CHAIRPERSON: Good morning everybody. We continue our hearings today and the first matter on the roll for today are the amnesty applications of Messrs S. Mufamadi, M. Mayekiso and Jay Naidoo.
Before we commence, I would just like to briefly introduce the Panel to you. On my right is Judge John Motata, he is an Acting Judge, attached to the Transvaal Provincial Division of the High Court and he is a member of the Amnesty Committee. On my left is Mr Ntsiki Sandi. He is an Advocate and he hails from East London, he is also a member of the Amnesty Committee, and I am Selwyn Miller, a Judge of the High Court, and I am attached to the Transkei Division of the High Court.
Before we start, this matter was set down on Monday, but we couldn't proceed for certain technical reasons and it was being postponed until today, and I would just like to apologise for any inconvenience that was caused by the postponement. I can assure you it was not intentional.
These proceedings will be simultaneously translated and if you wish to benefit from the translation, I don't know what language the applicants will be testifying in, but if you wish to benefit from the translation, you must be in possession of one of these devices, which are available from the Sound Engineer.
I would request the legal representatives to kindly place themselves on record.
MR RADITAPOLE: I am Tefo Raditapole from Cheadle Thompson & Haysom Attorneys, and I appear on behalf of the applicants.
CHAIRPERSON: Thank you Mr Raditapole.
MR MALOWA: I am Adv Malowa from Pretoria Bar, I am representing the victim.
CHAIRPERSON: Thank you Mr Malowa.
MR MAPOMA: My name is Zuko Mapoma, I am the leader of evidence for the Committee.
CHAIRPERSON: Thank you Mr Mapoma. Mr Raditapole?
MR RADITAPOLE: Thank you Mr Chair. Mr Chair, as indicated the applicants will read into the record a joint submission, to be read by Mr Naidoo, after which I will make a number of submissions. That will be in the Panel's hands.
CHAIRPERSON: Yes. Thank you, Mr Naidoo will then be sworn in, we will convert this into a sworn statement?
JAYESALEEN NAIDOO: (sworn states)
CHAIRPERSON: Thank you. Mr Raditapole? Are you going to be reading from this statement that was handed to us earlier? We will call it Exhibit A. We can mark it Exhibit A, is everybody in possession of one?
EXAMINATION BY MR RADITAPOLE: Mr Chair, if I may propose, we do refer to another document as Exhibit A, could we call this Exhibit A1?
CHAIRPERSON: Certainly, A1, if that is what you want.
JOINT STATEMENT OF APPLICANTS HANDED IN AS EXHIBIT A1
MR RADITAPOLE: Mr Naidoo, you have your statement in front of you, that has been handed to the Panel and to the other parties, could you take us through the statement which is a joint submission by all the applicants? Mr Chair, the statement will be confirmed by Mr Mufamadi and Mr Mayekiso.
CHAIRPERSON: Yes, I think what is probably the best way to go about it, would be after Mr Naidoo has given his evidence, we swear in Mr Mufamadi and Mr Mayekiso and make them confirm it, and if they wish to add anything or say anything, then they may do so as well.
MR RADITAPOLE: As the Panel pleases.
MR NAIDOO: Thank you Mr Chair.
Our submission today is to apply for amnesty and to record our very sincere regret that Mr Maleka was a victim and was caught very much in a cross-fire of a war that the Apartheid State at that point, had been waging with great intensity against the mass democratic movement in general, but in particular quite a campaign against Cosatu. That is the period in which this whole incident did take place, it was never intended by us then or now, or in the future, to ever see Mr Maleka as an enemy. He was in our view, and for all intends and purposes, very much a pawn that had been used by the Apartheid State in a very sinister campaign to create an atmosphere of fear, of terror in which action would be taken against Cosatu, whether that was legal or illegal action.
