?
MR TINYANE: Yes, I do have it.
MS MOLOISANE: Do you still have it?
MR TINYANE: No, it is not with me now.
MS MOLOISANE: Who was the original Chairman of the ANC Youth League?
MR TINYANE: James Msolela.
MS MOLOISANE: Did you belong to the armed wing of the ANC at that time?
MR TINYANE: No.
MS MOLOISANE: Now you have told this Committee that one Jimmy Lebaka or Sebaka gave you instructions. What kind of instructions basically did he give you regarding the incident of the 24th of April?
MR TINYANE: We had a meeting with Jimmy Lebaka and in that meeting he said that we should get ourselves some guns, although he did not give us the time when we were going to get ourselves guns.
CHAIRPERSON: Sorry, Ms Moloisane. Jimmy Lebaka, did he hold any position, if so what?
MR TINYANE: He was a member of a Civic Association.
CHAIRPERSON: Ok Khuma?
MR TINYANE: That's correct.
CHAIRPERSON: Now you said "we" had a meeting, so who - was it a Civic Association meeting? Who had the meeting when he said that you must get guns?
MR TINYANE: It was not a Civic Meeting, it was a Youth League Meeting.
CHAIRPERSON: Was Jimmy Lebaka a member of the ANC?
MR TINYANE: Yes.
MS MOLOISANE: What portfolio did Jimmy Lebaka hold within the Youth League?
MR TINYANE: He was the person who was giving us instructions most of the time.
MS MOLOISANE: But what portfolio did he hold within the Youth League, I repeat?
MR TINYANE: James was the Chairman and I don't remember what position did Jimmy hold, but he was the person who was giving us instructions. If for example we were supposed to go and burn a house, he was the person who was going to give us the instructions to go and burn that house.
CHAIRPERSON: Was he a member of the Youth League, Jimmy Lebaka?
MR TINYANE: Yes, he was one of us.
CHAIRPERSON: Was he about your age, or was he older?
MR TINYANE: He was older than myself.
CHAIRPERSON: I see that from the application form you say you were born in 1971, is that correct?
MR TINYANE: That is correct.
CHAIRPERSON: Approximately how much older than you was or is Jimmy Lebaka?
MR TINYANE: He can be 3 to 4 years older than myself.
MS MOLOISANE: So you say Jimmy Lebaka was your Chairman?
CHAIRPERSON: I think he said James was, that's James ...
MS MOLOISANE: Msolela.
CHAIRPERSON: Yes, Msolela was the Chairman, but he doesn't know what position Jimmy Lebaka had in the Youth League, but he was one of them, he says.
JUDGE DE JAGER: Do you know whether Jimmy Lebaka was an MK soldier?
MR TINYANE: No, he wasn't.
JUDGE DE JAGER: Was he appointed as a Commander in your area, as far as you know?
MR TINYANE: He was not a Commander.
CHAIRPERSON: Sorry, Ms Moloisane. I just want to clear this up. If he wasn't a Commander and you didn't know what position he held, why did you then take orders from him? Why did he give you instructions and you obeyed them, if he wasn't a Commander and he wasn't an MK and you don't know what position he held?
MR TINYANE: He was older than ourselves and he was more enlightened than ourselves.
MS MOLOISANE: Did you verify this instruction with the Chairman, James Msolela?
MR TINYANE: Yes, we did verify that with him, after we had taken the guns from the police.
MS MOLOISANE: I'm referring to the day - I mean prior to the taking of the first gun, that is the 9mm Z88 pistol on the 24th of April.
MR TINYANE: No, we did not verify before with James.
MS MOLOISANE: Who was your original secretary?
MR TINYANE: It was Jimmy.
MS MOLOISANE: Now is it not so that the armed struggle was being waged by the armed wing of the ANC, that is Umkhonto weSizwe?
CHAIRPERSON: Well, I think we're talking 1993 now, aren't we? The armed struggle ...
MS MOLOISANE: Had been suspended.
CHAIRPERSON: Yes, at that stage.
MS MOLOISANE: As it pleases you, Mr Chair. Now for what purpose were you going to arm yourselves?
MR TINYANE: I have already explained that we had problems in the township.
MS MOLOISANE: What kind of problems did you have in the township?
MR TINYANE: At another township next to ours, there were people who were given guns by the police to kill.
MS MOLOISANE: So after disarming Mr Setwadi of his pistol on the 24th of April, you kept the gun for yourselves, is that not so?
MR TINYANE: That's correct.
MS MOLOISANE: And you never, I mean, reported to anybody within the - or let me put it this way, you never reported to either Mr James Msolela, nor to Jimmy Lebaka about the guns, is that not so?
MR TINYANE: That is correct, but they knew thereafter that I have a gun with me, taken from the policemen.
MS MOLOISANE: But you never reported to them that you had disarmed the police of that gun?
MR TINYANE: I did not tell them.
MS MOLOISANE: Why did you not tell them at that stage?
MR TINYANE: I didn't have time to do that because I was working and Marupi also wanted this gun.
MS MOLOISANE: I put it to you that the reason why you did not report this incident was because you took this gun for criminal motives.
MR TINYANE: I agree.
MS MOLOISANE: Now let's go ...(intervention)
CHAIRPERSON: Sorry, you say you agree? You took the gun to use in crimes, for criminal matter? What crimes did you intend to commit with the gun?
MR TINYANE: We were going to shoot the Inkatha people.
CHAIRPERSON: Sorry Ms Moloisane. Did you have - was it just the Youth League that was doing this, or was there some sort of self-defence unit that had been set up there?
MR TINYANE: No, this was done by the youth only.
CHAIRPERSON: So now you've got a gun, what were you going to do, go out into the streets looking for people who supported the IFP and murder them?
MR TINYANE: That's correct.
MR SIBANYONI: I'm sorry, Chairperson. Was there no branch of the ANC in the area?
MR TINYANE: We didn't have an office.
MR SIBANYONI: But was there a structure of the ANC branch?
MR TINYANE: Well, I don't understand what you mean by that?
MR SIBANYONI: We understand that you were only the Youth League, so normally apart from the Youth League, there will be an ANC branch. I wanted to find out whether there was such a branch of the ANC in the area. You said there was none.
MR TINYANE: Yes, there was one.
MR SIBANYONI: But you have never referred to it. Was there any relationship between the Youth League and that branch?
MR TINYANE: May you please repeat, I don't understand.
MR SIBANYONI: Was there any communication, any contact between the Youth League and the ANC branch?
MR TINYANE: Yes, there was one.
MR SIBANYONI: Who was the Chairperson of the ANC branch?
MR TINYANE: It was Mr Marule.
MR SIBANYONI: What contact or what communication was there between the branch and the Youth League?
MR TINYANE: I don't understand what you mean.
MR SIBANYONI: Did the Chairperson of the ANC, you have just mentioned, know about this campaign of yours of disarming people of firearms?
MR TINYANE: Well I don't know because we did that because we had agreed on that during our discussions as youth.
MR SIBANYONI: It would appear as if you as youth never accounted to the ANC branch, in other words you never reported your activities to the ANC branch.
MR TINYANE: You are right, but after some days, one of us will go to them and tell them what we have decided upon and what we are going to do.
MR SIBANYONI: Apart from the Chairperson, were there any members of the executive of the ANC branch?
MR TINYANE: Yes, they were there.
MR SIBANYONI: How many?
MR TINYANE: There were many.
MR SIBANYONI: Okay, can you give a figure, an exact figure?
MR TINYANE: I think there were five.
MR SIBANYONI: What was their reaction when you reported to them about what you have decided? What was the reaction of the ANC branch?
MR TINYANE: They did not disagree with us.
MR SIBANYONI: Thank you, Mr Chairperson.
CHAIRPERSON: Ms Moloisane.
JUDGE DE JAGER: Did they ask for the guns, that you should hand it over to the ANC?
MR TINYANE: Yes, they took those guns themselves. They took the pump gun because the 9mm was already taken by the police.
JUDGE DE JAGER: Ja, but you didn't hand over the 9mm to them, why not?
MR TINYANE: ; Yes, I did not.
JUDGE DE JAGER: Why not?
MR TINYANE: Because I wanted it for myself. I wanted to use it myself, because it's myself and Marupi who took it from the policeman.
JUDGE DE JAGER: Did you report this to the ANC branch committee? Did you tell them that you've taken this 9mm?
MR TINYANE: They were told by Marupi. I did not go there to tell them.
JUDGE DE JAGER: And do you know how they reacted, what did they say?
MR TINYANE: They agreed because one of them came to me. He wanted us to exchange these guns. He had his own gun and he wanted mine.
JUDGE DE JAGER: Who was that person?
MR TINYANE: James.
JUDGE DE JAGER: Now James, was he also a member of the ANC branch, or was he a committee member of a branch?
MR TINYANE: Yes, that's correct.
JUDGE DE JAGER: So he wasn't only involved in ANCIL, he was also involved in the senior organisation?
MR TINYANE: That's correct.
JUDGE DE JAGER: Do you know what position he held in the senior organisation?
MR TINYANE: He was in the Executive of the ANC.
MR SIBANYONI: Now if there was an Executive of the ANC, why should instructions be given by Jimmy Lebaka, whom you said was a member of the Civic Association?
MR TINYANE: Most of the time, Jimmy was the only person who was attending our meetings and he will always come to address us after he has attended the Executive meetings as well.
MR SIBANYONI: Of which structure? Executive meetings of which organisation?
MR TINYANE: From the ANC meetings.
MR SIBANYONI: Why, in your evidence-in-chief you never mentioned this ANC Executive until when I started asking you questions?
MR TINYANE: Sorry? May you please repeat?
MR SIBANYONI: Why, at the beginning of your evidence and until the time you were asked questions by Ms Moloisane, you never mentioned that there was an ANC branch, a formally elected structure, or Executive, until recently when I started asking you questions? Why you never referred to it?
