CHAIRPERSON: We want to start with the proceedings. For the record, it is Friday the 4th of August 2000, this is the continuation of the sitting of the Amnesty Committee at the JISS Centre in Johannesburg. The presiding Panel is constituted as would be apparent from the record. We will be hearing the application of Simon Kaka Ngubeni. The amnesty reference number is AM3128/96.
For the record I'm going to ask the legal representatives to identify themselves. On behalf of the applicant?
MS CAMBANIS: Crystal Cambanis, appearing for the applicant, Chair.
CHAIRPERSON: Thank you, Ms Cambanis. On behalf of the victims?
MR KLUTH: As it pleases you, Mr Chairman. My name is Armien Kluth from Armien Kluth Attorneys in Pretoria, I represent five victims, namely the widows Mesdames Ranseila(?), Swanepoel and Kotze, and then two prison warders who were severely injured and maimed, Messieurs van Jaarsveld and van Wyk. As it pleases you.
CHAIRPERSON: Thank you, Mr Kluth. And the Leader of Evidence?
MS MTANGA: Chairperson, I'm Lula Mtanga.
CHAIRPERSON: Thank you, Ma'm. Yes Ms Cambanis.
MS CAMBANIS: Thank you, Chairperson. The applicant wishes to testify in Zulu, he has no objection to taking the prescribed oath again. Thank you.
CHAIRPERSON: Thank you, Ma'm. Mr Ngubeni, please stand and switch on your microphone and just indicate whether you can hear the interpretation on your headset.
MR NGUBENI: Yes.
CHAIRPERSON: Are your full names Simon Kaka Ngubeni?
SIMON KAKA NGUBENI: That's correct.
CHAIRPERSON: You may be seated. Yes, Mr Cambanis.
EXAMINATION BY MS CAMBANIS: Thank you, Chairperson.
Mr Ngubeni, you are the applicant in this matter, is it correct that you filled out an application form in your own handwriting for amnesty, which appears in the bundle at pages 1 to 13? Do you have the bundle in front of you? Do you see up to page 13 an application filled out in handwriting?
MR NGUBENI: Yes.
MS CAMBANIS: Is that your handwriting?
MR NGUBENI: Yes, it is.
MS CAMBANIS: Mr Ngubeni, if you look at page 14 of the bundle onwards, you will see that there is an application for amnesty which has an English translation, do you see that?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Is it correct that when we went through the English you were unhappy with the English translation?
MR NGUBENI: That's correct.
MS CAMBANIS: Yes. Mr Ngubeni, I'd like you to go back to the original application in your handwriting and if you turn to paragraph 7(b) on page 3 of the bundle - Honourable Chairperson, I have prepared a translation into English, which is a five-page document headed
"Translation by Simon Ngubeni, in consultation with Crystal Cambanis."
CHAIRPERSON: Yes, that will be Exhibit A.
MS CAMBANIS: Thank you, Chairperson.
Mr Ngubeni, paragraph 8(b), is it correct that it reads:
"I was a Commander of the Self-Defence Unit."
MR NGUBENI: That's correct.
MS CAMBANIS: If you turn the page to paragraph 9(a)(i) on page 4, if you look at your handwriting
"I was just wanting to take a hostage with the bomb in order to give a way to get out and give my Commander the whole detail of what happened."
Are you happy with that translation?
MR NGUBENI: Yes, I am.
MS CAMBANIS: Chairperson, I beg leave to strike out the rest of that sentence that's in the paragraph, that is a file note that shouldn't have appeared.
CHAIRPERSON: Oh this is where the bracket starts?
MS CAMBANIS: Where the bracket starts.
CHAIRPERSON: Up to the fullstop?
MS CAMBANIS: Up to the fullstop.
CHAIRPERSON: Very well.
MS CAMBANIS: Mr Ngubeni, paragraph 9(a)(iv) reads
"I committed murder, attempted murder, attempted escape, (and then you've added) possession of handgrenade because I wanted to defend myself because I was being tortured by the Murder and Robber Squad, because they wanted that I must work with them because they wanted to kill the members of MK."
If you look at your hand-written ... are you happy with that translation?
MR NGUBENI: Yes, I am.
MS CAMBANIS: Chairperson, that is where we add now
"Possession of handgrenade."
was not put in.
CHAIRPERSON: Yes, thank you Ms Cambanis.
MS CAMBANIS: Thank you.
Paragraph 9(b) at page 5, you've read the Zulu, it's:
"I committed three ..."
Sorry, won't you actually just read 9(b) into the record please.
MR NGUBENI
"Three policemen were killed and nine were injured, as well as property that was damaged. What I was supposed to do was to take a hostage inside the prison so that I could explain to my Commander what had happened."
MS CAMBANIS: Thank you, Mr Ngubeni. And then at paragraph 10(a) on page 6 of the bundle
"I wanted that the community must see that I was arrested for a thing that I never committed, because the police that arrested me, they wanted to kill the former members of MK."
If you look at your hand-written ... is that a correct translation?
MR NGUBENI: Yes, it is.
MS CAMBANIS: Chairperson, from
"I think you said"
until the end of the page is incorrectly put in, it is a file note. That must be deleted.
CHAIRPERSON: ...(indistinct)
MS CAMBANIS: From the third line
"I think you said"
CHAIRPERSON: All of that?
MS CAMBANIS: All of it until the end of the page.
CHAIRPERSON: Very well.
MS CAMBANIS: Now Mr Ngubeni, paragraph 10(b) is the one that's given us problems. If you'll just explain, is it correct that paragraph 10(b) is the longest paragraph, it starts on page 7 of the bundle, we then continued it on page 10 of the bundle and because there wasn't more space you added in two sheets of paper, page 8 of the bundle and page 9 of the bundle marked in your handwriting, 7 and 8?
MR NGUBENI: That's correct.
MS CAMBANIS: And is that what you want the Committee to understand your answer to be to 10(b), is it these four segments? Page 7 of the bundle, page 10 of the bundle, page 8 and page 9 of the bundle.
MR NGUBENI: That's correct.
MS CAMBANIS: Mr Ngubeni, if we start on page 7
"Because I was arrested for a case which had been committed by people working with the police."
and you pointed out to me that you actually referred to the Third Force. Chairperson, on the 3rd line it actually says in English "Third Force."
MR NGUBENI: That's correct.
MS CAMBANIS: Then
"During my arrest the police said that this crime was committed by the SDU and MK members."
MR NGUBENI: That's correct.
MS CAMBANIS
"They said these people are the people who are involved in the massacres in the township."
MR NGUBENI: That is correct.
MS CAMBANIS
"That is why I say it is political, because they wanted to get political gain by this case."
up to there.
MR NGUBENI: Yes.
MS CAMBANIS
"Even after I arrived at the prison, I found out that people of Murder and Robbery were working with the Prison Service."
MR NGUBENI: That's correct.
MS CAMBANIS: And then you said
"People of the Murder and Robbery came and booked me out without a requisition that was signed by the Magistrate."
MR NGUBENI: That's correct.
MS CAMBANIS
"If I reported this matter to the Head of the prison, but the Head of the prison said that he has nothing to do with this case, because I am in the hands of the police now."
MR NGUBENI: That's correct.
MS CAMBANIS
"I found it was difficult for me at this time, because I was already serving a 12-month sentence."
MR NGUBENI: That's correct.
MS CAMBANIS
"But he said when I reported I am under the South African Police, because, but I was serving a prison sentence."
MR NGUBENI: That's correct.
MS CAMBANIS: Then Chairperson, on page 4 of the - on page 5 of the notes refers, it says
"Continues at page 10."
and that is the translation of those five lines.
"Then this requisition was not coming from the Magistrate, but when I arrived at the office they agreed that the requisition was not coming from the Magistrate."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS
"They were asked - they asked me where I got the guns, when I said I did not know nothing about the guns, they shocked me with electricity. They have hurt me and then they asked me when I left the country."
Is that correct?
MR NGUBENI: Yes.
MS CAMBANIS: Then Mr Ngubeni, in your hand-written note, page 7 and page 8 of the bundle
"Then I asked them what they want I must do. They said I must tell them about the comrades that I came with from exile. They wanted to know where they are staying and what is their job and what is their deployment."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS
"They wanted to know about the Commander of the MK, Commander in the Vaal Triangle."
MR NGUBENI: That's correct.
MS CAMBANIS
"They said if I agreed to work with them they will make a plan that I can go out of jail, because I was already sentenced to 12 months."
That's correct.
MS CAMBANIS
"They promised to give me the money, the house and the guns and the car."
MR NGUBENI: That's correct.
MS CAMBANIS
"They said that the ANC will not do anything for me."
MR NGUBENI: That's correct.
MS CAMBANIS
"They asked me that about because I came from exile, how much I had been paid by the ANC, because of the job that I got in the Self-Defence Unit."
MR NGUBENI: That's correct.
MS CAMBANIS: And then the next line you said
"When I disagreed, they said that they will catch me."
MR NGUBENI: That's correct.
MS CAMBANIS
"After that incident they came to the prison and came and fetched me two or three times per week."
MR NGUBENI: That's correct.
MS CAMBANIS
"When we arrived at the Murder and Robbery Unit, I was being tortured and they beat me every day."
MR NGUBENI: ...(no interpretation)
MS CAMBANIS
"You were tortured with electricity and they beat you."
Is that what your handwriting says?
MR NGUBENI: That's correct.
MS CAMBANIS
"Then they asked me about all the cases that happened in the township. I do not even know about the case. They said I must say I know about the case."
MR NGUBENI: That's correct.
MS CAMBANIS
"They said I think I know a lot."
MR NGUBENI: That's correct.
MS CAMBANIS
"One day ..."
I've got it, Chairperson, as "Commander Culture"(?), in fact it refers to Moses Nzimande in the handwriting.
CHAIRPERSON: Yes.
MS CAMBANIS
"One day Moses Nzimande came to visit me."
MR NGUBENI: That's correct.
MS CAMBANIS
"Then I told him about the torture I received from the Murder and Robbery. Then he said he will go to the Headquarters and report the matter."
MR NGUBENI: That's correct.
MS CAMBANIS
"During the second visit he said that they have a shortage of guns. If they have a gun they will come and fetch me during the Court."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS
"I told him about the grenade. The police did not find it during my arrest, they just took the guns."
MR NGUBENI: That's correct.
MS CAMBANIS
"Then I told him that he must go and fetch the grenade where I left it. Then I told him that if he can try to get the handgrenade, maybe we can use it."
MR NGUBENI: That's correct.
MS CAMBANIS
"Then he came with the handgrenade. He gave it to me."
MR NGUBENI: That's correct.
MS CAMBANIS: And this is where there's a correction.
"I said I will think of a way that I can use it."
MR NGUBENI: ...(no interpretation)
MS CAMBANIS: I ask for a correction there, not that Moses said that.
"During the night ..."
Have you got the part "During the night"?