We do however, concede that technically our conduct constituted unlawful and unintentional deprivation of Mr Maleka's freedom of movement, however our preoccupation at that point, was very much to exploit and expose the duplicity of the Apartheid Government which was talking the language of negotiations on one hand, but on the other hand fomenting third force violence against the progressive democratic movement, in order to weaken it in the negotiation process. This TRC process in itself, is very much a record of what was done in that period, prior and during to the negotiations process.
Therefore our application should be seen in the context of State sponsored violence against activists at the time, we regret the assault that took place against Mr Maleka and any damage he may have suffered as a consequence of that. We want to state that Cosatu was and still is pre-eminently a Trade Union organisation that is dedicated to the protection and defence of its members' interest and that its lifeblood in fact is the negotiations it conducts at the shop floor, industry bargaining counsel level and at a macro level, instructions that existed in the past, namely the National Manpower Commission, National Economic Forum and more recently now Nedlac.
Its success then and now was very much dependent on very democratic shop floor structures, shop-stewards elected on a regular basis with having both mandates in the negotiations with employers, and reporting back to the members. In fact, in that whole period and currently, we have been engaged in thousands of negotiations at a shop floor. At the time of this incident, Cosatu had built up quite a sophisticated organisation in spite of the repression of 1,2 million paid up members and organise into very strong national industrial unions.
At any one point in time, we had tens of thousands of trained shop-stewards. I am pointing out this to you, Mr Chair and Panel, that we would not take action that would jeopardise the very painstaking work we had done in building up an organisation such as that. But it was because we fought for democracy on the shop floor and we found it not just undesirable but impossible to separate ourselves from the broader struggle for freedom in our country, and we have never apologised for the stance, in fact it remains one of the proud moments in Cosatu's history and the history of this country, that we were one of the most organised and significant civil society organisations, that not just challenged the denial of human rights in that period, but will continue to exercise that right even today.
So, it was because of that position that the Apartheid State attempted to demonise both the leadership and the organisation and create this whole atmosphere of terror in which the organisation itself would be weakened. As we stated at the time, this approach was intended to either instigate, organise and foment violence against our personnel, our offices, our property, either through formal or unofficial random acts by its supporters.
We have as a record, handed in, but also in our submission at the TRC hearing on the role of business, documented close to 50 attacks on Cosatu and its affiliates in that period leading up to that hearing. It is quite clear that the State and its unofficial organs saw us as a very significant threat and to counter the growth, the Apartheid State began in earnest to orchestrate a campaign of violence against us, personnel and members were attacked, members were murdered, others detained, premises and property were sabotaged and destroyed, offices were subjected to search and seizure raids, meetings were disrupted, material confiscated, roadblocks set up to intercept members and these systematic attacks on Cosatu and affiliate offices, took place in many cases resulting in destruction of offices through firebombs, through grenade attacks and through vandalism.
The South African Police also used Emergency Regulations to make unnecessary and destructive interventions in the industrial relations issues. Strikes by affiliates in the period post-1987 such as the SARO and NUM strikes in 1987, were particularly hard hit.
Thousands of workers were dismissed and forced out of hostels, Cosatu House was raided in a military operation twice by Police and the Military, even using sniper riflemen. The streets outside our offices were almost barricaded by police on a daily basis, and workers and personnel there were being harassed. An incident that remains very clear in my mind, as to the position of the police in all of this period, was looking down from the 11th floor of the Cosatu building, the Headquarters, and seeing the police vans parked downstairs and one of them having an AWB sign drawn on its bonnet.
So, it is difficult for us to look back upon that time and fully comprehend the nature of the onslaught that was launched against Cosatu, and to understand the nature of the attacks, we refer to the list of attacks that we handed in to the Court during our trial, which is today Exhibit A in the amnesty hearing. One of the most well known attacks was the bombing of Cosatu House in 1987 by Vlakplaas operatives and both Eugene de Kock and others have applied for amnesty in this regard.
It is a matter of record that the police, the Minister of Police, Adriaan Vlok, personally praised de Kock and other Vlakplaas operatives for a mission that had been well accomplished, and again I can recall on the morning that they had bombed Cosatu Headquarters and effectively destroyed it and made it unusable, I was confronted by Security Police there with a warrant to seize certain newsletters that we had published, and when I remarked that it was ironical, they were doing this just as they had bombed our building, they threatened to arrest me for that.