MR TINYANE: You will forgive me, Sir.
MR SIBANYONI: Or if I can ask you, even in your application form, you never spoke about an ANC in your area, why not?
MR TINYANE: The reason is that I realise that I'm alone in prison because the people who were supposed to be with me in prison, are not imprisoned, so I'm here by myself.
MR SIBANYONI: And who are those people?
MR TINYANE: Those are the people who were arrested with me.
MR SIBANYONI: You are aware that when you apply for amnesty, you've got to tell us everything and exactly as it happened, you are aware of that?
MR TINYANE: Well I didn't understand that before.
MR SIBANYONI: What do you imply by that? Are you saying you were not aware that you've got to tell us exactly the truth?
MR TINYANE: I understand that I have to tell the truth, but I don't know how I can put it to you, Sir.
MR SIBANYONI: Thank you, Mr Chairperson.
CHAIRPERSON: Ms Moloisane.
MS MOLOISANE: Thank you, Mr Chair. Did you also disarm Inspector Mogwera of his pump action gun, that is the service pump action gun that he had on the 30th of May 1993 with him, in order to murder people therewith?
MR TINYANE: That is correct.
MS MOLOISANE: And you say you did not cause any damage to the vehicle that was driven by Insp Mogwera on the 20th of May 93?
MR TINYANE: If there was any damage, I did not see it because I had already left then.
MS MOLOISANE: But my instruction is that you fired into this vehicle with a pump action gun immediately after having disarmed Insp Mogwera thereof, thereby causing damage to it. What is your response?
MR TINYANE: I didn't have this pump gun at that time because I only had this with me when we arrived at Potchefstroom. The people who shot with that pump gun, I don't know them because we were far away from that place when the vehicle was shot with the pump gun.
CHAIRPERSON: Sorry, Ms Moloisane, if we could just clear up this aspect. When the gun was taken from the vehicle, you said a whole lot of people came and the policeman who was in the vehicle, ran away and the pump action gun was taken out of the vehicle, is that what you said?
MR TINYANE: That is correct.
CHAIRPERSON: Who actually took the gun, the rifle, the shot gun?
MR TINYANE: It's Charles.
CHAIRPERSON: Were you present when that occurred? Were you in his presence?
MR TINYANE: Yes, I was present.
CHAIRPERSON: And did - what happened then with Charles? what did he do after he had taken the gun?
MR TINYANE: We ran towards the grave yard.
CHAIRPERSON: The two of you?
MR TINYANE: No, we were eight.
CHAIRPERSON: Including Charles?
MR TINYANE: That's correct.
CHAIRPERSON: So you ran to the grave yard and then you got away and went to Potchefstroom.
MR TINYANE: That's correct. We were fetched by the kombi there and then we left for Potchefstroom.
CHAIRPERSON: So it would seem from what you are saying that on your version, from the time that the gun was taken out of the vehicle until the time that you ran away through to the grave yard, you were in the presence of Charles who had the gun?
MR TINYANE: That's correct. Myself, I had a 9mm.
CHAIRPERSON: Yes. Now what Ms Moloisane is putting to you is that her instructions are from her client and she represents the police person from whom the gun was taken, is that that same gun that was taken out of the vehicle was used to blast holes in the vehicle, they shot at the vehicle with that gun. Now if that happened, it must have been in your presence and she's asked you your comments on that. She's saying that - she put it to you that after the gun was taken out of the vehicle, it was used to shoot the vehicle, to damage the vehicle, what do you say to that? Whether it was you yourself who pulled the trigger, or somebody else who pulled the trigger, it doesn't matter, but the fact is that was the gun used to shoot at the vehicle?
MR TINYANE: No, I don't know because I did not shoot and all the people who were with me, did not shoot towards this vehicle.
MS MOLOISANE: I will leave it there. Now on page 2 of your application, paragraph 10 thereof, or rather paragraph 10(a), the last sentence, you say
the life of our community was in danger because of the last kick of a dying horse",
what do you mean by this?
CHAIRPERSON: Take a look Mr Tinyane, perhaps Ms Makhubele you can show it to him. It's page 2, paragraph 10(a). I'll read it, just for record purposes, the words that were read out by Ms Moloisane. It says
"The life of our community was in danger because of the last kick of a dying (it says house but I'm sure it means horse) - because of the last kick of a dying horse".
now she's asking you, what did you mean by that? Paragraph 10(a). The whole paragraph. I'll read it, it's short. It says:
"State political objective to be achieved."
That's the proforma question and your answer is:
"Disarm the enemy and arm the people."
"Reasons. They supported only one political party, IFP. The life of our community was in danger because of the last kick of a dying horse."
MR TINYANE: The person who helped me to fill in this form is one of the inmates at prison, so I don't understand why he wrote like that, why he wrote about the dying horse.
MS MOLOISANE: Is it not so that whatever he was writing down came from you?
MR TINYANE: No.
MS MOLOISANE: Is it also correct that prior to your arrest and detention on the 2nd of June 1993, you had never before been detained? Is that not so?
CHAIRPERSON: Sorry, are we talking about, in respect of these incidents or in his whole life?
MS MOLOISANE: During 1993.
MR TINYANE: No, it was not for the first time.
MS MOLOISANE: Let me rephrase that. You had never, before the 2nd of June 1993 when you were arrested and detained, been detained for anything concerning or rather for reasons of political involvement in the community or in South Africa as a whole?
MR TINYANE: Yes, I was arrested before, before I was arrested on this day.
MS MOLOISANE: For political reasons?
MR TINYANE: No, that was not for political reasons.
MS MOLOISANE: That's what I'm asking you. The reason why I'm asking you this is because on page 2 of your application, paragraph 10(b), you say, I mean regarding your justification for this act, you say
"The tri-cameral Constitution didn't protect and guarantee fundamental rights for blacks and police violated our natural rights by detaining us without good reason, with no correct legal procedure."
Will you elaborate on what you meant by that?
MR TINYANE: Yes, I can explain.
MS MOLOISANE: Proceed.
MR TINYANE: When you're going to the police station to launch a complaint, they would not take that seriously. I once went to the police station to complain about the injury that I sustained, but they did not take me seriously.
MS MOLOISANE: I think you are losing track. You said
Police violated our natural rights by detaining us without good reason, with no correct legal procedure."
That's the last portion of this paragraph 10(b) and prior to me asking you this question, I asked you whether you had ever before the 2nd of June 1993, when you were arrested in connection with this incident, been detained for political reasons and you said no. Now why do you say police violated your rights by detaining you without good reason, with no correct legal procedures? I mean in answer to your justification for having committed these acts for which you are now applying for amnesty.
MR TINYANE: I won't be able to explain what is written there because the person who helped me to fill in this form didn't write what I explained to him.
JUDGE DE JAGER: When were you arrested for your involvement in the theft of cables, copper cables?
MR TINYANE: I do not remember the date.
JUDGE DE JAGER: Was it before you grabbed the pistol, or after that incident? Before April 1993 or thereafter?
MR TINYANE: That is after. That is after we have disarmed the police.
JUDGE DE JAGER: And when did this incident occur, when the copper cable was stolen?
MR TINYANE: It can be during 1994, although I have forgotten the exact date.
CHAIRPERSON: As I see Mr Tinyane, just to perhaps refresh your memory, if you take a look at page 7 of the record, that is a copy of your previous convictions that were no doubt handed in at the trial of this matter, which happened subsequently, it says that you were convicted in the Regional Court in Klerksdorp, Case no 74093 on the 15th of September 1993 and there's another date, the 24th of November 1993. I think that's the date of sentencing. So it was during 1993, that's the copper wire case. You got four years imprisonment, suspended for five years on certain conditions and you were found to be an accomplice to the theft of copper cables.
MR TINYANE: I was not an accomplice, I was a taxi driver and people came to me, they asked me to go and fetch their property at the mine, so when they were arrested, they said they were with me.
CHAIRPERSON: No, we're not really interested in the copper cable case, I'm just reading what it says here. It says "medepligtige tot diefstal" but why I mentioned it, you were asked by Judge de Jager when that occurred, the copper wire incident and you said you thought it was 1994. I'm just pointing out it couldn't be, because you were convicted in 1993 of it.
JUDGE DE JAGER: Could I try and assist you? Was it before you were arrested because of the gun you had, or was it after your arrest when you drove the taxi and fetched the belongings of the other people?
MR TINYANE: The first time, I was arrested firstly for disarming the police and thereafter I was arrested for the copper cables because I remember at that time I was on bail and then when I was arrested for the copper cables, they gave me a free bail, because I was already on bail concerning this incident.
JUDGE DE JAGER: Thank you.
MS MOLOISANE: Thank you Mr Chair and Committee Members, I have no further questions.
NO FURTHER QUESTIONS BY MS MOLOISANE
CHAIRPERSON: Thank you. Ms coleridge.
MS COLERIDGE: Thank you Chairperson.
CROSS-EXAMINATION BY MS COLERIDGE: I just want to take you through your statement that was submitted to the Commission. It's page 3(a) of the bundle, Chairperson, it's the second paragraph. You state, Mr Tinyane, you state
"My case is not a criminal offence, I am a political offender."
Can you just explain that to us? What do you mean by that, my case is not a criminal case?
MS MAKHUBELE: Which page?
CHAIRPERSON: Page 3(a). It's the typed version of the statement which appears on page 4, second paragraph.
"My case is not a criminal offence, I am a political offender."
Now Ms Coleridge is asking him, what does he mean by that.
MR TINYANE: I was referring to the case involving the disarming of guns from the police.
MS COLERIDGE: So you regarded that as a political case, is that correct?
MR TINYANE: That's correct.