MR NGUBENI: Yes.
MS CAMBANIS: Please won't you read that into the record.
MR NGUBENI
"On that night whilst I was still thinking about it there was a fight that broke out in my cell. It became necessary that I use that time to escape, because when the police come they will search the cell. I then attempted to use that opportunity. As I tried to grab a policeman, one of the deceased saw the handgrenade and assaulted me, at which time the grenade fell to the ground and it exploded."
MS CAMBANIS: That actually, Chairperson, carries on onto page 8, marked 9 of the bundle, up to the end of the first paragraph. Can I just ask the Interpreter, when she interpreted it did he not say anything about grabbing a hostage?
INTERPRETER: He mentioned grabbing a policeman.
MS CAMBANIS: Grabbing a policeman. Thank you, Chair. Then the second paragraph at page 9 of the bundle
"After the incident mission failed, I was taken to another prison during that time. It was on a Saturday."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS
"On Monday the Murder and Robbery police arrived."
MR NGUBENI: That's correct.
MS CAMBANIS: And then you say
"Those were (and you add) the very same people who were involved during my arrest and torture. They arrived to book me out at Leeuhof and I was taken to the Murder and Robbery Unit office."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS: Then you say
"I was beaten there."
not tortured, Chairperson. Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS
"I was being shocked."
MR NGUBENI: That's correct.
MS CAMBANIS
"They said that I must agree that the ANC said that I must do this."
MR NGUBENI: That's correct.
MS CAMBANIS
"And then they started to ask me about the things of exile, what training I did. Even they asked me about my Commander in exile."
MR NGUBENI: That's correct.
MS CAMBANIS
"They asked me about the Commander at Headquarters, Shell House."
Not the regional, the Commander at Headquarters.
MR NGUBENI: That's correct.
MS CAMBANIS
"Then they showed me the album with photos of other members of MK."
MR NGUBENI: That's correct.
MS CAMBANIS: Then just, what does it say after that, about
"They showed me albums ..."
please read the rest into the record.
MR NGUBENI
"At that prison where I was incarcerated I was held in solitary confinement, I was not allowed to mix with other prisoners."
...(intervention)
MS CAMBANIS: Sorry, Mr Ngubeni, before you get to that paragraph, from "ANC" onwards, the third line, just read that in the record.
MR NGUBENI
"They asked me who was our Commander at ANC Headquarters. They also showed me a photo album of comrades with whom I'd been in exile, as well as of those with whom I had returned from exile."
MS CAMBANIS: Okay. Then the last paragraph on that page
"Even in that prison I was staying in a single cell. They did not want that I must stay with other prisoners. They did not give me rights. They did not want me to see my people, even the lawyer. I stayed there three months without a visit, then I was being chained during the night and during the day. I stayed almost nine months alone."
Are you happy with that translation?
MR NGUBENI: Yes, I am.
MS CAMBANIS: Mr Ngubeni, at paragraph 11(a), at page 10 of the bundle
"I made it with the instructions of the Unit Commander of MK."
Is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS: And then at page 11 of the bundle, paragraph 11(b)
"After my arrest ..."
again I've put Commander Culture, it should read:
"Moses Nzimande"
which is what he's written.
"... arrived. He asked whether I know ..."
Sorry, just actually read 11(b) please.
MR NGUBENI
"After my arrest, Commander Moses arrived to see me. He asked me if I knew about this case and I informed him that I do not know about it as well as the fact that I was being tortured by the police. Therefore we should make a plan on how to escape. He then asked me where I had stored the firearms and I informed him about the bomb, because the firearms had been taken by the police."
MS CAMBANIS: Thank you. Now Mr Ngubeni, that is your original application, are you happy with the English translation of what you made in your prescribed form? Are you now happy with the translation?
MR NGUBENI: Yes, I am.
MS CAMBANIS: And if you look at page 12 of the bundle there's a signature, is that your signature?
MR NGUBENI: Yes, it is.
MS CAMBANIS: And at page 13 you see that it was attested to before a Commissioner of Oaths.
MR NGUBENI: Yes.
MS CAMBANIS: Do you confirm the content of what was said in your application?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Mr Nzimande - I beg your pardon, Mr Ngubeni, if you look at page 21 of the bundle, there's a document headed "Profile", it carries on onto page 22, 23 and 24 of the bundle.
MR NGUBENI: Yes, I see it.
MS CAMBANIS: Do you recognise those four pages?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Please tell the Committee what are those four pages. How did they come into being?
MR NGUBENI: After my sentence I was taken to Leeukop Prison. On my arrival I discovered that there was a Committee, a PPC Committee which involved ANC prisoners. They liaised closely with Luthuli House. As a member of the ANC, SDU or MK you were required to construct a profile which would be taken to Headquarters and that is how this came into being. I was just explaining my background in the ANC for the purpose of taking it to Headquarters.
MS CAMBANIS: Did this Committee have a Chairperson?
MR NGUBENI: Yes, there was.
MS CAMBANIS: Do you recall who that Chairperson was?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Who is it?
MR NGUBENI: It was Ephraim Nkosi.
MS CAMBANIS: And do you confirm the information that's contained in those four pages?
MR NGUBENI: Yes, I do.
MS CAMBANIS: And is it correct that that Annexure was submitted together with your application form to the Amnesty Committee in Cape Town, to the TRC in Cape Town?
MR NGUBENI: Yes, that is so.
MS CAMBANIS: Mr Ngubeni, then after one of the previous postponements in this matter a further document was prepared in response to questions from the Committee - Chairperson, I've just managed to lose it ...
CHAIRPERSON: Is that the Further Particulars which is - perhaps you can just confirm the date on page 4.
MS CAMBANIS: Mr Ngubeni, earlier this morning do you recall being given the document headed "Further Particulars", and you read through them?
MR NGUBENI: Yes, I do.
MS CAMBANIS: And it is numbered from page 1 up to page 13, and this morning you've read through page 1, 2, 3 and 4, is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS: On page 4, is that your signature?
MR NGUBENI: Yes, it is.
MS CAMBANIS: As you will see it was attested to on the 3rd of January this year.
MR NGUBENI: Yes, I see that.
MS CAMBANIS: Do you confirm the contents of that document?
MR NGUBENI: Yes, it is true.
MS CAMBANIS: Now Mr Ngubeni, if you could just, despite all these documents, just explain to the Committee - you are applying for amnesty for the death of certain people, the injuries to certain people and for all related incidents on the night of 18 December 1993, is that correct?
MR NGUBENI: That's correct.
MS CAMBANIS: You've already told the Committee that you were at the time a member of Umkhonto weSizwe and a member of the Self-Defence Units.
MR NGUBENI: That's correct.
MS CAMBANIS: Just briefly tell the Committee in your own words, what was your intention on the night of this incident?
MR NGUBENI: This matter had been discussed prior to this night with my Commander, the plan was that I was going to take hold of a hostage of the prison, particularly the prison Commander ...(intervention)
MS CAMBANIS: Sorry Mr Ngubeni, we can't write, can you just, slowly please.
MR NGUBENI: It was on a Saturday and it was normal practice that the prison Commander would come for a parade, therefore on the Sunday, the 19th was the planned day of the operation. For the reason that we were held in a cell some people, that is inmates, started fighting.
MS CAMBANIS: Mr Ngubeni, before you carry on, you said Saturday was the planned day of the operation, what was the operation going to be please?
MR NGUBENI: Please repeat that question.
MS CAMBANIS: You said that Saturday was the day that had been planned for the operation, just explain, what was the operation?
MR NGUBENI: I was supposed to take the prison Commander hostage and explain that I had been arrested for something I had not done, so that I could be released from prison.
MS CAMBANIS: Mr Ngubeni, you will recall that on previous hearings you were requested to find out - if we can maybe just go back, you had already been convicted of trying to escape from prison, is that correct? Prior to this incident.
MR NGUBENI: That's correct.
MS CAMBANIS: And you were serving a 12-month sentence in relation to that escape from prison.
MR NGUBENI: That's correct.
MS CAMBANIS: And on that first occasion when you had been arrested, for what charges was it? On what charges were you arrested?
MR NGUBENI: It was for murder.
MS CAMBANIS: Do you know, murder of who?
MR NGUBENI: There were several cases, some related to the murder of two persons whose names I cannot recall.
MS CAMBANIS: Mr Ngubeni, you will recall that attempts were made by the Investigators of the TRC to establish on what charges you had been held at that time and we were provided with a docket, extracts from the police docket - Chairperson, there is a lot of documentation that is not before this Committee, it's been handed previously to Evidence Leaders, I will do it piecemeal and Mr - we have had pre-hearings about this, as far as I know he doesn't have any objection to this being handed it ...
CHAIRPERSON: Yes, well we'll see if it's necessary to hand it in, perhaps you can just lead him on that, I mean there can't be a dispute if that's the docket. Perhaps just lead him on what he was in custody for, then we can get to the merits of the matter.
MS CAMBANIS: The case that you were actually booked in under ...(intervention)
INTERVENTION: The speaker's mike is not on.
MS CAMBANIS: ... the extract from the docket in which they say you had been held, relates to - I can't read the docket, Chairperson, all I know is that it's not my client's name.
MR KLUTH: I'm sorry, Mr Chairperson, which doctor are you referring to? Can you just give me that MASS number, the case number.
MS CAMBANIS: I don't even know how to do that, Mr Kluth. It's 183 of 19..(indistinct).
Mr Ngubeni, I'm just going to actually cut it short. Is it correct that all investigations attempting to find out on what charges you had been held for your first attempt from - your first charge of attempting, was found that you were in fact not the accused in those dockets?
MR NGUBENI: That I heard here, but what I know is that I was arrested for a number of cases and I have served sentences with regards to those cases.
MS CAMBANIS: Yes, for the escape from custody you were serving a sentence.
MR NGUBENI: That's correct.
MS CAMBANIS: But relating to the murders on which you were being questioned. For example you referred to Mr ...(indistinct), you were not convicted or charged with any of those murders? Prior to this incident.
MR NGUBENI: No, there was no crime on which I was convicted.
MS CAMBANIS: And do you have any knowledge of the people who have subsequently been convicted in relation to these charges?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Who are they?
MR NGUBENI: Amos Motlapeng.
MS CAMBANIS: Yes. Do you know anything about his background, anything about his politics or otherwise?
MR NGUBENI: I know Motlapeng from the township, he also participated in the Self-Defence Units.
MS CAMBANIS: Yes. Then you've mentioned this in your application, but I would just like you to briefly tell the Committee, after your return from exile, what was your experience in your home area, in relation to the Security Forces?
MR NGUBENI: On my return from exile I discovered that the situation was bad, people were being killed and life could not go on as normal. I was then approached by members of the SDU, as well as people from the civic organisations, to assist because I had received training. They wanted me to assist in the formation of SDUs. After about a month I began experiencing harassment from the police.
MS CAMBANIS: What kind of harassment?