On June the 9th, 1989, Cosatu was declared a restricted organisation, effectively preventing it from carrying out a range of activities, changes were being proposed to labour laws that will severely curtail our right to organise and demonstrate our opposition to either employers of the State, heavy penalties were proposed to emasculate the Trade Union movement and its ability to strike, and in fact the State in its legal position and through its propaganda machinery, especially the distribution of tens of thousands of dirty trick pamphlets and the SABC, began to argue that Cosatu was a legitimate target because of our perceived treasonous behaviour.
This was confirmed in two Commissions that sat in 1990, the one was the Harms Commission in which the former CCB operative Dirk Coetzee indicated that both the SADF and the SAP regarded Cosatu as a target for political violence and this was further confirmed in evidence given to the Hiemstra Commission, concerning the SADF's infiltration of the Jo'burg City Council and its intervention in the industrial relations arena.
In the period of 1990 and following the unbanning of the ANC, a spiral of violence in fact flared throughout the Reef townships, Cosatu on numerous occasions warned the police of intended attacks on its offices and personnel, no action was taken until to this day, we are still to see a successful prosecution of violent acts that were committed against Cosatu.
It was quite clear to Cosatu that we would have to take measures to protect ourselves and our members against State sanctioned violence, a particular spectre of violence was the appearance of sinister death squads, often made up of askaris who were the ANC guerrillas that had been turned by the Apartheid Security Forces. At the same time, there was a very real possibility for a negotiated settlement and Cosatu in its 1989 Congress supported the negotiations process, but also backed a mass based campaign of defiance to force the Apartheid State to negotiate in a bona fide way with the ANC.
We in fact released a number of our senior leaders including Sydney Mufamadi, my co-accused, Cyril Ramaphosa to participate and support the negotiations process. Other Cosatu cadres such as Sydney and Jehendra Naidoo became key negotiators around the Peace Accord. So Cosatu as an organisation had a very obvious programme that our greatest strength was at the point where we were operating in an environment of peace.
As an organisation, we would never do something that would provoke or foment violence, because that will have the opposite effect in terms of the functionality and success of our organisation.
So, while we voiced militant opposition to apartheid, and lack of worker rights on the shop floor, we have always sought to act in a disciplined, rational, non-violent manner that promoted the practice of democracy. It is against this background that the incident in respect of which we apply for amnesty, should be understood.
We apprehended Mr Maleka after he was seen to be behaving suspiciously outside the Cosatu offices. There was a reasonable response in view of the above context that I have painted. On being questioned, he revealed a two-way radio and photographs of Geraldine Fraser. She was then a senior official of the South African Communist Party and had recently returned from exile. She had in the previous few weeks experienced a high level of surveillance and indeed was fearful that at attempt were maybe made to harm her.
Mr Maleka claimed that his job was to report to a Security Policeman who was driving in the vicinity every time she left the building. That he had no identification on him and denied that he was a policeman, made us suspicious of his intention and those of his handlers. We ensured that Mr Maleka was then kept at our offices while a number of processes were put into place. A press conference was called, the ANC was asked to request authorities at a national level to investigate the incident, the Security Police at John Vorster Square was informed and requested to fetch him, once it was confirmed that he had in fact said he was a policeman.
It is common cause that the response of the police was to raid Cosatu's offices and to arrest ourselves. We were then charged with assault and kidnapping. In fact, the strange thing about the arrest is that Geraldine Fraser was in the company of us when we were arrested, police did not even give her a second glance. The fact of taking the time off to go and get warrants of arrest, not responding to an urgent activation of a special channel set up by the ANC and the fact that they knew from the beginning that Mr Maleka had been taken into our building, pointed to a lack of concern about the safety of Mr Maleka. In fact in our mind, it was simply to bloody Cosatu's nose and to embarrass the leadership. We did not assault Mr Maleka, nor were we present at any stage when he was assaulted, other than the incident when he was slapped in front of the press camera.