MS COLERIDGE: And then the killing of IFP members in using that firearm, would you regard that as a political case, or a criminal case?
MR TINYANE: ; I regard it as a political case.
MS COLERIDGE: Because when Mr Moletsane asked you what you were going to do with the firearms, you said that you were going to involve yourself in criminal activities. Can you remember that?
MR TINYANE: Yes, I do remember.
MS COLERIDGE: Now what kind of criminal activities, can you explain to us, were you going to involve yourself in?
MR TINYANE: They are the same as what I have already explained here.
MS COLERIDGE: ; So you would say that - would you distinguish between the two? Would you distinguish between the act with the policeman and maybe, I know - I just want to get some clarification, between the acts of the policeman and the IFP members, the killing of IFP members? Would you distinguish between the two, that it would be political and criminal, or can't you distinguish between the two?
MR TINYANE: I don't understand what you mean.
MS COLERIDGE: Why I'm asking you, because there was just a slight contradiction in a sense when you were asked what you were going to do with the firearms and you said you were going to use it for criminal activities and in your application and your subsequent submissions, you stated that you were involved and that you were a political offender and I just wanted to know, it seems to me that you understand the concept of a political offender and offence, it seems that you understand that concept and you differentiate in your submissions between the two, but yet when you were asked about the weapons that you had, you stated that you wanted to use it for a criminal act. Do you understand the contradiction between the two?
MR TINYANE: Yes, I do understand you.
MS COLERIDGE: So can you explain to us, do you distinguish between criminal and political?
MR TINYANE: I'm unable to do that because when we attack the policemen it is also criminal.
JUDGE DE JAGER: Suppose you would steal a TV from a shop, would you say that's a crime or would you say it's a political offence?
MR TINYANE: That is stealing, it's very clear that it's criminal.
JUDGE DE JAGER: ; And what would you say is a political offence?
MR TINYANE: It's when you have problems with police, fighting with police and other organisations.
CHAIRPERSON: Any further questions?
MS COLERIDGE: Yes, Chairperson, just one other issue. You said that Mr Setwadi wasn't assaulted, in your evidence-in-chief, is that correct?
MR TINYANE: That's correct.
MS COLERIDGE: Because I just want to read on page 12 Chairperson, of the bundle, it seems that Mr Setwadi was actually assaulted. Just below line 10, that's line 11 Chairperson, he states
"One of the persons that he, as the accused, had identified as a friend, suddenly assaulted him and hit him in the fact with a fist and during the same time, the accused who was also on the scene, grabbed his 9mm pistol away from him."
Now that seems a different scenario as to what you sketched. Can you explain why you said that the policeman was not assaulted?
MR TINYANE: I did not assault him, I just grabbed the gun. Well, I didn't see when he was assaulted.
MS COLERIDGE: But wasn't this person with you, your friend?
MR TINYANE: Yes, he was with me.
MS COLERIDGE: Was your friend Marupi, was he with you on this occasion?
MR TINYANE: Yes, he was with me.
MS COLERIDGE: So it seems that you two were involved in this very same incident, how come you didn't see Marupi assaulting him?
MR TINYANE: I had already got what I wanted from this policeman.
MS COLERIDGE: No, but you only took the weapon after Marupi actually assaulted him and that is what Setwadi said.
MR TINYANE: I didn't see him hit him with a fist, I did not see him when he assaulted him, I just grabbed the gun from the policeman.
MS COLERIDGE: But you state in your evidence-in-chief that the policeman was not assaulted.
MR TINYANE: Yes, I repeat that.
MS COLERIDGE: And it seems that he was in fact assaulted by your friend, Mr Marupi.
MR TINYANE: I repeat again, I didn't see him doing that and at that time I had already got what I wanted from this policeman.
MS COLERIDGE: Did you and Marupi plan this attack on ...
INTERPRETER: The speaker's microphone.
MR TINYANE: He was not present when we planned this, but on that day when we disarmed the policeman, he was present.
MS COLERIDGE: So how did he know that you were going to disarm the policeman?
MR TINYANE: I had already told him and I showed him the policeman who had the gun and I told him that: "I want us to take that gun from the policeman."
MS COLERIDGE: Was Marupi part of the Youth League? Was he a member of the Youth League?
MR TINYANE: He was a member of the MK.
MS COLERIDGE: Were the other members of the Youth League or MK with you with the disarming of Setwadi?
MR TINYANE: They were not present.
MS COLERIDGE: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Ms Makhubele, do you have any re-examination?
MS MAKHUBELE: Yes, Mr Chairman.
RE-EXAMINATION BY MS MAKHUBELE: Mr Tinyane, how far did you go at school?
MR TINYANE: Standard 5.
MS MAKHUBELE: Which year?
MR TINYANE: I think it was in 1991.
MS MAKHUBELE: At that time, or even now, were you or are you conversant with the political structures, what it entailed within the organisation that you belonged to, the ANC Youth League, who was who and who was supposed to do what? Were you conversant with this?
MR TINYANE: I didn't have thorough knowledge then.
MS MAKHUBELE: In response to one of the questions you said that you kept the gun to yourself because you and Marupi were the ones who disarmed this person and you wanted to use it. What was the instruction for obtaining firearms? What did it entail? That you take it, you use it or you take it to a common pool where they were going to be distributed?
MR TINYANE: We were told that we should keep them ourselves.
MS MAKHUBELE: And when James and Jimmy came for the pump gun, why didn't you disclose that you had a 9mm with you?
MR TINYANE: They wanted to know where the 9mm was, so I explained to them that it's at my place.
MR MAKHUBELE: Can you, I just want to show you the affidavit I referred to and that I believe is with - the Committee has it. Page 5. I'm just going to read to you paragraph 5(1)
"I finally submit that the political climate at the time required us to defend ourselves as well as out community and since we did not have the means to do so, we resorted to acts which when looked at in isolation, amounted to criminal activities."
Do you understand what you meant here?
MR TINYANE: I don't understand that clearly.
CHAIRPERSON: Sorry, just while we're dealing with that, Ms Makhubele. We received this statement this morning. Perhaps we could ask the applicant - have you seen this statement before? Is that your signature at page 5? If you could just show it to him, please Ms Makhubele.
MR TINYANE: Yes, that's my signature.
CHAIRPERSON: Do you know what the contents, do you know the contents of this statement?
MR TINYANE: I do remember the statement, although I don't remember everything in it.
CHAIRPERSON: Yes, I'm referring to it as a statement rather than an affidavit Ms Makhubele, because I see, well my copy, there's no signature from a Commissioner of Oaths.
MS MAKHUBELE: That's correct. You indicated in the statement referred to, on page 1 of the bundle, that you are not the person who actually wrote, but that you were explaining to some other person who wrote it for you. Was this also the position with this one?
MR TINYANE: This one was written by my Counsel.
MS MAKHUBELE: You were repeatedly asked this differentiation between criminal and political motives. If you were to have robbed the police officers of this firearm at any other time when you had no problems with them, how would you classify that action? By problems, I mean political situation, how would you classify that action?
MR TINYANE: I will regard that as a criminal act.
MS MAKHUBELE: And if you were to have intended to kill say an IFP member when there's no political unrest, how would you regard that action?
MR TINYANE: I will regard it as criminal act.
JUDGE DE JAGER: ... (indistinct - no microphone) follow up on this. You had this gun, the pistol for more than a month before you were arrested.
CHAIRPERSON: Sorry, just on that I was going to ask the question. I notice, sorry - ja. We've heard today that the pistol was taken on the 24th of April and that the pump gun was taken on the 30th of April, but I see from the - ja but we've heard the 30th of April, but in fact from the record from the judgment of the trial and from the two statements we have from the victims, that the pump gun was actually taken on the 30th of May 1993, not April. Do you agree with that? The pump gun was taken a long time after the taking of the 9mm pistol, 5 weeks. If you take a look at page 5 (b) for instance, it was Sunday the 30th of May that the pump gun was taken, not the 30th of April and then you were arrested on the 2nd of June, three days after the taking of the pump gun, some 6 weeks after the taking of the 9 mm pistol. Do you agree with that?
MR TINYANE: Yes, I would.
CHAIRPERSON: Yes. So now what Judge de Jager is asking you, putting to you is that you had that 9mm pistol for a long time before your arrest, approximately 6 weeks.
JUDGE DE JAGER: During that period, did you see any IFP members and if so, why didn't you shoot them?
MR TINYANE: I did not meet them and most of the time I didn't have the gun with me.
JUDGE DE JAGER: Right. Now you also considered the police to be your enemies, is that right?
MR TINYANE: That is correct.
JUDGE DE JAGER: Why didn't you shoot the police when you took the weapon?
MR TINYANE: We actually wanted to have more guns, so we didn't see it necessary to attack them because we didn't have enough ammunition.
JUDGE DE JAGER: Ja, well I think it's fortunate that lives weren't taken at this stage. I'm not quarrelling with you about that, but if you intended to use the guns against your enemy and here's a policeman running away, why didn't you shoot at him?
MR TINYANE: It was not yet time for me to shoot them.
JUDGE DE JAGER: Right. Thank you.
CHAIRPERSON: Ms Makhubele.
MS MAKHUBELE: Thank you Chair. Did any problem arise say between your organisation and the IFP or the police during that period after you took the first gun, or was the situation calm?
MR TINYANE: The situation was still calm.
MS MAKHUBELE: I have nothing further, Mr Chairman.
NO FURTHER QUESTIONS BY MS MAKHUBELE
CHAIRPERSON: Thank you. Mr Sibanyoni, have you any questions you'd like to put to the applicant?
MR SIBANYONI: Yes, thank you Mr Chairperson. Mr Tinyane, was there any conflict in your area between the IFP and the Youth League?
MR TINYANE: No.
MR SIBANYONI: Was there any conflict between the police and your organisation, the ANC Youth League?