MR NGUBENI: I could not stay at home, that is my parental home, the police would sometimes go there and shoot inside the house. They also wanted to remove my parents to go point out where I was hiding, so my family was harassed. They also left a message that wherever they find me, they will shoot and kill me.
MS CAMBANIS: Do you have any personal knowledge of what was happening to other members of MK in your area at that time, after return from exile?
MR NGUBENI: We experienced similar problems, because we were being harassed and killed. Some MK members were killed in their sleep, as part of that harassment.
MS CAMBANIS: Is this in your area that you're talking about?
MR NGUBENI: Yes, I'm referring to my area.
MS CAMBANIS: Do you know anything about an Operation Echo, Mr Ngubeni?
MR NGUBENI: Yes, I do know something about Operation Echo.
MS CAMBANIS: What do you know about that?
MR NGUBENI: On our return, we were supposed to report our activities to Headquarters, because the ANC was involved in negotiations with the then government, so whatever harassment we experience, we would report it to Headquarters. We were thus informed by Headquarters, that there was an operation with which the police were engaged and it was called Operation Echo. It involved killing members of MK, as well as charging them falsely for criminal offences, things like robbing and murder.
MS CAMBANIS: Do you know any of your comrades who were in fact killed, any of your MK comrades who were killed during this period prior to your arrest, or during your arrest?
MR NGUBENI: Yes, I do.
MS CAMBANIS: Can you just name them please.
MR NGUBENI: I know two or three, Comrade Zwakala Nhlapo from Zone 7, he was shot and killed in 1992, as well as Magesta from Soweto, he was deployed in Sharpeville, he died at the hands of the police, because they were the last people with whom he had been seen, as well as Comrade Ramgwana who was killed on the subsequent week. His entire family, that is seven members of his family were killed.
MS CAMBANIS: Mr Ngubeni, please will you explain to the Committee why a handgrenade was used in this incident.
MR NGUBENI: It was for the reason that at the time the firearms that were available to the units were being rotated to more needy areas, so that our unit did not have any firearms available to them at that time, I was then forced to use the handgrenade, because they could not assist me with anything since they did not have firearms.
MS CAMBANIS: Mr Ngubeni, and then subsequent to this ...(intervention)
MR KLUTH: Mr Chairman, one moment please, I just want to follow right.
MS CAMBANIS: Mr Ngubeni, then you will recall that subsequent to this there was a civil claim launched against the Security Forces, in respect of torture to yourself and some of your comrades and that a settlement was, of money, was paid to you and to Moses Nzimande, your Commander.
MR NGUBENI: Yes, I do recall.
MS CAMBANIS: Chairperson, there's a letter dated the 14th of June 1996 which I've handed to the Evidence Leader, which confirms this and I beg that to be handed in as Exhibit B.
CHAIRPERSON: B.
MS CAMBANIS: B. Thank you.
CHAIRPERSON: Very well, have we got that? Has that been handed in previously, or is this the first time that we have it before a Panel?
MS CAMBANIS: I think it's the first time.
CHAIRPERSON: Yes very well. So that will be B and then the letter, is it the letter dated 14 June 1996?
MS CAMBANIS: Yes, Chair.
CHAIRPERSON: It's on a letterhead of the State Attorney?
MS CAMBANIS: Yes, Chair.
CHAIRPERSON: Yes, so that will be Exhibit C. Thank you.
MS CAMBANIS: And then, Mr Ngubeni, I showed you a copy of the confession that was excluded in your criminal trial, together with the confession, also excluded, by Moses Nzimande. Do you recall seeing that this morning?
MR NGUBENI: Yes, I did see it.
MS CAMBANIS: And we went through the confession, do you confirm all aspects of this confession, or is some of it not correct?
MR NGUBENI: There are some incorrect aspects contained in the confession.
MS CAMBANIS: Chairperson, I beg to hand in then, Mr Ngubeni's confession as Exhibit D and Mr Nzimande's confession, as the next exhibit number.
CHAIRPERSON: Yes, D and E. Very well.
MS CAMBANIS: Mr Ngubeni, I'd just like to give you finally an opportunity to address the Committee on why you say this was a political action and why you should get amnesty.
MR NGUBENI: I regard my action as politically motivated, because on my arrival from exile, I assisted the community in combatting attacks from the Third Force, and we discovered that there were vehicles that were used to shoot and kill people when they held funerals and such things. In that fashion I became a target for the police.
MS CAMBANIS: Yes?
MR NGUBENI: I became a target to the police in the Vaal area. It became clear that I would either be killed or arrested to remove me from the community and also to satisfy their objectives. I was arrested and I was taken to court, where I was charged. The police could not even prove or build up a case against me to secure a conviction.
At that time a Commission was appointed after an agreement between Mr Mandela and de Klerk, for the reason that people were being murdered in the Vaal Triangle, and which the police claimed those murders were committed by MK members. That Commission was the Goldstone Commission.
The police gave evidence before that Commission, that I was one of the people who were involved in killing people in the township. The reason that I insist that my act was political, is because even my arrest, I was arrested to satisfy the objectives, the political objectives of the police at the time.
MS CAMBANIS: Yes. And you had to - you wanted to get out of custody.
MR NGUBENI: That's correct.
MS CAMBANIS: Is there anything further you want to add, Mr Ngubeni?
MR NGUBENI: For now I would like to stop there.
MS CAMBANIS: Thank you, Chairperson, that is all for the ...
NO FURTHER QUESTIONS BY MS CAMBANIS
CHAIRPERSON: Thank you, Ms Cambanis.
You wanted to get out, Mr Ngubeni, to do what? What were you going to do if you come outside?
MR NGUBENI: I had contact with my Commander, Moses Nzimande, to enquire as to what I could do or what the ANC could do for me under the circumstances, and he informed me that there was a plan for me to be taken to Transkei, where I would attend some courses which would enable me to join the integration that was going to take place in the Army.
CHAIRPERSON: So was your intention to continue with your contact, your political activities and so on?
MR NGUBENI: That's correct.
CHAIRPERSON: Yes, thank you. Mr Kluth, any cross-examination?
CROSS-EXAMINATION BY MR KLUTH: Thank you.
Now Mr Ngubeni, precisely how did you get possession of the handgrenade? Could you please explain precisely how it happened.
MR NGUBENI: I could not get a visit in prison, but for the reason that the police officials could be asked to, say, buy something for you at the tuck-shop and if you buy them something, they would allow to meet or to have contact with your visitor. Therefore I also bought them a cool-drink and they allowed me to meet Mr Nzimande, and that is when he gave me the bomb.
JUDGE MOTATA: When you say "police", are you referring to the South African Police, or are you referring to the warders who were members of the Correctional Services?
MR NGUBENI: I refer to prison warders.
ADV SANDI: Just explain, how many were they, the prison warders?
MR NGUBENI: Those who were working in the visiting area were two.
ADV SANDI: Did you speak with a number of them, or just one amongst some of them?
MR NGUBENI: On that day I spoke to one of them, that is the person to whom I handed the money.
ADV SANDI: How much did you hand over to him for purposes of buying the drink?
MR NGUBENI: Five rands.
MR KLUTH: Do you recall the name of this prison warder?
MR NGUBENI: I have forgotten his name, but I can recognise him.
MR KLUTH: So the handgrenade was handed to you at the Leeukop Prison, is that correct?
MR NGUBENI: In Leeuhof Prison.
MR KLUTH: And not at court at, I think, Sebokeng Court, as stated in your confession?
MR NGUBENI: As I've already stated, there are some inaccuracies contained in that statement.
MR KLUTH: So would this be one of those inaccuracies, where you refer to the handgrenade as being handed to you at court?
MR NGUBENI: That's correct.
MR KLUTH: And are you aware of where Moses Nzimande got hold of this handgrenade?
MR NGUBENI: As I explained previously to this Committee, I am a member of MK and Moses Nzimande is my colleague in MK. We received ammunition from Headquarters, because I had this handgrenade as well as firearms, however the firearms were confiscated by the police, but they did not find the handgrenade.
MR KLUTH: That's my question, where was this handgrenade?
MR NGUBENI: I had left it at a DLB.
MR KLUTH: I didn't hear, I'm sorry, you left it where?
MR NGUBENI: I had left it at that spot where we used to hide our weapons, commonly known as a DLB.
MR KLUTH: How many visits were made by Moses Nzimande before the handgrenade was handed to you?
MR NGUBENI: If I remember correctly, he had visited twice before.
MR KLUTH: And during both these occasions you discussed with him your problems, being tortured and so on, is that correct?
MR NGUBENI: Yes, I did.
MR KLUTH: And he would say to you that it was reported to Headquarters?
MR NGUBENI: Yes, he said he would refer them to Headquarters.
MR KLUTH: Precisely what date was the handgrenade handed to you?
MR NGUBENI: I received it on the 18th.
MR KLUTH: Of December, the day of the incident?
MR NGUBENI: Yes.
CHAIRPERSON: What kind of handgrenade was it, Mr Ngubeni?
MR NGUBENI: An F1 handgrenade.
CHAIRPERSON: Where does that originate from?
MR NGUBENI: From Russia.
CHAIRPERSON: And what kind of grenade is it, is it defensive or offensive?
MR NGUBENI: It's a defensive grenade.
CHAIRPERSON: Thank you. Mr Kluth?
MR KLUTH: The stabbing in the cell, do you know anything about that?
INTERPRETER: Please repeat the question.
MR KLUTH: The stabbing in the cell, do you know anything about that?
MR NGUBENI: I was woken by the noise from that fight of the other inmates in the cell.
MR KLUTH: I take it that you know nothing of the stabbing, the fight in the cell.
MR NGUBENI: That's correct.
ADV SANDI: That's very vague to me, because - let me put a question to you, when you got up what did you see, what was happening in the cell?
MR NGUBENI: When I woke up I realised that there were warders in the cell who were trying to mediate in this fight, because some prison inmates were busy fighting.
MR KLUTH: So the only thing that you know is that you woke up and the first thing you saw were warders inside the cell, mediating the fight, is that correct?
MR NGUBENI: That's correct. However, the police, or the warders were outside of the cell, they communicated with the prisoners from outside.
MR KLUTH: It's not clear and I don't know if there's an interpretation mistake or if it's you giving the evidence that way, when you woke up were the warders inside the cell or not? I understood your evidence to be that when you woke up the warders were inside the cell.
MR NGUBENI: When I woke up the police were outside of the cell.
MR KLUTH: Did you see them?
MR NGUBENI: At the time I could not clearly identify the people who were fighting because there were a lot of other people trying to intervene.
MR KLUTH: My question was, did you see the warders? Did you see them?
MR NGUBENI: Yes, I did see them when I woke up.
MR KLUTH: How many were there?
MR NGUBENI: There were two.
MR KLUTH: How could you see them? How was it possible that you were able to see two wardens outside the cell?