We however, acknowledge that he was assaulted. We extremely accept with the conduct of some of our members, even if we felt they were emotional about the actions of the Apartheid State, and its functionaries, who were the interface of its violent side against us, we warned the relevant Cosatu personnel to ensure his absolute safety. I even recall at the time, that the police even stated that they knew that we as the leadership were not involved, but if we were prepared to reveal the names of those that were involved, then they would be prepared to withdraw the charges against us as leaders.
We felt at that time, that as the leadership, we had to take the political responsibility for what had happened, and therefore declined to take up that offer. We do not have any direct knowledge of who participated in the assault, but we do know however, that there were two people associated with Cosatu, one employed, Lazarus Mawhela and the other Christopher Seopeseng, who was a Chairperson of our Education Committee, who were amongst the people who were present in that office when that assault took place.
It must be appreciated that the incident had stirred much excitement and consternation and that people were moving in and out of the office. The fact that we as leaders did not assault Mr Maleka was consistent with Cosatu's role in the endeavours for peace. The fact that he was placed in Sydney Mufamadi's office, who was then the Assistant General Secretary of Cosatu, that a press conference was called, that the ANC requested to intervene and the police called, is consistent with this.
Mr Maleka's testimony at the trial about me being present when he was assaulted, was wrong. We wish to reiterate that we believe that Mr Maleka is a victim of that unjust political system that existed at that point, and sought to deny the majority of people their birth right.
The fact that he suffered harm in some way, even in the context where we felt the life of Cosatu leaders and property were in danger, does not alter that fact. It is in that context that we regret and omission or commission on our part, which led to a situation in which Mr Maleka found himself at that point in time.
I thank you very much, Mr Chairperson, and Panel, for your attention in this matter.
NO FURTHER QUESTIONS BY MR RADITAPOLE
CHAIRPERSON: Thank you Mr Naidoo. Mr Raditapole?
MR RADITAPOLE: Mr Chair, perhaps Mr Mufamadi and Mr Mayekiso can be sworn in and ...
CHAIRPERSON: Let me just ask Mr Malowa if he has any questions to put to Mr Naidoo. Mr Malowa, do you have any questions that you would like to put to the applicant?
MR MALOWA: I don't have any questions.
NO CROSS-EXAMINATION BY MR MALOWA
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: None, Chairperson.
NO CROSS-EXAMINATION BY MR MAPOMA
CHAIRPERSON: Judge Motata?
JUDGE MOTATA: Just clarification Chairperson. In your statement, in the submission, you have alluded to the fact that Cosatu operated or perceived to operate in a peaceful atmosphere. I want to get clarification, because there was this constant attack, that is the tenor of your submission from the, let's put it from the apartheid regime. Would I be correct to say the peaceful atmosphere you are speaking of, is the community of Cosatu, that is the 1,2 million people affiliated to Cosatu, not vis-à-vis the apartheid regime, would I be understanding you correctly?
MR NAIDOO: Yes, I think what we have sought to do in that whole period, particularly in the whole of the 1980's, is use every legal avenue to defend and advance the rights that we had and believed we had, as workers and as human beings.
It is in that context that in the debates that took place in the Trade Union movement at that time, that we argued for registration of unions, for the use of Industrial Councils and for recognition agreements that were negotiated at probably tens of thousands of work places.
So our entire relations with employers, all of that was regulated by agreements that we had reached, including using some of the laws that the Apartheid State had passed at that point in time. So for us, a very key element of Cosatu's strategy was to compel the State to introduce the type of legal framework within which we could conduct our activities in a peaceful way. Around collective bargaining, that certainly was a major success that we achieved in the 1980's, the whole period of the 1980's.