MR TINYANE: There was.
MR SIBANYONI: Can you tell us what exactly happened? Were there any incidents?
MR TINYANE: The police once injured one of us and that resulted in a conflict between ourselves and them.
MR SIBANYONI: Who is that person who was injured by the police?
MR TINYANE: It's one of the members of the ANC.
MR SIBANYONI: What is his or her name?
MR TINYANE: I have forgotten his name.
MR SIBANYONI: Why did the police injure him?
MR TINYANE: Well, I don't know because he was injured at that Lily's Tavern.
MR SIBANYONI: So you don't even know why he was injured?
MR TINYANE: Yes, I don't.
MR SIBANYONI: Normally police people are trained to use firearms, now can you explain why was it so easy, according to you, to disarm Mr Setwadi? Didn't he try to offer resistance when you were disarming him?
MR TINYANE: He did not try to resist.
MR SIBANYONI: Now you say you pointed out the policemen to your friend, Marupi and if it is true that your friend assaulted him, how was it possible that you didn't notice it?
MR TINYANE: I don't know why I didn't notice that because we were all outside.
CHAIRPERSON: You see, in that extract that was read from the trial record, according to Mr Setwadi's evidence, he was assaulted by being struck on the face with a fist and at the same time he said you took his gun, so the taking of the gun and the assault weren't two separate incidents, they happened as one transaction at the same time. That's according to the Court evidence.
MR TINYANE: To tell the truth, when he was hit with a fist, I didn't notice that because I only concentrated on the gun.
MR SIBANYONI: When I asked you a question earlier, you said you were not aware that you should tell the truth. I want to be clear that I understand you properly. Do you mean there is something you are withholding from this Committee?
MR TINYANE: No.
MR SIBANYONI: What you are telling us is the whole truth as it happened?
MR TINYANE: That is correct.
MR SIBANYONI: Thank you, Mr Chairperson, no further questions.
CHAIRPERSON: Judge de Jager, any questions you'd like to ask?
JUDGE DE JAGER: No questions, thank you.
CHAIRPERSON: I just want to clarify something Mr Tinyane. In response to a question put by Mr Sibanyoni to yourself a moment ago you said that there wasn't conflict between ANCIL and the IFP in your area, is that correct?
MR TINYANE: That is correct.
CHAIRPERSON: So then why did you want to take a gun to shoot IFP members?
MR TINYANE: I said there is a township near our township. At that place police were giving IFP members guns to attack the community so we disarmed the police because we wanted to help those people in that township.
CHAIRPERSON: Okay. So your township, Khuma, there wasn't any conflict but in an adjacent township, what was the name of that other township, by the way? You say there was conflict.
MR TINYANE: That is at Tigane and our Township was Khuma.
CHAIRPERSON: Now was there a branch of the ANC Youth League in Tigane?
MR TINYANE: I don't know but they would normally come to us for help.
CHAIRPERSON: When you say they, that was who, people from Tigane?
MR TINYANE: The youth from Tigane.
CHAIRPERSON: Did you use the gun at all in the period that you had it in your possession, namely from the 24th of April to plus minus the 2nd of June?
MR TINYANE: No, I have never used it.
CHAIRPERSON: Do you know how to use a firearm?
MR TINYANE: Yes, I do.
CHAIRPERSON: Were you trained in the use of it, of firearms?
MR TINYANE: No, I was never trained but I know how to use it.
CHAIRPERSON: So just finally, you've now got the firearm, you've dispossessed Mr Setwadi of it, you've got it at your home, you've had it for six weeks. What were you going to do, were you just going to wait, or when were you going to get around to shooting IFP members?
MR TINYANE: I will explain it this way. If they were coming to attack us, I would use my gun as well to shoot back.
CHAIRPERSON: So you wouldn't have been proactive and gone in either alone or together with some of your comrades into that Tigane and seek out IFP members and just shoot them, as you said earlier? You were going to have that gun for defence purposes, is that what you're saying now?
MR TINYANE: That is correct.
CHAIRPERSON: So now I'm quite confused. You earlier said that you were going to take the gun and you were going to go and look for IFP members and shoot them. Now you say that you took the gun to keep it in case you were attacked by IFP members and then you would use it in defence. Now could you just give me a final answer, what exactly was your intention relating to the gun?
MR TINYANE: This 9mm was with me, I kept it with me. If the Inkatha people were coming to attack us, I would defend myself with this gun because we were still trying to get other guns as well. We only had this one with the pump gun.
CHAIRPERSON: Yes, are there any questions arising Ms Makhubele, from questions that have been put by members of the Panel?
MS MAKHUBELE: None, Mr Chairman.
NO RE-EXAMINATION BY MS MAKHUBELE
CHAIRPERSON: Ms Moloisane, any questions arising?
MS MOLOISANE: None, Mr Chairman, thank you.
NO QUESTIONS BY MS MOLOISANE
CHAIRPERSON: Ms Coleridge?
MS COLERIDGE: No questions, thank you.
NO QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Thank you Mr Tinyane, that concludes your testimony, you may stand down now.
WITNESS EXCUSED
CHAIRPERSON: Ms Makhubele are you calling any further witnesses?
MS MAKHUBELE: No witnesses. That will be the applicant's case.
CHAIRPERSON: Ms Moloisane, do you intend to call any witnesses?
MS MOLOISANE: That is correct, Mr Chairman.
CHAIRPERSON: I see that it's now quarter past one, so this would be a convenient time to take the lunch adjournment. We'll take a short lunch adjournment and try to start as soon after quarter to two, or at quarter to two or so soon thereafter as is possible. We'll take a lunch adjournment now. Thank you.
MS COLERIDGE: All rise.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Ms Moloisane.
MS MOLOISANE: As it pleases this Committee, Mr Chairman. I now call Inspector Thebeyame Mysheld Mogwera.
THEBEYAME MYSHELD MOGWERA: (sworn states)
CHAIRPERSON: Ms Moloisane.
MS MOLOISANE: As it pleases this Committee, Mr Chairman.
EXAMINATION BY MS MOLOISANE: It is common cause that you are a police officer employed by the South African Police Services and at the moment you are stationed in Stilfontein, Khuma, is that correct?
MR MOGWERA: That is correct.
MS MOLOISANE: And it is also common cause that the applicant before this Committee is applying for amnesty in respect of the incident that took place on the 24th of April 1993 and on the 30th of May 1993.
MR MOGWERA: That is correct.
MS MOLOISANE: And it is also common cause that you were one of the victims that was affected by his actions on the 30th of May 1993.
MR MOGWERA: That is correct.
MS MOLOISANE: And Inspector Mogwera, earlier during my consultation with you, you indicated that the victim in the first count, I shall refer to it as the first count, that is the incident of the 24th of April 1993, that is Serg Setwadi, has passed away.
MR MOGWERA: That is correct.
MS MOLOISANE: So you are only in a position to testify to the incident, referring to the incident of the 30th of May 1993?
MR MOGWERA: That is correct.
MS MOLOISANE: Now the applicant here has disclosed the circumstances under which the crimes or rather the incident of the 30th of May 1993 was committed. I just want to know from you whether you have any objection in as far as his application for amnesty is concerned?
MR MOGWERA: Well, I do not have any objection.
MS MOLOISANE: And your colleagues, that is Insp Samuel Khumalo and Johannes Ratswene?
MR MOGWERA: They also do not have any objection.
MS MOLOISANE: But when these incidents took place on the 30th of May 1993, were you acting in your personal capacity or were you acting in furtherance of the - were you on duty rather as a police officer?
MR MOGWERA: Yes, we were all on duty.
MS MOLOISANE: So you do not know what the Department of Safety and Security's stand is, regarding the application by the applicant for amnesty, is that not so?
MR MOGWERA: I know.
MS MOLOISANE: Will you tell this Committee what is it that you know concerning this?
MR MOGWERA: Firstly I will say I do not have a problem with him or to forgive him, but I only have one problem because what he did to me is that I was on duty, I was clad in my uniform and then we had a complaint and we were rushing to that place, so what he did to us was something that was against the law because they took the police or the State weapon, that is why I say personally I do not have a problem forgiving him, but the only problem is that everything that we had on that day was in my hands, I was in control. That is the reason I say, personally I don't have a problem, but now because I was responsible for everything that they took from us, then I have a problem in forgiving him, because he took what was under my control.
MS MOLOISANE: That is the evidence, Mr Chair.
NO FURTHER QUESTIONS BY MS MOLOISANE
CHAIRPERSON: Ms Makhubele, do you have any questions that you would like to put to Mr Mogwera?
MS MAKHUBELE: Thank you Mr Chairman.
CROSS-EXAMINATION BY MS MAKHUBELE: You were in the company of Khumalo and Khumalo is the person who had this pump gun in his possession?
MR MOGWERA: That is correct.
CHAIRPERSON: Sorry, Ms Makhubele, before you proceed if we can just perhaps clear up this one point that I don't think any of us knew about. That pump gun, is it a Z88 or what sort of gun was it?
MR MOGWERA: Pump gun is not a Z88, it's a shotgun.
CHAIRPERSON: Thank you. Sorry, what is a Z88? If you could just briefly describe it?
MR MOGWERA: It's another kind of a weapon like a 9mm, that is the only name that is used to differentiate between the different types of guns.
CHAIRPERSON: So it's a pistol, a Z88 is a pistol?
MR MOGWERA: That is correct.
CHAIRPERSON: Thank you. Ms Makhubele.
MS MAKHUBELE: Thank you Mr Chairman. According to the Court record, you didn't actually see how this gun or pump gun was taken from Khumalo. Is this a true reflection of your memories, even up to now?
MR MOGWERA: ; That is true because I was outside looking after the van and Constable Khumalo was inside, but I could see it was dark so what happened, happened in the Tavern, at the gate of the Tavern, but I cannot explain what happened exactly there.