MR NGUBENI: I was able to see. From the position that my bed was, I could see through the window and I could see the policemen outside.
ADV SANDI: Ja, but was it not dark inside?
MR NGUBENI: The lights were turned off where we were sleeping.
MR KLUTH: So you were lying on your bed, seeing two warders and if I understand your evidence correctly, apart from this there was also, you noticed a commotion, various people moving around, so much so that you were unable to identify the people involved in a fight, is that correct?
MR NGUBENI: Please repeat that.
MR KLUTH: Which part did you not understand?
MR NGUBENI: The question which was just asked.
MR KLUTH: Okay. If I understand your evidence correctly, you were lying on your bed, from your bed you saw two warders outside, through the window, is that correct?
MR NGUBENI: When I woke up it was because of the noise and as I rose I saw a group of people at the corner, who were obviously fighting and as I looked further on there were also another group who were talking to the police from the inside and the policemen were outside.
MR KLUTH: So there was a group of prisoners fighting and another group talking to the police or warders, is that correct?
MR NGUBENI: Amongst the people who were in the cell, some were involved in the fight, others intervened in the fight and there were others who were speaking to the warders.
MR KLUTH: And you had nothing to do with this at all? With the fight or with the mediation or with any discussions, you had nothing to do with that?
MR NGUBENI: No, I had nothing to do with it.
MR KLUTH: Mr Ngubeni, describe precisely what happened from the time, that time, until the handgrenade exploded.
MR NGUBENI: After this it was normal practice that after such an incident the police would open the cells to try and separate these two people who had been fighting. At those occasions the cells would also be searched. Knowing that I had a handgrenade which could be found and confiscated and thereby causing me to be charged with further crimes, I decided that then this was the opportunity to use the handgrenade.
MR KLUTH: Mr Ngubeni, please describe the events from this time that you noticed a group fighting, a group mediating, a group interfering and the two warders. From the moment that you woke up, please describe precisely the events up to the stage that the handgrenade exploded.
MR NGUBENI: Briefly, I would say the people fought, the police tried to mediate, but they could not make headway, they then decided to call all reinforcements, at which time the alarm was sounded. When the alarm went off a lot of other warders came and when this happened, I realised that we are going to be searched and knowing that I had a handgrenade in the cell, this is the opportunity to use it, so that when they open the cell I will then take the hostage as planned, because if I do not do this they operation may not succeed.
ADV SANDI: I hear you say "I knew that there was a handgrenade - I had a handgrenade in the cell", where exactly was this handgrenade, was it somewhere in the cell or was it in your physical possession?
MR NGUBENI: We have cabinets in prison where you keep your personal belongings and those were locked and that is where I had put the handgrenade.
ADV SANDI: Would there have been an indication as to whose locker that one is, or did you just put your personal belongings in any of the lockers?
MR NGUBENI: Each person had a locker and a padlock for that locker, so that I was the only person who could gain access to the locker through the key.
CHAIRPERSON: Alright, now you must proceed from there, you realise now there's a prospect of, or you realise that the cell would be searched, then what happened? Did the warders open the cell door, come inside? Just carry on with the process.
MR NGUBENI: When the warders arrived, they sprayed teargas into the cell, because we were from the township and we knew that if teargas mixes with smoke, it does not have much of an effect, so some sheets were burnt and after that the police opened the door. As they opened the door I wanted to approach them before they even enter the cell, however the warder that was in front noticed the handgrenade in my hand. As I came closer to the door the warder that was in front saw what I had in my hand, because he just struck my hand, the hand that had the handgrenade. At that time I had my finger on the safety pin and as he struck my hand and the handgrenade fell, my finger pulled the safety pin and as it fell to the ground the handgrenade exploded.
CHAIRPERSON: What, did you then try to escape?
MR NGUBENI: After that yes, I went out of the cell, took the direction of the kitchen and as I tried to escape from there I realised that the way was blocked because there were other warders there and that is where they caught me.
CHAIRPERSON: Thank you. Mr Kluth?
MR KLUTH: Thank you.
So are you saying that, or do I understand your evidence regarding the explosion of the handgrenade, that it was accidental, you never intended the handgrenade to explode were it not for the fact that it was hit out of your hand, is that correct?
MR NGUBENI: That's correct.
MR KLUTH: In fact you know the damage such a handgrenade can cause, not so, you've been trained?
MR NGUBENI: That's correct.
ADV SANDI: May I just ask something Mr Kluth, whilst you're busy checking your papers.
Where exactly did this grenade explode, was it inside the cell or outside?
MR NGUBENI: Outside, right at the door, outside the cell.
ADV SANDI: Can you tell us, Mr Ngubeni, how exactly you intended to effect holding hostage one of the prison officials? What exactly were you going to do?
MR NGUBENI: Usually on weekends the police were working in prison, in other words the prison warders, a few, they are not as many as weekdays. Where I was residing in that cell there was one police of one prison warder and the prison Commander will accompany that one sometimes, or he'll be at the front and I knew he will come and I was going to take the handgrenade and tell him who I was and tell him my intentions. I was going to take him, he was going to open every door for me and I was going to let him go where I could see that I was safe.
MR KLUTH: When had you planned, according to the operation that you had in mind, to use the handgrenade? When would this be, would it be on the 18th, the day you received the handgrenade? Would it be Sunday, the next day, what is the position? During the day, during the morning or the night? How did you plan to use it?
MR NGUBENI: I had planned that I was going to commit this operation on Sunday morning.
MR KLUTH: Now regarding the accidental explosion of this handgrenade, in what hand did you have it, can you recall? In which hand, left or right hand?
MR NGUBENI: Left hand and the safety pin was in my right hand.
MR KLUTH: And which hand was hit by the warder?
MR NGUBENI: My left hand.
MR KLUTH: And when this happened the handgrenade dropped, is that correct?
MR NGUBENI: That's correct.
MR KLUTH: And what did you do that you didn't sustain injury?
MR NGUBENI: Since we were right at the door, as soon as the handgrenade dropped I went back inside the cell, because I knew how dangerous it was and I took a cover, I went straight to the toilet.
ADV SANDI: Were you still inside the cell when this particular prison warder hit your left hand?
MR NGUBENI: I was outside at the door when he hit my hand.
ADV SANDI: What did he hit your hand with?
MR NGUBENI: With a donkey kierie.
MR KLUTH: Regarding this aspect, Mr Ngubeni, I have got difficulty with your evidence-in-chief and then with your evidence in the cross-examination. Regarding your evidence-in-chief, the translation that was conducted between yourself and your attorney, do you still maintain that that was correctly translated?
MR NGUBENI: Yes.
MR KLUTH: Now if you look at page 4 of the translation, the very first paragraph, the contradiction speaks for itself, but I will read it out to you. Have you got it?
CHAIRPERSON: Just read the last two sentences.
MR KLUTH: As it pleases you, Mr Chairman.
Mr Ngubeni, the last two sentences:
"One of the police who saw it wanted to hit me because he saw it, then I threw it and it exploded."
MR NGUBENI: Yes, I do.
MR KLUTH: I would just want to afford you an opportunity to explain the discrepancy with this evidence, regarding what you testified to here under cross-examination.
MR NGUBENI: It might happen that it is merely because I'm not fluent in English and my attorney couldn't understand me, but what I'm saying is that it's not exactly like this one, it's like I'm saying now.
ADV SANDI: Can I just point out here, at page 9 of his application, right on top, he says there, I will read exactly as it says
"The bomb exploded"
The way he has written in Zulu, he doesn't say "I threw the bomb, he says it exploded. So this may be an incorrect translation of what exactly he intended to say.
MS MTANGA: Chairperson, if I may also add to that correction, it actually says on the second-last sentence
"One of them saw the bomb and he hit my hand and the bomb fell down and exploded."
CHAIRPERSON: Yes, ja well that seems to explain possibly, what you had in mind, Mr Kluth.
MR KLUTH: I do apologise, this is the predicament that I foresaw this morning, it's precisely this. I do apologise.
CHAIRPERSON: We all work together to make sure that we have a full picture of what happened.
MR KLUTH: I'm indebted.
JUDGE MOTATA: Just to be of assistance, it is the deceased who saw the bomb and hit it out of his hand.
ADV SANDI: Can I just, whilst Mr Kluth is going through his papers, just to economise on time.
Mr Ngubeni, can you tell us, how did Mr Nzimande manage to smuggle the handgrenade into the prison? What happened on that day when he came with the handgrenade?
MR NGUBENI: I will just speculate as someone who's been trained. As a soldier we know that before you do something or an operation, you go there first and do reconnaissance and when he explained to me he did say the people at the gate, or the securities at the gate, were not searching visitors and he explained to me that he can smuggle it inside the prison and then I told him that I will do my part, I will ask for the police inside the prison to go buy cool-drink for me so that he gets the chance of giving me the handgrenade. That is how it was successful.
ADV SANDI: Was he not talking to you whilst you were on the other side of the glass, as they would normally do in prison?
MR NGUBENI: As I've already explained that there are groups, or prisoners or inmates are classified, as I've mentioned that it wasn't easy, or I was not allowed to have visitors, that is why I had to trick the prison warders and I told them that they can go and buy me, or I gave the police five rands so that he goes and buys cool-drink, so that I get the chance of speaking to my visitor.
ADV SANDI: The cool-drink, were sending him to go and buy it for yourself or were you giving him money to buy himself a cool-drink? I don't follow it.
MR NGUBENI: For himself, because I was basically bribing him because I wanted to speak to my comrade, that's when he took the money and he disappeared, so that I could speak to my comrade.
ADV SANDI: Thank you.
MR KLUTH: Mr Chairperson, I would like an adjournment to avoid any further embarrassment. I would like to have the Zulu translated me with the help of one of the translators, if it pleases you. I'm uneasy at the moment.
CHAIRPERSON: I was going to proceed for a while still, until about one thirty, and I was going to reconvene the hearing at 2 o'clock, because of the tremendous amount of time that we've lost this morning, but it's now ten past one, I'm going to adjourn now until 2 o'clock and reconvene exactly at 2 o'clock promptly.
COMMITTEE ADJOURNS
ON RESUMPTION
SIMON KAKA NGUBENI: (s.u.o.)
CHAIRPERSON: Very well. Mr Kluth?
CROSS-EXAMINATION BY MR KLUTH: (Cont)
Thank you, Chair.
Now you were wanting to escape to prove to the community that you were not part and/or you being MK and the SDUs, were not part of the crimes the police alleged that you committed, is that correct?
MR NGUBENI: Yes, that's correct.
MS CAMBANIS: Sorry Chair, that's inter alia why he escaped. He states many reasons, so it's just for the record, inter alia.
CHAIRPERSON: Yes, I think that is clear, he also referred to the other element of the intended escape.
MR KLUTH: Thank you.
The other reason which seems rather pertinent in your application is that you had to escape for fear of your life, is that correct?