However, because Cosatu could not viably exist as a legitimate Trade Union movement without taking up the issues of workers outside of the factory floor, that brought us into direct conflict with the State. With the State on certain areas, there was co-operation, for example within the National Manpower Commission, but in relation to our political activity, the State saw us as a legitimate target. But they were constrained by the fact that we also were regulated and walking in terms of certain legislation that existed and so a lot of the action against us, by the State, was unofficial in terms of the violent side of that Apartheid State. So if you take the 50 attacks against us and our offices and personnel, and members, all of those were done by, outside of the formal structures in which we would then have engaged the State.
I would say that our view is that at every opportunity we saw to engage the State in a peaceful way, through existing structures or through negotiations with the employers, the State's reaction to that outside of those formal structures, was to create this environment and atmosphere where people felt it was legitimate to then go and bomb a Cosatu office, because a picture was painted of us out there, particularly on the SABC and through the media that we were demons, that we were terrorists, that we were allied to the ANC, we were communists, or we were terrorists.
I suppose for me, the issue was that in my statement the statement we have prepared, that we felt very strongly that if, wherever there was an opportunity to pursue peaceful non-violent action, we would advance that cause, but we also had to take some steps in terms of security to protect ourselves where we did perceive there was a threat against us. I am not sure if that answers the question.
JUDGE MOTATA: It does, thank you Mr Naidoo. Thank you Chairperson, I've got nothing further.
CHAIRPERSON: Mr Sandi, do you have any questions that you would like to ask?
ADV SANDI: Not really a question Chairperson, but just to make absolutely sure what the position is in respect of offences. You are only seeking amnesty for the kidnapping and not the assault, because you were never involved in that, for that matter, I understood you to say that you did not associate yourselves with the assault that occurred at the time?
MR RADITAPOLE: Mr Chair, if I may, the history of this matter is that there were two court processes, in the Magistrate's court, the Regional Magistrate's court, the applicants were found guilty of both the charges of assault and kidnapping. The assault charge was later overturned in the Witwatersrand Local Division, and the kidnapping charge is pending before the Supreme Court of Appeals, pending the outcome of this application.
That is where the matter is at the moment.
CHAIRPERSON: Thank you. Mr Raditapole, the Exhibit A referred to in the statements, do you have that?
MR RADITAPOLE: The exhibit is available, Mr Chair.
CHAIRPERSON: Page 18 and onwards? I just want it for record purposes for completeness, and then we will also note that Exhibit A1 which is a joint submission of the applicants, that the first person used at the bottom of page 3, is in fact Mr Naidoo, right on the last line?
MR RADITAPOLE: That is correct Mr Chairperson.
CHAIRPERSON: Thank you. Any questions arising out of questions put by the Panel, Mr Raditapole?
MR RADITAPOLE: No Mr Chair, what I would just like to do in conclusion of this statement read out by Mr Naidoo, just to state that ...
JUDGE MOTATA: Before you do, Mr Raditapole, just for question of clarity here, a document has been handed up to us and it has got a number of descriptions, Exhibit A, B, what have you, and you look at the bundle as well, you have sight of page 18, it also has Annexure A, just for the question of numbering and our records being straight, how do we handle this?
MR RADITAPOLE: Mr Chair, as much as the contents of Exhibit A some of them have been included in the bundle, that we look at Exhibit A purely on its own, as a document that indicates, that lists the kinds of action that were taken against Cosatu. It is really, mainly, press clippings and a schedule that lists the 50, over 50 attacks that Mr Naidoo referred to.
CHAIRPERSON: It is merely part of the joint statement?
MR RADITAPOLE: That is correct Mr Chairperson.
CHAIRPERSON: Mr Naidoo, thank you, that concludes your testimony.
WITNESS EXCUSED
CHAIRPERSON: Mr Raditapole?
MR RADITAPOLE: Mr Chair, if I may, just to conclude, to conclude the submission that has just been made, to state that the conduct of the applicants, with regard to Mr Maleka, we believe was proportional, quite reasonably proportional.
CHAIRPERSON: Yes, but I think let's just finish the testimony first as we said earlier, and then we can make submissions.