CHAIRPERSON: Sorry. Are you saying that the pump gun was not taken out of the van, or taken from the van by the thieves?
MR MOGWERA: No, it was not taken from the van.
MS MAKHUBELE: The applicant mentioned two names, one Katha and one Vice, which one is yours?
MR MOGWERA: I am Katha.
MS MAKHUBELE: Did you remain in the vehicle when Khumalo was in the Tavern?
MR MOGWERA: Yes, that is correct.
MS MAKHUBELE: The applicant has testified to the effect that this pump gun was in the vehicle where one officer had remained, which would be yourself and that after a group had had a confrontation with Khumalo in the Tavern, he ran away and they came to the vehicle. You also ran away and this gun was just left in the vehicle.
MR MOGWERA: That is not true.
MS MAKHUBELE: What kind of damage was done to this vehicle?
MR MOGWERA: All the windows were broken and the radio was damaged and the doors were also damaged. They were using stones to hit the vehicle.
MS MAKHUBELE: Was the vehicle shot at?
MR MOGWERA: No.
MS MAKHUBELE: So if it was put to the applicant in this hearing that he or any other person shot at this vehicle, that would not be the true state of affairs.
MR MOGWERA: No that is not true.
MS MAKHUBELE: Did you know the applicant before?
MR MOGWERA: Yes, I know him well.
MS MAKHUBELE: Do you know if he belonged to any political organisation then operating in the township Khuma?
MR MOGWERA: Well I don't know knowledge of that.
MS MAKHUBELE: Did you know the political activists in that township?
MR MOGWERA: Well, I cannot say that I knew the political activists. Well, I do not want to commit myself.
MS MAKHUBELE: Do you know James who is now ...
MR MOGWERA: Yes, I know him.
MS MAKHUBELE: He's the mayor of Khuma township, was, maybe last year.
MR MOGWERA: That's correct, he was a mayor at Khuma, but not at that time.
MS MAKHUBELE: At that time, do you know what his political affiliations were?
MR MOGWERA: Well, I cannot explain fully his participation in politics, but he was always present when people were toyi-toying.
MS MAKHUBELE: And Jimmy?
CHAIRPERSON: Lekaba, or Sekaba.
MS MAKHUBELE: Thank you Mr Chairman.
MR MOGWERA: Well, I don't know because there are many people known by Jimmy there. If he was the person who was always in company of them, then I would say I do remember him.
MS MAKHUBELE: Apparently he was involved in civic organisations, civic politics then.
MR MOGWERA: Well, I do not bear any knowledge of that because I didn't know their respective positions.
MS MAKHUBELE: These people who you say were always, to use your words toyi-toying, do you know which political organisations they were aligned to?
MR MOGWERA: Well, I don't know which political organisation were they supporting.
MS MAKHUBELE: Was there any unrest at the time at Khuma?
MR MOGWERA: I would say yes because many things happened there. Students were toyi-toying and the community were also toyi-toying, they were fighting for water and many other things.
MS MAKHUBELE: What was the role of the police?
MR MOGWERA: I do not understand your question.
MS MAKHUBELE: Were you as police ever called to control such demonstrations?
MR MOGWERA: Yes, many times.
MS MAKHUBELE: And how would you describe your relationship as police officers with the community at the time, during the demonstrations?
MR MOGWERA: In 1993 we didn't have problems with the community. The situation then didn't warrant what happened, that is the attack on policemen, or the damage to police vans.
MS MAKHUBELE: Are you saying during 1993, there were no such demonstrations, or what do you mean by warranting?
MR MOGWERA: On that day we were on our way after receiving a complaint that a van has been attacked and a weapon has been taken, so we were attending to that complaint.
MS MAKHUBELE: I'm not referring to that day, I mean generally. The evidence of the applicant is that due to political tensions between the community, the police and the IFP in the neighbouring village, they saw it fit to arm themselves and you just happened to be at the place where you made it possible for them to accomplish what they wanted to do, it could have been any other person with a pistol, or any other police officer with a pistol. What would you say to his statement to this effect?
MR MOGWERA: According to my knowledge then, I didn't expect that to happen and the situation at that time didn't warrant that to happen, because if we had known about the danger we wouldn't have gone there alone, without any back-up.
MS MAKHUBELE: Would you give any other motive that group had to disarm you, or to take the weapon from the vehicle?
MR MOGWERA: Well, I cannot comment on that. I cannot say why they did that.
MS MAKHUBELE: Have you ever quarrelled with the applicant, prior to the incident in question?
MR MOGWERA: No.
MS MAKHUBELE: Do you know of any quarrel with your colleagues?
MR MOGWERA: No, I don't know.
MS MAKHUBELE: When this pump gun, do you know in whose possession it was recovered?
MR MOGWERA: Yes, I think I remember.
MS MAKHUBELE: Where?
MR MOGWERA: It was taken from the members of the civic, but I cannot specifically say who.
MS MAKHUBELE: Were you part of the police officers that recovered it?
MR MOGWERA: No, I was not present when they recovered the pump gun.
MS MAKHUBELE: Did you get any explanation as to how it worked to the civic people?
MR MOGWERA: Well, I don't know.
MS MAKHUBELE: And we've already had evidence by the applicant himself that the pistol belonging to Serg Setwadi, the one who has since passed away, was recovered in his possession. Were you there?
MR MOGWERA: Yes I was present on that day.
MS MAKHUBELE: Do you know if that weapon was circulated and what the results are, between the time that it was seized from Sgt Setwadi and the day that it was recovered from applicant's possession?
MR MOGWERA: Well, I don't know.
MS MAKHUBELE: But is that not police procedure?
MR MOGWERA: May you please repeat, Ma'am.
MS MAKHUBELE: Was this weapon involved in any crime between the 24th of April and the day it was recovered?
MR MOGWERA: Well, I don't bear any knowledge of that.
MS MAKHUBELE: I have nothing further, Mr Chairman.
NO FURTHER QUESTIONS BY MS MAKHUBELE
CHAIRPERSON: Thank you Ms Makhubele. Ms Coleridge, do you have any questions you'd like to put to the witness?
MS COLERIDGE: Yes, thank you Chairperson.
CROSS-EXAMINATION BY MS COLERIDGE: You said that you knew the applicant. How long do you know the applicant for, previous to the incident?
MR MOGWERA: I have known him since he was still a child. MS COLERIDGE: So would you say you knew him just because - how did you know him since he was a child? Just explain your relationship to us.
MR MOGWERA: I knew him through a certain gentleman in the township. He used to help that man washing his taxis and he also became a driver, taxi driver, until he ended up being arrested in this particular case.
MS COLERIDGE: Would you say that you were friends?
MR MOGWERA: No, we just knew each other.
MS COLERIDGE: Did you ever see the applicant with any of the other activists in the township at any stage?
MR MOGWERA: I have explained before that I didn't know the politicians themselves, but we could see him with other people always when they were toyi-toying in the township. He was always present with other people.
MS COLERIDGE: On the 30th of May, was he also with a group of people?
MR MOGWERA: That is the day when they took the pump gun, are you referring to that day?
MS COLERIDGE: Correct. 30th of May.
MR MOGWERA: That is correct, he was with a group of people.
MS COLERIDGE: Can you tell us how big the group was?
MR MOGWERA: They could be between 20 to 30.
MS COLERIDGE: And was it only the applicant and the person that was with him, was it only the two of them that attacked you, or was it more a group action? Were you threatened by the group as well, or just the applicant and the other person?
MR MOGWERA: It was not the two of them alone, even other members of that group.
MS COLERIDGE: And what did the other members do?
MR MOGWERA: Const Khumalo came to me and informed me that they have disarmed him and that is when they came to attack us, then we moved backward from the vehicle and they stormed us. We thought of shooting at them, but we did not and that's when they started attacking the vehicle with stones and that is when Const Khumalo went to the charge office for back-up. I remained there until we were given back-up from the charge office and that's when we rescued the van from them and at the police station we wrote the statement about what happened there.
MS COLERIDGE: At that time were there any clashes between the IFP and the ANC in the Khuma location?
MR MOGWERA: Well, I cannot say whether there was any conflict between those organisations, but as far as I'm concerned, I would say the situation was very normal in the township at that time.
MS COLERIDGE: Would you say, in your opinion, ...(intervention)
CHAIRPERSON: Sorry, Ms Coleridge, just before you proceed, if I may just interject. Do you know a place called Tigane?
MR MOGWERA: Yes, I do.
CHAIRPERSON: How far is that from Khuma?
MR MOGWERA: It can be between 55 to 60 kilometres, because the place is between Stilfontein and Klerksdorp.
CHAIRPERSON: And do you know whether there were problems there, or don't you know? When I say problems, I mean political conflict between members and supporters of ANC on one hand and members and supporters of IFP on the other.
MR MOGWERA: Yes, I know there were problems at that place between ANC and IFP, but I don't know whether it was during that year.
CHAIRPERSON: Ms Coleridge.
MR MOGWERA: Thank you, Chairperson.
CHAIRPERSON: Would you say in your opinion at that particular time, 1993, that you were targeted as policemen and your weapons were taken - let me just take you back, let me rephrase that Chairperson. Was any other policeman, prior to the incident with Setwadi and yourselves, were any other policemen attacked in that area during 1993?
MR MOGWERA: That is correct. Police were attacked and their houses were burned and some of them were assaulted, that is before this incident.
INTERPRETER: The speaker's mike.
JUDGE DE JAGER: That happened in Khuma?
MR MOGWERA: Yes, that is correct, at Khuma.
MS COLERIDGE: I want to read you a section of the judgment on page 23 where the Judge states and I want you to tell me if you agree with it
" ... that these crimes were committed before the general democratic election of South Africa and that at the time of the crimes, there was quite some friction, particularly around the police presence in townships."