MR NGUBENI: Yes, it is another reason as well.
MR KLUTH: And the handgrenade was only used because of fear that it would be found by the authorities searching yourself, is that correct?
MR NGUBENI: It is also another reason, because I had also realised that if I were not to do anything, then the police will find this handgrenade and the operation might fail.
MR KLUTH: Which reason or reasons have I left out?
MR NGUBENI: You left out one reason, like the fact that police used to come and fetch me from prison and torture me, because they were trying to recruit me to work with them so that we kill members of MK and SDU.
MR KLUTH: Any other reasons that I've left out?
MR NGUBENI: I will think it's almost all the reasons I had.
MR KLUTH: I need to know all the reasons, not almost all, you've got to make sure that I'm aware of all the reasons that you want the Honourable Committee to be aware of, that's it's now being said by you, so please make sure that all the reasons are now being said.
MR NGUBENI: I've mentioned these reasons in my application, that I was scared that police might kill me in prison, because they used to come almost every day and torture me and also for the fact that they were trying to recruit me to work with them. These are all the reasons.
MR KLUTH: Now at the time of this incident, as is stated in your political profile annexed to your application, it's clear that you are aware that at this time the ANC had for a long time already, suspended the armed struggle, is that correct?
MR NGUBENI: Yes, I do know that.
MR KLUTH: And if I'm not mistaken, I think the Constitution was signed on the 6th of December 1993.
MR NGUBENI: Yes, that's correct.
MR KLUTH: Now please assist me, Mr Ngubeni, did you commit this offence, the killing of the prison warders and the injuring of others, other prison warders? Did you commit this because of an arrangement between yourself and Moses Nzimande?
MR NGUBENI: The arrangements which were made was not to kill and as a Unit Commander, a Commander informs unit members about every operation.
MR KLUTH: Now was Moses Nzimande the Unit Commander?
MR NGUBENI: Yes, he was a Unit Commander of the trained personnel of MK.
MR KLUTH: What I do not understand is that you had reported your situation, alternatively your abuse by the authorities, you had reported that previously to Moses Nzimande before he had brought the handgrenade and this would have been then reported to Headquarters, as you refer to it. Why was it under these circumstances, necessary to obtain the assistance of a weapon? And in this instance the only weapon you could find was a handgrenade, why was it under these circumstances necessary to resort to these measures?
MR NGUBENI: With regard to the reporting to the Headquarters, we were trained that we were to report each and every incident to the Headquarters and this didn't stop, that is why we resorted in using the handgrenade as a means to escape.
MR KLUTH: At the time - you've given evidence to that, I just want to confirm, you were serving a sentence for a previous escape.
MR NGUBENI: Yes, escaping from prison.
MR KLUTH: Mr Nzimande, do you have a - I beg your pardon, Mr Ngubeni, do you have a membership card or a number relating to your membership with MK or the ANC?
MR NGUBENI: I do not have a membership of the ANC, I joined ANC after it was unbanned, in exile, and I also do have a combatant name or number.
MR KLUTH: Are you able to recall that number please?
MR NGUBENI: We were not using numbers in MK, we were using codenames.
MR KLUTH: What was your codename?
MR NGUBENI: My first codename was Sidumo Dlamini, the second one is Sipiso Khuzwayo.
MR KLUTH: During your serving of your sentence and during the period of the incident on the 18th of December 1993, were you known amongst your inmates, fellow inmates, as Sidumo?
MR NGUBENI: Yes, when I returned in the township they were calling me Sidumo. In fact, most people know me as Sidumo, even in prison I was referred to as Sidumo.
MR KLUTH: On the night of this handgrenade explosion, what clothes did you wear, can you describe?
MR NGUBENI: Prison pants and a T-shirt with stripes, black and white stripes.
MR KLUTH: Do you know a person by the name of Spings or Spinx?
MR NGUBENI: Yes, I do.
MR KLUTH: Who is this person?
MR NGUBENI: He was an inmate, we were sharing the same cell in prison.
MR KLUTH: Mr Ngubeni, various statements and documents have been provided to ourselves and I'm going to confront you with statements contained in a docket, Vereeniging, MASS number 640: 12/95. This is the docket relating to the, the police docket relating to the investigation conducted regarding this handgrenade explosion, and it consists of various witnesses' statements, do you understand?
MR NGUBENI: Yes, I do understand.
MR KLUTH: Were you in the Air Force gang?
MR NGUBENI: No, it is not so.
MR KLUTH: Did you belong to any gang?
MR NGUBENI: No.
MR KLUTH: Now Mr Ngubeni, the purpose of what I'm going to do, in fairness to you, is the following. You've given evidence that you woke up due to a noise which was a consequence of a fight in the cell, a stabbing, now the statements in our possession say something else and it's necessary for me to tax you on that and to give you an opportunity to react on these various statements and I will put various to you, do you understand?
MR NGUBENI: Yes, I do understand.
MR KLUTH: Do you know Rudolph Kurt Dorapaal?
MR NGUBENI: Are you referring to an inmate or somebody else?
MR KLUTH: Quite correct, an inmate.
MR NGUBENI: I don't remember such a name.
MR KLUTH: Well he's made a statement, an affidavit contained in this docket, where he says that you were together in one cell number 19 and that at approximately half-past four on the afternoon of the 18th of December 1993, there was a commotion in the cell in the form of meetings being held amongst the inmates of that particular cell, you were one of these persons participating in such a meeting. What do you say to that?
MS CAMBANIS: Chairperson, I would like to object to this line of cross-examination.
MR NGUBENI: I dispute everything.
MR KLUTH: I would like to draw the Committee's attention to page 70 of the bundle which contains the judgment given out in the criminal trial, beginning at the second paragraph, in which the learned Judge found that
"Briefly, it appears that the largest proportion of ..."
I'm translating from the Afrikaans.
"of assaults took place in certain premises of the Murder and Robbery offices in Vanderbijl, known as "Die Gat", The Hole."
He goes on to say that:
"Many of the prisoners, including accused's number (so on), gave evidence of torture"
And he concludes by saying that the - if we can skip, he carries on that the assaulters, the persons who carried out the assault are given as Sgt Taylor, Const Chaka, Sgt Groendling, Sgt Greeff. He says that the Station Commander was also involved in the torture. And at the last paragraph he says:
"Even the Prosecutor in the criminal trial expressed his shock at the damning evidence given against the police."
The Judge requests the Prosecutor to take the opportunity to bring this information to the relevant authorities, so that the persons can have charges brought against them. Now this is a finding of the Supreme Court, where witness statements are found to have been extracted under assault and torture that's already been dismissed by a Judge of the Supreme Court, of the High Court as it then was, and these are the statements which are now being presented to my client as containing contradictory statements, and I object on those grounds.
CHAIRPERSON: Mr Kluth, the statement that you've referred to there, does it fall into the category that the Judge refers to?
MR KLUTH: I cannot see it, Mr Chairman. I cannot see that it does form part of it.
CHAIRPERSON: Is that deponent, is he one of these three ... well, it's witnesses that the Judge seems to be referring to.
MR KLUTH: Yes, that agree with the fact that there was torture, these were State witnesses, but they were all three inmates, I'm referring to somebody different, Dorapaal.
CHAIRPERSON: Dorapaal. Yes, no, no, very well, you can proceed with that. Ms Cambanis, perhaps yours is more a matter of argument as to the weight of what this deponent is alleged to have said.
MS CAMBANIS: I will leave that for argument, but he does talk about
"Daar is talle gevangene"
"several witnesses", and he says several of the accused. But I will leave it for argument, thank you.
CHAIRPERSON: I think whilst Ms Cambanis was formulating her objection, the interpretation came over the headset and I think you had disputed the statement that was made to you by the attorney, did I hear you correctly?
MR NGUBENI: Yes, I do dispute and I was going to give the Committee the reasons why I'm disputing what is read to me. All these people who gave evidence, they were the people who assaulted me. Actually when the police brought me, the first people to assault me were the inmates themselves, together with the police.
CHAIRPERSON: Yes, thank you. Mr Kluth, you may take it from there.
MR KLUTH: As it pleases you, Chair.
I don't understand what you mean, that your inmates assaulted you, please explain.
MR NGUBENI: These inmates who had made these statements were the inmates who were in good relations with the police and they agreed together with the police, to form these statements against me and that is why even the police gave them the permission to assault me, because they were all against me.
MR KLUTH: I understood your evidence to be that the police collected you from prison and assaulted you and for fear of your life, you tendered one of the reasons why you needed to escape, is that correct?
MR NGUBENI: That's correct.
MR KLUTH: Now when were you assaulted by your inmates?
MR NGUBENI: On the 20th of December.
CHAIRPERSON: Was it after this incident?
MR NGUBENI: Yes, after the incident.
CHAIRPERSON: Yes. Yes, Mr Kluth.
MR KLUTH: Thank you.
Did you have any problems with your inmates, your fellow inmates, prior to the incident?
MR NGUBENI: No, not prior to the incident I never had any problems with the inmates, except for one inmate, his name is Hankies, he took my friend's money and he brought the money back and the problem was resolved.
MR KLUTH: Why would, according to your version, various inmates make false affidavits, implicating you?
MR NGUBENI: I didn't know why, but what I thought was that police were trying to get evidence, compelling evidence against me, that is why they had to speak to other inmates to do this against me.
MR KLUTH: The strange thing is that for this very crime or offence that you committed, is the reason we are here today, you are seeking amnesty for that, is that not so?
MR NGUBENI: Would you please repeat your question.
MR KLUTH: The strange fact is that for the very crime that you have been found guilty of, based on the police investigation, is the very crime that you are now appearing before this Committee to apply for amnesty, isn't that so?
MR NGUBENI: Yes, it is so.
MR KLUTH: So the fact that your inmates had implicated you in the police docket, isn't altogether false, is that correct?
MR NGUBENI: I did commit an offence, but what they stated in their statements, most of the things were not true.
MR KLUTH: Mr Ngubeni, have you had an opportunity to study these statements, or not?
MR NGUBENI: No.
MR KLUTH: Why I'm asking is because you said most of what they are saying is not true, on what do you base that?
ADV SANDI: I thought you put some of the statements you have to him and he denied that and he gave reasons why those people could have possibly implicated him. I don't understand your question.
MR KLUTH: I'll leave it at that. Chairperson, I would need some guidance regarding, or a direction from yourselves, the statements at lengthy, shall I read them out?
CHAIRPERSON: Yes I was just thinking of that and in the light of the discussion that you've had with my colleague, I don't know if the trend is going to be any different from what you've got out of the applicant now, so I don't know if there's going to be much sense in reading all the detail to him, instead this would be made available to us it seems and instead of you just directing our attention to those matters where he's being contradicted, because I assume that you would probably elicit the same response from him on everything that you put to him. So it might be that you want to round it up by just putting to him that a number of people have made statements, contradicting on the face of it, what he has said and what your argument is going to be, whose version should be accepted, or what the result of that is in your submission, whether he has made a full disclosure or not, and perhaps just let him respond.
MR KLUTH: I'm indebted to you, thank you.
Mr Ngubeni, there are various statements contained in this docket which contradict your version and what they all boil down to, they are emanating from inmates that shared a cell with you and also taken from prison warders who survived the attack, and what it boils down to is the following: That you were not sleeping, you were in fact very active in the cell, that this whole incident regarding the fight within the cell, was planned so that the cell doors could be opened in order for you to throw the handgrenade and deliberately kill and maim people. The stabbing was a planned stabbing, it was a staged fight to draw the attention of as many warders as possible to get the maximum benefit out of the use of the handgrenade.
MR NGUBENI: I dispute that very strongly and in court I heard something for the first time, some of the people who made these statements they were promised money by the Murder and Robbery Unit and they were told that if I were to be found guilty they were going to be given this money. I think that is why most they lied because they had something to gain from lying.
ADV SANDI: The long and the short of your story is that you deny that, you dispute what's being said by those people about you?
MR NGUBENI: Yes, I dispute everything.
ADV SANDI: Can I just come in whilst you're sorting out your papers.
Did these people say anything as they were assaulting you? You said when you were brought into the cells, some of the inmates started assaulting you, did they say anything as they were assaulting you? Did they give the reason or reasons for assaulting you?
MS CAMBANIS: Sorry, can I ... he says it was on the 20th, not during the incident, he says it was ...(indistinct)
ADV SANDI: That is when he - ja, after the incident, yes I follow that.
Did they give any reasons, did they say why they were assaulting you when you were brought back to the cell?
MR NGUBENI: No, I found them in the offices of Murder and Robbery Unit, that is where I was assaulted, not in the cell. The inmates were with the police and I heard that the reason they were doing so, it's because they said I was the one who had thrown the handgrenade.
MR KLUTH: Mr Ngubeni, thank you. So just to recap this particular docket, it consists of various statements taken from inmates, prisoners, it consists of various statements from wardens, as well as from members of the South African Police as they were known at that time. Most of these persons and categories of persons that I've just mentioned, would indicate, including the wardens, would indicate that you were prominently involved, which you deny, is that correct?
MR NGUBENI: I dispute that.
MR KLUTH: A further document that was obtained by the Investigator from the TRC, from the Department of Correctional Services, is a Board of Inquiry held by the Department of Correctional Services into this incident, the incident of the 18th of December 1993, relating to the handgrenade explosion and it's reference number is 1/6/2/1/3/13. It's Afrikaans and it's entitled
"Opstand en geweldpleging - Poging tot ontvlugting 18 Desember 1993, Korrektiewedienste Vereeni-ging."
The finding of this Board, was that a "belhamel" would be - Mr Chairman, what would a "belhamel" be in English, the proper word for "belhamel".
CHAIRPERSON: Is it a scapegoat, I'm not ...(intervention)
INTERPRETER: A rogue.
MR KLUTH: A leader.
CHAIRPERSON: It looks like we can't do much better than a leader.
MR KLUTH: I'll read it in Afrikaans and then I'll translate it as best I can. One of the findings
"Twee belhamels, Ngubeni en Mokoena, word na Groenpunt Maximum oorgeplaas."
What I'm trying to say is that you were, as a result of this Board of Inquiry, you were identified as one of the leaders regarding this particular incident.
CHAIRPERSON: In other words, you were a troublemaker, a leading troublemaker.
MR NGUBENI: I dispute that completely.
MR KLUTH: Now once again, this Board of Inquiry also consists of statements made by various other inmates, who did not all make statements in the docket and vice versa, and according to these statements, they also contradict your version, particularly regarding the fact that you had nothing to do with the staged fight, as you put it that you were asleep and you woke as a result of the noise thereof. The bottom line of this is that you were indeed trying to lure wardens, warders to the prison cell for you to get maximum benefit from using the handgrenade.
MR NGUBENI: I deny that, I dispute the findings of the Inquiry. There were two prison warders who were tortured(sic) and they wanted them to agree as to what they know about the crimes, that is why now they wanted everything to be against me, even what wasn't actually true.
CHAIRPERSON: If I can just mention that there is an authoritative translation of the word "belhamel", I'm told that the more appropriate translation would be a "rogue."
MR KLUTH: Thank you, Chairperson.
How would your escape further the ANC?
MR NGUBENI: Since it was clear at that time that ANC, particularly MK members were arrested for crimes they had not committed, as well as being killed. As I've already explained, even though the ANC had suspended the armed struggle, the cadres were forced to sometimes return to the sort-of warfare because of the pressure that they experienced from the attacks.
MR KLUTH: And four months later we all went to the vote, do you remember that?
MR NGUBENI: I do remember that.
MR KLUTH: Mr Ngubeni, the confessions that Ms Cambanis made available to us, in what respect are you able to say do you not agree with your confession? Could you just enlighten us please.
MR NGUBENI: If I recall the statement correctly, there is somewhere which they said I got the bomb on the 15th of December at Sebokeng, and it was brought by Oupa. That is not correct, it was not brought him and I did not receive the bomb in court, but at the prison in Leeuhof.
MR KLUTH: Are you not fully acquainted with the complete statement, the contents of the complete statement?
MR NGUBENI: I do not recall the entire contents of the statement.
MR KLUTH: Regarding this particular incident, was this approved by the ANC?
JUDGE MOTATA: Before you do, Sir, let's get it clear whether it is the escape or the explosion of the handgrenade, when you say "incident", it's a little broader now, because there's the explosion of the handgrenade and the purpose was to escape. Let's get your question quite clear, whether you say the escape was approved by the ANC, or they handing in of the handgrenade to him by Nzimande, was approved by the ANC. I'm not trying to say anything, but I want ...(indistinct)
MR KLUTH: I'm indebted to you, thank you.
ADV SANDI: Yes, also, "approved by the ANC", is it before or after the incident?
MR KLUTH: I would have wanted that for Mr Ngubeni to answer.
Now incident that I'm referring to, the handing over of the handgrenade to yourself, are you aware that it was approved by anybody in the ANC?
MR NGUBENI: As an MK cadre if I report something to my Commander, I expect him to report to another structure and sometimes he also has the discretion as the Commander, to take an initiative and report later.
MR KLUTH: And the planned escape, I assume your answer would be very similar, whether that was approved.
MR NGUBENI: The initiative was taken on the ground.
ADV SANDI: My understanding of your evidence, Mr Ngubeni, is that at the time of the occurrence of this incident, you were sitting in jail and you had quite a number of problems whilst you were there, the police would come, they would take you out, they would interrogate you, they would try to recruit you, they would torture you and you were not aware of any steps that had been taken by the ANC to alleviate your plight whilst you were in jail and you were trying to do something about your problem, not so?
MR NGUBENI: The prison in which I was incarcerated, there was a system of how communications operated, therefore I did not have a direct contact with the ANC office, because of the category of offence which I had committed. Therefore, there was no way I could have contacted the ANC directly to find out what steps they were taking to assist me or otherwise.
ADV SANDI: ...(indistinct) you are not aware of any steps that are being taken by the ANC to do something about your problem, not so?
MR NGUBENI: That's correct.
MR KLUTH: The consequential killing of these warders, have you heard anything from the ANC regarding that aspect?
MR NGUBENI: No, I have not heard anything.
MR KLUTH: Mr van Jaarsveld, one of the victims that I'm acting for, was the Head of the prison at the time and my instructions are that he denies that you complained to him regarding the fraudulent removal of yourself from the prison and that he said to you he couldn't do much for you because you are in the hands of the police. He denies that, that he said that to you and that you spoke to him.
MR NGUBENI: I dispute that, I did place a complaint to Mr van Jaarsveld, I think on two occasions.
MR KLUTH: In fairness to you, Mr van Jaarsveld's instructions to me are that it might be possible that indeed you could have been removed the way that you say that you've been removed. I just want to add to that, but that is without his approval and his knowledge.
MR NGUBENI: It happened and he was aware of it, because I recall a particular day when they came to fetch me and I was told that I had changed my age when I came into the prison, to which I responded that they have my identity document, so they can determine my age. On the next day they came back, said they were going to take me to a doctor to examine me. On that occasion I went to Mr van Jaarsveld and informed him of what was about to happen, to which he responded that there was nothing he could do because I was in the hands of the police.
MS CAMBANIS: Sorry Chair, I'm not following, is it being disputed that he was taken to Murder and Robbery for questioning from time to time? I didn't ...
CHAIRPERSON: No, no, according to Mr Kluth's instructions, it was quite possible that that occurred, but without the knowledge of van Jaarsveld, so it doesn't seem to be seriously in contention.
MS CAMBANIS: Thank you, Chair.
MR KLUTH: I'm sorry, Chairperson, may I just use my notes please, I request your indulgence. I'm sorry.
CHAIRPERSON: Yes.
MR KLUTH: What I will argue is that your offence was premeditated, you intentionally killed these people, it was not an accident as you say it was, you planned the use of the handgrenade, the circumstances thereof very well, you staged a fight, you threw the handgrenade at a level at which it caused maximum damage, because in fact you very well knew the affect of this handgrenade, you were trained as to its use and due to this people were killed, intentionally, by yourself. You did this in order to escape, for personal gain. There was no political motive behind this killing.
MR NGUBENI: I will dispute that I had such intentions to kill, it was a way of trying to deal with the situation that I was experiencing at the time. With regards to the political motivation, it surprises me for you to state what you've just stated, because my incarceration was as a direct consequence of my being a member of MK and the activities in which I was involved in in the Vaal Triangle. Therefore I would dispute that I had any personal gain, because my activities were aimed at benefiting the people of the Vaal Triangle.
MR KLUTH: What is your commentary on the fact that directly prior to this incident many inmates, or all inmates in this prison were singing and were restless and they were singing words to the effect that "tonight we are going, tonight we are leaving"? What do you say about that?
MR NGUBENI: As a fully trained MK operative, I would not do such, it can only be a civilian who can inform other people about an operation which has yet to take place, because such spreading of information could jeopardise the very same operation, so I dispute what you've just said.
ADV SANDI: Do you know if this kind of singing took place in that cell?
MR NGUBENI: I do not have knowledge that effect.
MR KLUTH: From the evidence and information contained in these two documents, the Board of Inquiry and the police docket that I've put broadly to you, there's also evidence to the effect that Spinx shouldn't have been in your cell on that particular evening and that the two of you planned this, he's supposed to be sleeping in a different cell. What do you say about that?
MR NGUBENI: What I know is that in that section there were three cells and those cells were occupied by people who were awaiting trial. What I knew was that Spinx had been brought there for the reason that he was awaiting trial because he had just committed a crime, that's why he was in the same cell as I was.
MR KLUTH: Mr Ngubeni, regarding your whereabouts, or what was it that you were going to do the moment that you had escaped?