MR MOGWERA: I did not understand because my headset was cut somewhere, can you please repeat?
MS COLERIDGE: I will repeat that in English. The Judge stated that, bear it in mind that there was friction, that it was the democratic elections approaching at that time and that there was friction between the police basically and community in a sense, because there was so much police presence maybe in Khuma as well, is that correct, do you agree with that?
MR MOGWERA: Yes, I do agree with that.
MS COLERIDGE: In your opinion, would you say that your police weapon was taken by yourselves, by the applicant, because of this police presence and policemen were targeted at that time?
MR MOGWERA: Well, I do not agree with you there.
MS COLERIDGE: Can you explain why?
MR MOGWERA: It is because the disarming of the police is not the main thing that caused violence. If maybe there was an incident that happened at Khuma which was done by the police, then I would agree with you.
JUDGE DE JAGER: I understand your answer but why do you think did they take the weapons?
MR MOGWERA: Well, I cannot explain why they did that, I can just say it was just a naughty work by them.
JUDGE DE JAGER: Yes, but you didn't - they weren't a criminal gang as far as I could gather. The only evidence we've got is that they were sort of associated with people toyi-toying and that was people involved in politics, isn't that so?
MR MOGWERA: I will not say they were not criminals. To say that I saw him when they were toyi-toying, I was trying to explain the situation at that time.
CHAIRPERSON: And I see from the statement, you made a short statement which is contained in our documents, that the incident took place at Lily's Tavern at about ten past eleven at night, is that right?
MR MOGWERA: That is correct.
CHAIRPERSON: Were all the people in their sound and sober senses? What would you say to the sobriety of your attackers?
MR MOGWERA: I will not say that they were not drunk, but what I can say is that this happened at the Tavern and most of the people who were there, were people who were drinking.
CHAIRPERSON: Ms Coleridge.
MS COLERIDGE: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Do you have any re-examination, Ms Makhubele? Sorry Ms Moloisane?
MS MOLOISANE: No re-examination Mr Chairman.
NO RE-EXAMINATION BY MS MOLOISANE
CHAIRPERSON: Thank you. Mr Sibanyoni, do you have any questions you'd like to put to the witness?
MR SIBANYONI: Yes, thank you Mr Chairperson. Mr Mogwera, you said you received a complaint. There was a van which you were going to rescue. Who's van was it?
MR MOGWERA: I wasn't saying that the van was being attacked, I said we received a complaint at the charge office and we were told that there's a problem at Lily's Tavern and we were on our way to attend to that complaint.
MR SIBANYONI: What was the nature of the problem, or complaint?
MR MOGWERA: The complaint that we received was that there was a woman at the Tavern, who was misbehaving and undressing herself and we went there to look what was happening there and then before we could enter the Tavern, we came across what happened there.
MR SIBANYONI: You said these people who attacked you, were in a group of about twenty, would you say they were members of an organisation or were just ordinary customers at Lily's Tavern?
MR MOGWERA: I have said that I'm unable to say who was involved in politics and who was not, but I can agree with you that those were just the patrons at the Tavern.
MR SIBANYONI: The applicant says there was an incident wherein a member of their organisation was assaulted by the police, are you aware of such incident?
MR MOGWERA: Well, I know nothing about that.
MR SIBANYONI: Because of the conflict between the police and the applicant, or members of his organisation, the applicant says he disarmed you people of this firearm in order to protect themselves. Would you align yourself with what he is saying?
MR MOGWERA: I do not agree with what he said.
MR SIBANYONI: Why not?
MR MOGWERA: If he wanted to protect himself, he would have gone to buy himself a gun. He shouldn't have taken a gun from a policeman who was clad in full uniform, then I do not agree with him when he says he wanted to use that gun to protect himself.
MR SIBANYONI: When they were, that is the applicants now, when they were busy toyi-toying, would you say they were busy in a political struggle, as what you would usually say they were carrying on a struggle in that area? Did you understand the applicant to be actively involved in politics?
MR MOGWERA: Like I have explained, that there were different types of toyi-toying at that time, sometimes it would be students against their teachers, sometimes it would be the community thing, involving water in the township, so I'm unable to differentiate which toyi-toying was associated with politics, but I do agree that there was toyi-toying in that township at that time.
MR SIBANYONI: You also said the police were attacked and the houses were burned, were they attacked by members of the youth in that area?
MR MOGWERA: Yes, mostly the youth.
MR SIBANYONI: Thank you, Mr Chairperson.
CHAIRPERSON: Thank you Mr Sibanyoni. Judge de Jager, any questions.
JUDGE DE JAGER: You told us that if you knew there was friction between the community and the police, you wouldn't have gone there. Did you feel safe that night going to this tavern?
MR MOGWERA: When you are on duty as a policeman, when the situation is not normal where you work, you would know that at that time, I don't think that there was anything that will really not allow us to go to that place, or something that will hinder us in our job.
JUDGE DE JAGER: On arriving at this tavern, did you hear people shouting any political slogans, or what was the attitude of the people? Were they toyi-toying at that time, dancing there, or what were they busy doing?
MR MOGWERA: I will explain this at length so that you understand. At that time I was on patrol together with Const Khumalo and when you are on patrol, you're always on the look-out of what is happening in the township, so the reason why we went there, only the two of us, it was because people were just enjoying themselves there, drinking.
CHAIRPERSON: But what Judge de Jager wants to know is when the trouble started, let's say, stoning and Khumalo had been disarmed, did you hear people shouting political slogans and did you see dancing? Was there any indication that it might have - the trouble that occurred there might have been of a political nature?
MR MOGWERA: They were not shouting slogans and they were not singing and there was nothing to show that what they did was associated with politics.
JUDGE DE JAGER: You say that a shotgun was retrieved from a member of the Civic Association, the Civics, was that a leader of the Civics?
MR MOGWERA: Like I have explained, when this shotgun was recovered, I wasn't present, so I am unable to answer that question.
JUDGE DE JAGER: ...(indistinct - no microphone)
MR MOGWERA: That is the information that we received.
JUDGE DE JAGER : So did you, on that information, did you think that this stealing of the weapon was somehow connected with the activities of the Civics?
MR MOGWERA: Well, I don't know.
JUDGE DE JAGER: Well, why would the weapon be in their possession if they hadn't a hand in it, or it was associated with their objectives?
MR MOGWERA: Well, I don't know.
CHAIRPERSON: Inspector, we've got a contradiction between what you say and what the applicant says, which has already been dealt with, that is, the applicant says that the pump action gun was taken out of the van. The group came towards the van, the policeman in the van got out the van and ran away abandoning the shotgun in the van. They went and then took it out the van and you, on the other hand, say that that is not so, Sgt Khumalo went towards the Tavern, you stayed at the van and he had the shotgun in his possession and then he came back and reported that he had been disarmed. Are you - can you remember that quite clearly that what you say is the correct version, or might he be mistaken?
MR MOGWERA: No, that is the truth.
CHAIRPERSON: And Sgt Khumalo, although you didn't actually see the disarming, do you know whether he was assaulted or pushed around or manhandled at all when he was disarmed?
MR MOGWERA: What I could see from where I was standing, that is when they were talking to Constable Khumalo.
CHAIRPERSON: Yes, thank you.
JUDGE DE JAGER: On that, but didn't you see that he had a swollen eye after this event?
MR MOGWERA: No, he was not assaulted on that day.
JUDGE DE JAGER: So he wasn't assaulted.
MR MOGWERA: No.
CHAIRPERSON: No, that's the other one, the 24th.
JUDGE DE JAGER: Oh that was on the 24th, sorry.
CHAIRPERSON: Yes, any questions arising Ms Moloisane?
MS MOLOISANE: No questions, Chairperson.
NO RE-EXAMINATION BY MS MOLOISANE
CHAIRPERSON: Ms Makhubele?
MS MAKHUBELE: No questions.
NO QUESTIONS BY MS MOLOISANE
CHAIRPERSON: Ms Coleridge?
MS COLERIDGE: No questions.
NO QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Yes, thank you Inspector, that concludes your testimony. You may stand down now.
WITNESS EXCUSED
CHAIRPERSON: Ms Moloisane, are you calling any further witnesses?
MS MOLOISANE: I'm not calling any further witnesses Mr Chairman and that concludes the case.
CHAIRPERSON: Thank you. Ms Coleridge any further evidence?
MS COLERIDGE: No further evidence.
CHAIRPERSON: Thank you. Yes, that then concludes the leading of evidence in this matter. All that is left over now is the making of submissions, receiving submission. Before we do that, this statement that was handed in this morning, it's been referred to and we have it in our possessions, we'll call it Exhibit A, just for record purposes and we'll refer to it as Exhibit A. That is the statement made by the applicant which is dated the 23rd of November 1999. Thank you. Ms Makhubele, do you have any submissions to make?
MS MAKHUBELE: Yes, thank you Mr Chairman.
MS MAKHUBELE IN ARGUMENT: My submission regarding the political objectives of these two incidents, Mr Chairman, is that we have heard the evidence, the impression the applicant may have left in the minds of the Committee is that he does not really know the structure, who was what, who was doing what, but the Committee must understand the kind of person we are dealing with here. His level of education, his understanding of political - his political awareness. One thing is clear from all his evidence as to, although we may not know whether the Civic organisation operating there was or is the ANC, but one thing is certain is that there was a Civic Organisation with which the applicant associated himself.