MR NGUBENI: As I've already explained to the Committee, was that I would first report to the relevant structures and secondly, I would go to Headquarters who would arrange for my travel to the Transkei to attend the courses that I've outlined, such courses which were aimed at integration.
MR KLUTH: Just say again, these courses were for integration purposes, is that what you're saying?
MR NGUBENI: That's correct.
MR KLUTH: Chairperson, I have furthermore in my possession a third document being an extract that my offices requested from the Department of Correctional Services, pertaining to Mr Ngubeni's personal file, and this is what we got from them. It doesn't shed much light, but I would think or suggest that it might be of assistance for the record that in spite of my endeavours and of the Honourable Commission's Investigative Unit, we were not able to locate or find the dockets pertaining to the charges as contained in this document. I say this, Chairperson, because it's rather unfortunate. The big problem that we have, if I may just interpose my cross-examination, is the fact that it's not established on what charge or charges in connection with which docket, Mr Ngubeni was arrested and then escaped. All that we know is that he escaped and he was found guilty of that and he served as 12-month sentence.
MS CAMBANIS: Chairperson, I'm afraid I have to dispute that. There was an investigation done at the prison of what case - of what the nature of the charges were on which he was being held, a number was written in at the prison documents and that docket was found and that is the docket that I referred to earlier, which I think now is 163, in which it was alleged according to the prison records that he'd been arrested on, and that's the docket that actually has nothing to do with Mr Ngubeni.
CHAIRPERSON: Is that an offence for which somebody else - I think the name was mentioned here, somebody else was convicted, or arrested and ...
MS CAMBANIS: Subsequently, yes.
CHAIRPERSON: And not the - the applicant has never charged on those alleged offences but somebody else was in fact?
MS CAMBANIS: Yes, yes. And I want to place that on record, because that will be a crucial part of our argument, that he was arrested on non-existent charges from time to time and jailed. And where this Committee, or the TRC has to attempted to investigate, they have never been able to find a docket that corresponds to anything to do with the applicant before this Committee. It's not just a question of dockets weren't found, where dockets have been found, his name doesn't ever appear as one of the suspects or anything to do with the matter.
CHAIRPERSON: Yes.
MR KLUTH: I know we're not in argument stage at the moment, but it is true that dockets were not found, we couldn't locate dockets, the ones that we did find didn't have anything to do with Mr Ngubane.
CHAIRPERSON: Yes. Yes, you were still referring to the ...(intervention)
MR KLUTH: I don't want to ask him any questions relating to this, I was wondering whether I should also include it in the handing in of the other documents, he docket as well as the Board of Inquiry, together with his personal file that I was able to obtain.
CHAIRPERSON: Yes, if you think it might be of some assistance, you might as well hand it in.
MR KLUTH: I think it might be, it's complete Chairperson.
CHAIRPERSON: Do you have a complete ...
MR KLUTH: I think for records purposes, for the history later on, you can say that you had everything that we were able to lay our hands on.
CHAIRPERSON: Ja, I agree there is some merit in that.
MR KLUTH: And it's a very similar situation regarding the Everton docket, MR18301/93, which was provided to ourselves by the TRC, which I agree with my learned friend, has got nothing to do with this application but we were somehow brought under the impression that it might have.
Mr Ngubeni, further to what I put to you earlier regarding the fact that you did this for personal gain and intentionally, I also put it to you that even if you wanted to escape, it was not necessary to do it the way that you had planned, or the way that I put to you, you planned to do it, by killing three people and maiming and injuring various other people.
MR NGUBENI: As I've already explained before this Committee, that the intention of the operation was not to kill, but things took a different turn, so I was compelled to carry out the operation at that time and that is how it came about that people were killed. But that was not my intention.
MR KLUTH: My instructions also are that the people injured and killed in this operation or incident, were not your opponents in the political sense.
MR NGUBENI: I would say they were my opponents because they defended the policies of the erstwhile government, such a person was seen to be supporting the then government. By that I am not saying they should have been killed, but nonetheless they did defend the policies of the apartheid government.
MR KLUTH: Would you agree - or explain to the Committee under which circumstances this grenade should explode to cause maximum injury, relating to the height it must be from ground level.
JUDGE MOTATA: But is that his evidence? Because he says he was going to take the Head as hostage, but the turn of events was that people started fighting, there was some commotion and the warders came and he held onto the grenade to take one hostage and it was hit out of his hands. Now if, because I don't know, I'm merely wanting to get it from you, Mr Kluth, that are you saying that at that juncture he wanted to explode the grenade, the handgrenade?
MR KLUTH: Chairperson, it must be borne in mind that his version is directly disputed and strenuously so. The version of my instructions is that it was thrown to cause maximum effect, maximum damage.
JUDGE MOTATA: But Judge Roos also found that it was hit out of his hand by one Ranseila, if I'm not mistaken. If we have regard to the record, that it was hit out of his hand, he did not throw it per se.
MR KLUTH: Chairperson, yes, thank you.
CHAIRPERSON: Ja, I don't know, if you wanted to elicit the information, perhaps you can just ask him in general if such a weapon has to have a maximum effect, at what sort of level it should be launched.
MR KLUTH: As it pleases you, that's what I was trying to do.
Mr Ngubeni, for this handgrenade to have the maximum damaging effect, how high must it be from ground level? The F1 handgrenade.
MR NGUBENI: From the knowledge that I have, it does not explode just because it hits the ground. If I throw it, it can explode either in the air or on the ground, it depends on the timing that is five seconds.
MR KLUTH: According to your version, did it fall to the ground?
MR NGUBENI: Yes, it did.
MR KLUTH: And it lay there for a while before it exploded.
MR NGUBENI: Yes, a bit of time elapsed because when it was struck out of my hand, I was able to move away from the scene, to move away from the actual point.
MR KLUTH: Where did you move away to?
MR NGUBENI: I went back towards the cell.
MR KLUTH: Did you not move into the toilet, the bathroom area?
MR NGUBENI: The door is close to the toilet, if I had not gone towards the direction of the toilet, I could have been hit by splinters from the explosion, so I did go towards the direction of the toilet.
JUDGE MOTATA: Where would this toilet be, inside or outside the cell?
MR NGUBENI: It is inside the cell, just in front or just next to the door that opens to the outside.
JUDGE MOTATA: Thank you, Mr Kluth.
MR KLUTH: Chairperson, I have no further questions apart from all the documents that I would like to hand up, or make available to the Committee. Perhaps we should have them numbered. I can't use these because I've scratched on them, this is the predicament that I'm in, as well as the court proceedings.
CHAIRPERSON: Yes, I'm just wondering if you can make it available so that, through Ms Mtanga, so that we could at least duplicate it. I don't want to make it part of the record at this stage because I'm not really sure, simply because we haven't looked at all of it and I can see it's quite an intimidating looking bundle of documents and perhaps we should just make it available to the Panel and we will deal with it of course, in our decision, instead of having it formally part of the record. So if that's the only one and it's scratched on, I don't think it would make much of a difference, unless it's your confidential notes that you've written there, that you don't want us to see.
MR KLUTH: Simply markings, Chairperson, markings that I made to identify certain aspects, but no confidential notes.
CHAIRPERSON: Alright. Would you mind and just make it available through Ms Mtanga, she will arrange for us to get access to them and it might be that we might have to duplicate one of it and so on and return your original set. Thank you.
MR KLUTH: Thank you, Chairperson.
CHAIRPERSON: Yes thank you very much.
NO FURTHER QUESTIONS BY MR KLUTH
CHAIRPERSON: Ms Mtanga, any questions?
MS MTANGA: I have no questions, Chairperson.
NO QUESTIONS BY MS MTANGA
CHAIRPERSON: Has the Panel got any questions?
JUDGE MOTATA: Mr Ngubeni, because teargas was sprayed into the cell, when it was opened did you and the other inmates want to get out of the cell?
MR NGUBENI: I cannot really comment about their arrest, but as far as I am concerned, I intended that when they opened the doors I will immediately get out, but I assume that yes, the others also wanted to leave the cell because when the doors were opened they all went out of the cell and that is where the police found them, outside.
JUDGE MOTATA: Let me put it this way, when the door of the cell opened and you encountered the policeman, the two warders, by warders I refer to what you refer to as policemen, were you the immediate person in front of the rest of the inmates in your cell?
MR NGUBENI: Yes, I am the one who was in front because I wanted to get out first, so that I could take a hostage as intended, that is the Head of the prison. So yes, I was the person who was in front.
JUDGE MOTATA: I just want to be sure in my mind, you say, when this handgrenade was hit out of your hands, did it fall outside the cell?
MR NGUBENI: Yes, it did fall outside.
JUDGE MOTATA: Now other than the Department of Correctional Services personnel who lost their lives and some got injured, were some of the inmates of cell 19 injured in the process, or sustain injuries?
MR NGUBENI: No, none were injured and no-one died as a result of that explosion.
JUDGE MOTATA: These police, now I'm turning to the Murder and Robbery Unit, were they accusing you of the killing of Mabave, or were there other offences which you were suspected of?
MR NGUBENI: There were other offences, three of them in which I was suspected.
JUDGE MOTATA: You spoke that they wanted to turn you over, in other words work for them, you recall your evidence in that respect?
MR NGUBENI: Yes, I do.
JUDGE MOTATA: A house and a car was promised to you, according to your evidence.
MR NGUBENI: That's correct.
JUDGE MOTATA: Did they mention what type of car or what type of house?
MR NGUBENI: They did not explain the make of the car. With regards to the house, they said they were going to get me a house in town.
JUDGE MOTATA: Now you've almost said, and I put this in inverted commas, that you were held "in communicado", would I be correct, that for at least three months you had no visits, other than the visitation of the Murder and Robbery Unit police. You recall that?
MR NGUBENI: That's correct.
JUDGE MOTATA: When did you eventually meet your Commander, Moses Nzimande? Because we know it is for three months you couldn't speak to nobody, you had no visits, that kind of thing. When approximately did you meet Nzimande?
MR NGUBENI: With regards to the three months, when I was in communicado, as well as the nine months when I was kept in chains, that happened after the 18th of December, whereas I met Moses before the 18th of December.
JUDGE MOTATA: Now you personally, when were you arrested when you endured all what you've been telling us about, three months, nine months, when were you precisely incarcerated?
MR NGUBENI: I was first arrested in February 1993, that was when I escaped. I was again arrested on the 5th of April 1993.
JUDGE MOTATA: I'm asking you this, I'm trying to do some little arithmetic here, because if you speak of three months and then subsequently nine months chained, it is giving us twelve months, which is a year, would I be correct? I'm not good at mathematics, I must confess upfront.
MR NGUBENI: Yes, I do agree with you.
JUDGE MOTATA: Because it simply tells me that if we take that into account, you must have been incarcerated somewhere in '92, because we know this incident occurred on the 18th of December 1993.