We have also had a confirmation from the evidence of Insp Mogwera. The applicant, relating to the incident of the pump gun, he testified to the effect that James and Jimmy, who were members of the Civic organisations, are the people who took the pump gun and we had a confirmation that the pump gun was ultimately found in the possession of Civic Members although we don't know who they are. So in my mind, this creates a link that the applicant was not only acting on his own, there was some organisation which he was associating himself with at the time. We have also had a confirmation from the evidence of Mr Mogwera that the police were viewed in a bad light, hence their houses were attacked, they were burned, some were assaulted, so in my opinion this creates that link and the applicant has stated that the guns were for self-defence. He told the Committee that there was no incident at that time, but that, because their political objective was to be ready for the war which maybe would be waged by the police or to help their neighbours, which we have already had the confirmation that indeed there was tension at the Ikageng - ...(intervention)
CHAIRPERSON: Tigane, I think.
MS MAKHUBELE: As the Chairman pleases.
CHAIRPERSON: Well, ... saying I'm correct, but just on that Ms Makhubele, the applicant said, there was a little bit of confusion here, he first of all said that he took the gun to participate in the war against the IFP and he was going to take this gun and he was going to find IFP supporters in the street and go and shoot them. Then under cross-examination he said: "No, I took this gun to protect us from attacks against the IFP because there was trouble in Tigane." Now when that evidence was given, I was under the impression that Tigane was over the fence, or across the road, now we hear that Tigane is 55 or 60 kilometres away. So he's taking - and they've got trouble there, but not in his area. When I say trouble, I mean IFP/ANC trouble, conflicts and that's clear from the Inspector's evidence, there wasn't any heavy IFP/ANC conflicts, slaughters taking place at Khuma. So now you take a gun to protect yourself against the IFP attacking you, because IFP are attacking people 60 kilometres away. It just doesn't seem too logical to me.
MS MAKHUBELE: I do appreciate that, Mr Chairman, but that would explain why this gun, if one understands the purpose of the amassing of weapons, was to use them if there is a need and which would explain why the weapon would like stay for six weeks without having been used.
CHAIRPERSON: That's the evidence of the applicant, you know he's not going to come and say: "Yes, I used it to stick up bottle stores and things like that", will he?
MS MAKHUBELE: He wouldn't.
CHAIRPERSON: Continue.
MS MAKHUBELE: Thank you, Mr Chairman. And the people that he says, in the statement which is Exhibit A, that they are the people who could vouch for his membership, are the people who are in the Civic Organisation, which we are talking about, which we don't know it's political alliance. For instance James, the mayor of Khuma township, that's on page 3 of the statement ...(intervention)
JUDGE DE JAGER: But on that score, why wasn't James contacted? He's a mayor of a township, he should be available, he could easily confirm what the applicant is saying. He's not a person that can't be traced, or can you perhaps give us a, well, explanation why didn't the applicant or yourself contact him and ask him whether this is true, was this person a member of the ANC?
MS MAKHUBELE: I'm just looking for something here, if the Committee can just bear with me, I will respond. Mr Chairman, I thought, because I would regard this James or Jimmy as the people who are implicated by the applicant and my belief was that the TRC had been in possession of this statement since last year.
JUDGE DE JAGER: Which statement, this Exhibit A?
MS MAKHUBELE: Yes, that's correct.
MS COLERIDGE: Chairperson, if I can just respond to that? In preparing the documentation in the applicant's case, this Exhibit A was never part of any documentation in the applicant's file, Chairperson.
CHAIRPERSON: He said that the statement was taken by his Counsel. I don't know if it was you or somebody else.
MS MAKHUBELE: Yes, but not today. This matter ...(intervention)
CHAIRPERSON: Yes, I know, but I mean if it was taken by his Counsel, it's dated 23rd of November, now if it was taken by his Counsel, I don't know where he was, probably in prison or where? I don't know. Why would the TRC have it?
MS MAKHUBELE: If I may explain. This matter is before the Committee for - this is the second time. It was before the Committee last year in November and this statement was handed in, where the matter was removed from the roll because apparently the Committee felt this was a Chamber matter. Those are the circumstances under which this was and as far as the applicant was concerned, the matter should have been dealt with in Chambers last year when the statement was handed in, that's why we didn't see it fit to call these people and when it was enroled again, we didn't know what the problem was, whether the problem was because the people were opposing who were implicated or not.
MS COLERIDGE: Chairperson, just as the Evidence Leader, the fact that Ms Makhubele had a copy, the statement only came to my knowledge last week Thursday or Friday, Chairperson and therefore - and I said to her that if she brings it to the hearing I would give it to the Committee, so that's how it came about, Chairperson.
CHAIRPERSON: So you didn't see it?
MS COLERIDGE: No, Chairperson.
CHAIRPERSON: So it may have been handed in previously ...
MS COLERIDGE: Exactly, Chairperson, whether it's been submitted.
CHAIRPERSON: Thank you. Yes, Ms Makhubele.
MS MAKHUBELE: Thank you Mr Chairperson. Coming to the question of the full disclosure, regarding the pump gun incident, I would say the only difference between the applicant and the victim is where this gun was taken. But the applicant has disclosed all material facts relating to this incident, Mr Chairman.
Unless there's anything specific that the Committee wants me to address.
JUDGE DE JAGER: On the evidence of the victim, it would seem as though there was a robbery, the weapon was taken from Khumalo, whether by force or not we don't know, but it was taken from him. On the evidence of the applicant, the weapon was abandoned and he sort of took it after the policeman fled.
MS MAKHUBELE: Thank you. I would submit that there's a lot of - there's mystery surrounding this incident, because the victim who gave evidence, didn't see the incident and it's not clear what actually happened, which is why, if we look at page 21 of the judgment, line number 14, where the Judge also remarked
"However, the circumstances do not justify for the Court the only reasonable inference in this regard, thus there is doubt with regard to charge number four."
Number four, it's related to the robbery of the pump gun and even on the evidence which has been submitted to this Commission, I don't think it takes the matter any further than the evidence which the Judge had at his disposal when this matter was heard in Court, so I would submit that we don't have any evidence on which to ...(intervention)
CHAIRPERSON: But I think what the Judge is saying here, Ms Makhubele, is that as far as Count Four is concerned, there is doubt that the person who pointed a gun at Sgt Khumalo and who took the shotgun from Sgt Khumalo, was working together with the accused, that is your client, the applicant and he said that on the evidence, he's not prepared to find that the person who dispossessed Sgt Khumalo, and it seems that Sgt Khumalo was dispossessed because somebody threatened him with another gun and took his weapon, that he wasn't prepared to find that the accused was a co-perpetrator or an accomplice of that person, just because the accused was one of the people around the Tavern, and that is why the accused, that is the applicant now, got acquitted. So that doubt doesn't relate to doubt what happened, but doubt as to the guilt of the accused person and then we know that the other person wasn't there at the trial.
MS MAKHUBELE: Yes, the accused, who is the applicant now, his evidence, which even now in this hearing would stand uncontested is that he took the - no I'm sorry I'm thinking about the other incident.
CHAIRPERSON: The pistol, yes.
MS MAKHUBELE: I'm thinking about the other incident.
CHAIRPERSON: You see, it's quite clear that the evidence before the Court, from what we get from the judgment, coincides with the Inspector's evidence given here, namely that Khumalo was dispossessed of the firearm, that he had it in his possession and was dispossessed because somebody threatened him, not that it was left abandoned in a vehicle from which the police fled, so it would seem that if we had to make a finding as to the pump gun, how it was taken, we would have to find that this judgment, the evidence led at the Court was wrong, the evidence led by Insp Mogwera is wrong, and that the only persons telling the correct version is the applicant and he didn't even take the gun so it would be difficult for us to find that, would you agree?
MS MAKHUBELE: Yes, but then I do agree, but on the same breath that the Committee asked me why the evidence of a person who is available was not led, I believe as Khumalo would have shed some light on this, because I don't know ...(intervention)
CHAIRPERSON: Are you saying we should reject the Inspector's evidence because Khumalo wasn't called?
MS MAKHUBELE: Yes, I think so.
CHAIRPERSON: And accept the applicant?
MS MAKHUBELE: Yes.
CHAIRPERSON: Yes. Ms ...
MS MAKHUBELE: The applicant as it was suggested to him during cross-examination that he took that gun, or the guns, for his own criminal activities that he intended carrying out but we have heard that then one would say that the Civic, it would mean that the Civic was also part of that criminal conspiracy which evidence we don't have before this Committee and as such my submission is that when - one should look at the climate at that time. The climate at the time, the political situation was that he wanted to defend himself. Maybe the situation would never have arisen where he would have used those firearms, hence the incidents should not be looked at in isolation, but in the context in which it occurred, hence we find one pump gun in the hands of the Civic Organisation.
As it pleases the Committee. I have nothing further.
CHAIRPERSON: Thank you Ms Makhubele. Ms Moloisane, do you have any submissions you'd like to make?
MS MOLOISANE IN ARGUMENT: As it pleases this Committee, Mr Chairman.
Mr Chairman, firstly I would like to put it on record that although the victims in this case do not have any, or rather have indicated that they are not opposing this application for amnesty by the applicant, Insp Mogwera has however indicated in express terms that in his personal capacity he is not opposing this application but because he was, on the 30th of May 1993, acting in furtherance of his duties, official duties and acting within the course and scope of his employment, he is not in a position to forgive the applicant in this case and it is therefore my submission that this matter should be opposed on behalf of the victims, as they were acting in their official capacity on that particular day.
Firstly, Mr Chairman and Committee Members, I submit that the applicant has not satisfied the requirements of Section 20 of the Promotion of National Unity and Reconciliation Act number 34 of 1995. Section 21 (a) stipulates that the applicant - in considering an application for amnesty, the Committee must be satisfied that the application complies with the requirements of this Act and (b) that the acts, omission or offence to which the application relates, is an act associated with a political objective in the cause of the conflicts of the past, in accordance with the provisions of (ii) and (iii). At this stage I shall not rather and the applicant has made a full disclosure of all relevant facts.
Mr Chairman, firstly, my submission is that there is no full disclosure as far as this application is concerned. Firstly the applicant on page 2 of the bundle that is before the Committee states in paragraph 10(a) and (b) the reason for having committed these offences and these reasons clearly differ with the reasons given in a statement made by him that was submitted to this Committee and marked Exhibit A, or referred to as Exhibit A. In paragraph 10(a) he says they wanted to:
"Disarm the enemy and arm the people. Reasons: They supported only one political party, (that is the IFP). The life of our community was in danger because of the last kick of a dying horse."
And in paragraph (b) referring to the question of justification of such acts, he says:
"The tri-cameral prosecution didn't protect and guarantee fundamental rights for blacks. Police violated our natural rights by detaining us without good reason, with no correct legal procedure."
In his statement, that is Exhibit A, under the heading Political Motive, he says:
"Our organisation was fighting with the police and other political rivals like the Pan Africanist Congress and Inkatha Freedom Party."
(3)(ii):
"A decision had been taken that we should obtain as many firearms as we can to defend ourselves."
(3)(iii):
"On the day in question, we saw an opportunity to obtain firearms from the two police officers who came to the shebeen carrying firearms."
(3)(iv):
"The method of acquiring firearms included robbing those who had them, like these police officers."
Mr Chairman and Committee Members, I submit that the reasons referred to in page two of this application, do not reflect what actually the applicant says was the motive for disarming the police. The applicant, upon cross-examination by myself, said he was disarming, or rather that they were disarming the police in order to murder Inkatha or IFP members. When you look at Section 20, murdering of people simply because they belonged to rival or political parties, isn't mentioned anywhere in Section 20, therefore my submission is that ...
JUDGE DE JAGER: 20 (ii), if a member of an organisation directs an attack at a political opponent or a supporter or a member of a party, that would qualify him to be an applicant. Wouldn't that indicate that you've got to direct it at an opponent and he said, well the police and the IFP were both considered to be opponents.
MS MOLOISANE: That's the way I understand it as well, but Learned Committee Member, but clearly to murder, I mean disarming in order to murder a member of a rival political party, does not amount to ...(intervention)
CHAIRPERSON: Yes, I think from our experience, and we've had considerable experience involving the conflicts, particularly between supporters of ANC against supporters of IFP, not only in Gauteng and the East Rand, but also in KwaZulu Natal. It's quite clear that there were a lot of people who were killed, purely because of that conflict, but usually attacks were in revenge for something that had preceded it, you know it wasn't usual just for a gratuitous killing for no reason at all, just because a member belonged to, it was normally something which drove the attacker to kill people from the other side, be it one way, ANC against IFP, or IFP against ANC, there was usually some catalyst locally, some local event that led to attacks.
MS MOLOISANE: As it pleases this Committee, Mr Chairman. I'm not taking this point any further.
CHAIRPERSON: But you did get - the other attacks, while I'm mentioning it, that you would get the so-called dominance attacks where one party would attack members of the other party just to prove the strength of their party.
JUDGE DE JAGER: Another factor that we should keep in mind here, we're not dealing with an attack, we're dealing with an offence in preparation sort-of, of what might be coming.
MS MOLOISANE: Thank you Learned Committee Member. Still on that, on the preparation for an attack that was apparently to be carried out with a political objective or motive, I submit that the applicant did not satisfy this Committee in my opinion, that is my submission, about the real reasons for I mean this policemen. This emerged upon questioning Learned Committee Member Judge de Jager when he said he did not tell the ANC about the 9mm pistol because he wanted to keep it for himself and he further said it was only Marupi who decided to tell the ANC about it and on this, Mr Chairman and Committee Members, I submit that the disarming of the policemen on the 24th of April and on the 30th of May 1993, was clearly done with a criminal motive and not with the intention of using these firearms in furtherance of political objectives.
Unless there is still something more that the Committee would like to hear from me, I have no further submissions.
CHAIRPERSON: Yes, thank you, Ms Moloisane. Ms Coleridge do you have any submissions you'd like to make?
MS COLERIDGE IN ARGUMENT: Chairperson, just a few submissions.
In relation to the applicant, that he did belong to the ANC it seems and the fact that we have to take into consideration that Mr Mogwera says that he'd seen the applicant around and he knew him for a long time. He couldn't give us any information in relation to his criminal activities, in a sense, but he observed the applicant with a group of people toyi-toying and so forth. We have to keep that in mind Chairperson, that it seems that at some stage the applicant associated himself and was seen with groups of people that we could take for granted were involved in political activities, if they are toyi-toying and singing slogans and so forth, Chairperson.
Also the fact that the pump gun was found by someone in the Civic Organisation, Chairperson, does back the applicant up in a sense that they were involved with the Civic Organisations as well, and we know that Civic Organisations assisted political parties, they were also active in communities, Chairperson.
The only question in relation to the applicant and whether it was thought that he was going to be attacked by the IFP, or whether he was going to go out and shoot the IFP, it was just unclear as to what his objective was, but was to defend himself.
CHAIRPERSON: I think if you get unsatisfactory evidence of that nature, then why should one necessarily conclude that it was to defend himself.
MS COLERIDGE: Correct, Chairperson.
CHAIRPERSON: You know it might be, many, many guns are stolen and usually guns that are stolen, aren't stolen to defend oneself but to use it, we know too well, for criminal activities.
MS COLERIDGE: Yes, Chairperson, the fact that applicant mentions that he would use that firearm to go out and kill IFP people in examination-in-chief, and the goes in re-examination states that it was to defend himself and there was no real - the IFP, there was no conflict really between the two of them, is obviously in contradiction.
CHAIRPERSON: And one would also expect, I'm Jimmy, I give you an order to go and disarm police. Now you happen to succeed in doing that. One would have thought that the reaction would be to go back to Jimmy and say: "Look, I've carried out your instruction, here's the weapon." Instead he keeps it quiet because he wants to keep it for himself. It just happens that one of his colleagues mentions it, we don't know in what circumstances. You see that's also ...
MS COLERIDGE: It is also unclear, Chairperson, that evidence and also the fact that the instance happened at the very same tavern.
CHAIRPERSON: The same tavern, den of iniquity.
MS COLERIDGE: Exactly. Also it's not as if they went out looking for policemen and then it just seems to have occurred at the tavern which, it's unclear as to the objectives behind obtaining that weapon and the context of it all.
JUDGE DE JAGER: Another aspect that's bothering me is, if I wanted to think myself, because I think I could be attacked, I would carry this weapon with me, I wouldn't hide it in my shack behind the corrugated iron there and go around without it because he, on his own evidence, said he didn't carry the weapon with him, always carry the weapon with him.
MS COLERIDGE: That is true. There's one other issue as well in relation to him being arrested for another incident. I mean, during the course of this whole - the two incidents, the applicant was in possession of and then later, even on bail, went and committed a criminal act, you could say. We don't know the facts behind that but it doesn't appear to be politically motivated.
CHAIRPERSON: I don't think - it doesn't seem to be - there's no suggestion that it was.
MS COLERIDGE: Correct Chairperson, so in the applicant's case there are factors that appear to be political, but also a real factor that we have to take into account that the applicant's actions throughout these acts, was not that of a political nature in a sense that he'd report back to Jimmy and James and so forth, Chairperson and those are my submissions.
CHAIRPERSON: Thank you. Do you have any reply Ms Makhubele?
MS MAKHUBELE: Thank you Mr Chairperson.
MS MAKHUBELE IN REPLY: If I may respond to this reporting back, as I recall and if one reads the statement which would be Exhibit A on page 3, the applicant did explain that the acquiring of arms was for them to use and Jimmy or someone knew, that's why at some stage they would like exchange and which is why, when we look at page, unfortunately this statement is not dated, some pages are not dated, but if one counts per page, it would be page number 3, where he was relating the incident of the pump gun, that his evidence here was that after they took it, they ran away to hide in Potchefstroom, which would explain why there was no immediate reporting or explaining, but then if one looks at the fact that this incident occurred on the 30th of May and he was arrested on the 2nd of June and in between this firearm was handed to the two officers, to the two Civic ...(intervention)
JUDGE DE JAGER: And they came to visit him at Potchefstroom.
MS MAKHUBELE: Yes, that's when he gave them that.
CHAIRPERSON: But it was Charles, not him.
MS MAKHUBELE: No, it's him.
CHAIRPERSON: Didn't he say Charles took the ...
MS MAKHUBELE: The paragraph that starts 2(10)
"The following day, the man who gave us a lift, came with James, now Mayor of our township and Jimmy, the Chairman of the Civic Association. They requested us to give them the firearms we stole from the police for safekeeping. We gave them a report that we only took a pump gun. They then left with the said pump gun."
CHAIRPERSON: We're talking - but he said it was Charles who took the gun actually, Charles had the gun. He happened to be with Charles.
MS MAKHUBELE: Yes he was with Charles, but he was aware of what Charles was - that's why both of them went into hiding. I have nothing further.
CHAIRPERSON: Yes, thank you. That then concludes this hearing. We'll reserve our decision which will be handed down in written form as soon as possible.
I would like to thank the legal representatives for their assistance in this matter and that then concludes the matter.
Ms Coleridge, do we have anything further on the roll for today, or do we proceed tomorrow.
MS COLERIDGE: That concludes the roll for today, Chairperson.
CHAIRPERSON: For today. Yes, thank you. We don't have any other matters that are ready to proceed today and in any event we're near the end of the usual time of sitting and we'll accordingly adjourn now until tomorrow morning when we'll commence with another hearing, I'm not sure which one, but we will commence with one tomorrow morning. At what time, Ms Coleridge?
MS COLERIDGE: 9 o'clock tomorrow, Chairperson.
CHAIRPERSON: At 9 o'clock tomorrow we'll resume with our next hearing. Thank you.
COMMITTEE ADJOURNS