MS CAMBANIS: Sorry Chair, when you asked the question he did say that three months refers to after the incident, after the incident of the 18th. He did say that now.
JUDGE MOTATA: I beg pardon from you, Mr Ngubeni, I missed that part, I'm sorry about that.
CHAIRPERSON: That's the point that Judge Motata made about mathematics and the time of the day and the week.
JUDGE MOTATA: And it is apparent from my calculations that I wouldn't make it on a Friday afternoon.
And you escaped and when this incident occurred, you were now a true prisoner, not an awaiting trial prisoner, because you were sentenced for the escaping?
MR NGUBENI: That's correct.
JUDGE MOTATA: And it's when you were arrested on the 5th of April 1993 and sentenced?
MR NGUBENI: After my arrest on the 5th of April 1993, I was sentenced on the 7th of June, to 12 months imprisonment. That was when I went to the Vereeniging prison.
JUDGE MOTATA: Now during this period, that is after you were found guilty and sentenced to 12 months, did you have any visitation from the Murder and Robbery Unit police? For instance, when you testified that which is not clear to me, that they would come and take you out and you would complain for instance, and they would say to you no, this is not a matter we handle as Correctional Services Department, but this belongs to the South African Police, now I just want to know that is after you have now been sentenced to twelve months, were you having these visitations as well?
MR NGUBENI: Yes, that is correct, they first started visiting me when I was attending trial, as well as after I had been sentenced they would occasionally come to pick me up from the prison.
JUDGE MOTATA: What would they want from you, what did they say to you, because now you were lawfully in custody for an offence of escaping from prison?
MR NGUBENI: They would tell me about murders that were taking place in the Vaal area and also their attempts at recruiting me to work for them.
JUDGE MOTATA: It leaves me a little dizzy. You are now a prisoner in the true sense and they say you should work for them, was the promise of the car and the house still made? And how would you, in any event live in a house in town when you are a lawful prisoner?
MR NGUBENI: That is what they said, what they told me was I was a prisoner serving twelve months, however it would be easy for them to assist me to get out of the prison if I agree to work with them.
JUDGE MOTATA: Were you allowed visits after your lawful incarceration?
MR NGUBENI: After my sentence, yes, I was allowed to have visitors and that is how my Commander managed to come and see me.
JUDGE MOTATA: Thank you, Mr Ngubeni. Thank you, Chairperson, I've got no further questions.
CHAIRPERSON: Ms Cambanis, any re-examination?
RE-EXAMINATION BY MS CAMBANIS: Thanks Chair.
Mr Ngubeni, the Murder and Robbery Unit that you refer to, can you just tell the Committee where is that. Do you recall?
MR NGUBENI: Yes. It was the Vanderbijlpark Murder and Robbery Unit. Their offices were first situated at Flora Gardens, on the second time that I went there, I discovered that they had moved their offices to Escom.
MS CAMBANIS: Yes, but this is the so-called Flora Gardens Murder and Robbery Unit to which you refer?
MR NGUBENI: That's correct.
MS CAMBANIS: Mr Ngubeni, why did you say in your confession that the handgrenade was handed to you at the Sebokeng Police Station?
JUDGE MOTATA: Sebokeng Court. You said Police Station.
MS CAMBANIS: Yes, sorry.
MR NGUBENI: The reason why I said that was an attempt to conceal the fact that my Commander was involved. As a trained operative we were drilled in the fact that if you are arrested or caught, you should not reveal the true facts of the incident. In that way I was trying to conceal that Commander Culture had brought the grenade to me.
MS CAMBANIS: Thank you. And then finally, Mr Ngubeni, you've been referred, or the Committee's been referred to the prison investigation into this incident, do you recall someone called Lieut Matthee?
MR NGUBENI: Yes, I do.
MS CAMBANIS: I'd just like to draw the Committee's attention to paragraph 4 of the report.
Lieut Matthee reports that you spoke to him and that you told him that you planned - this is 4.1.2, - sorry, my Afrikaans has totally escaped me, that you planned that when the cells were opened up on the morning of the 19th, that you would threaten the Head of the prison or the Commanding Officer, that your plan was "omvergewerp" - Chair, my Afrikaans has really escaped me, I'm not sure, at 4.1.2:
"Sy planne omvergewerp is"
JUDGE MOTATA: We've got very good Interpreters, you could read it in Afrikaans, they would interpret, if I'm not mistaken.
MS CAMBANIS: ...(indistinct)
INTERPRETER: The speaker's microphone is not on.
MS CAMBANIS: He had planned on the morning of the 19th of December of 1993, to intentionally threaten the Commander of the prison, so that he could escape.
MR NGUBENI: I do not quite understand fully, are you referring to a Mr Matthee in the Correctional Services or in the Murder and Robbery Unit?
MS CAMBANIS: Sir, I don't know to whom I'm referring, the report just says that you had a conversation with a Lieut Matthee, in which you said this, do you not recall this? If you don't recall it, just say so.
MR NGUBENI: I do not recall speaking to him, but I do know him from the prison.
MS CAMBANIS: Then I'll leave it at that. Nothing further, thank you Chair.
NO FURTHER QUESTIONS BY MS CAMBANIS
CHAIRPERSON: Thank you, Ms Cambanis. Yes Mr Ngubeni, thank you, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Ms Cambanis?
MS CAMBANIS: Chairperson, I also act for the implicated person, Mr Moses Nzimande, who is unfortunately not present today. I had drafted a confirmatory affidavit which he hasn't signed, for purpose of argument I'm actually only going to rely on the confession that's been submitted and therefore I do not wish to submit anything further on behalf of this applicant.
CHAIRPERSON: That would be the applicant's case. Thank you. Mr Kluth, did you intend to call any evidence?
MR KLUTH: Chairperson, I haven't had an opportunity to speak to any one of my clients, I know that regarding Mr van Wyk, who lost an arm, and Mrs Kotze and Mrs Swanepoel, they were not very keen on giving evidence, but regarding Mr van Jaarsveld and Mrs Ranseila, I think Mrs Ranseila would - I haven't had an opportunity at all to speak to her, would want to probably inform the Committee of her suffering and bearing since her husband's death.
CHAIRPERSON: It might very well be that you are able to present that to us from the Bar, without having to call her, because I suppose that can't be in dispute really. But would you like an opportunity just to briefly check on that?
MR KLUTH: If I may.
CHAIRPERSON: Because I was asked to look into the possibility of excusing the applicant completely, so if there's not going to be any other witnesses, then it might very well be that he could be excused and he won't be prejudiced in any way, but it depends on what you tell us.
MS CAMBANIS: Chairperson, none of the witnesses are eyewitnesses, and we're not disputing any injuries or anything like that, so there's nothing that we would ...
CHAIRPERSON: Ja, it might very well be that there is no need to hear any evidence at all, but I think Mr Kluth just wanted an opportunity just to confirm it with the people involved. We'll stand down just for a minute or two to allow you to do that.
COMMITTEE ADJOURNS
ON RESUMPTION
MR KLUTH: Thank you for the opportunity, Chairperson. I have had opportunity to consult with Mrs Ranseila and my instructions are to shortly place on record her circumstances as they are now. She's been attending psychological treatment since March of this year, due to this incident. She is jobless. She's got two minor children and she's struggling and battling to survive, to make ends meet.
Chairperson, regarding Mrs Swanepoel, she's in a similar position regarding psychological treatment, as well as the raising of her minor child, but she's not jobless. I would request that the victims that I act for, be placed on the list and forwarded to the Rehabilitation Committee. As it pleases you, Mr Chairman.
CHAIRPERSON: Thank you, Mr Kluth, we have noted all of those details and the request as well. Ms Mtanga?
MS MTANGA: Chairperson, I have no evidence to lead.
CHAIRPERSON: Ms Cambanis, have you got any submissions on the merits of the case?
MS CAMBANIS IN ARGUMENT: Chairperson, I haven't prepared any written Heads regarding this matter, if I may be allowed to address.
CHAIRPERSON: Yes, that is in order.
MS CAMBANIS: Chairperson, regarding the requirements of the Act, I submit that the client has complied, the prescribed form has been submitted, I think that Section 20(1)(a) has been complied with.
Regarding the question of full disclosure, it is my submission that his application, the consistency of his version is echoed in documents which have now been placed before this Committee, including the police - not the police, the Correctional Services report, to which I referred to earlier, specifically at paragraph 4 on page 9 of that report. He has named his Commander, he has told this Committee everything that he knows about it, and therefore a compliance with the requirement of full disclosure.
Regarding the political motivation, Honourable Committee, the test is whether it is a politically motivated one, the history of this Committee and prior to that in the indemnity in the case of State vs Jacob Rapollo, reported in the Law Reports, that where an escape is found to be in relation to political circumstances, that act becomes a politically motivated act. We submit that we have put sufficient circumstances before this Committee, linking the nature of the escape to the political situation or political activities at that time.
In the Further Particulars we've taken the shortcut by just putting some of the pages from a report called "Shocking Morals", which is a document that was presented to the TRC at the Human Rights Violations Hearings that took place in the Vaal, which chronicles the conflict between the former members of the liberation struggle and the Security Force elements in that area, and I would ask this Committee to take note of that report. I'd also ask the Committee to take note of various Section 29 Hearings that had taken place during this process, relating specifically to the persons named in the Flora Gardens Police Station. And furthermore, directly relevant to this matter, I ask the Committee to take note of page 33 to page 34 of the Judgment of Judge Roos in the criminal matter, where he reinforces the - where he finds that such torture and patterns of distress was taking place and that is it's the same group of policemen. Therefore it's a finding of the High Court and also of the TRC, of the history of the Vaal in and around the time that this offence took place.
It's my submission that there can be no doubt that the applicant's fear for his life was a real one. His version that there was an attempt to recruit and subvert members of the liberation struggle at that time, it's not the first that the TRC has heard evidence like that and that is probable and should be accepted.
The fact that he was hoping that on his escape to be taken to Transkei to the camp, which is mentioned in one of the documents, I forget the name of the camp, all of that has the ring of truth about it, it certainly jells with our history, our unfortunate history in the Vaal at that time, and all those circumstances taken together should suffice to support his version and I ask the Committee to draw the only inference that can be drawn, is that this escape was not for personal gain, not for any malice or for any other reason, but arising directly out of the political situation in the Vaal at that time.
And then finally, his version, again going back to Flora Gardens, that he was arrested time and time again as were other members of MK, on what we refer to as trumped up charges purely for the purpose of having access to him to systematically break him down, recruit him and to get information on the liberation struggle.
My learned friend has referred to the fact that this was only four months before the election, unfortunately this Committee has heard all too often that the last six months leading up to the election, was probably the most violent period of our history, culminating in the pre-election bombings which was within days.
JUDGE MOTATA: Hence the cut-off date was extended to accommodate ...(indistinct)
MS CAMBANIS: Thank you, Judge.
In all those circumstances I submit that the applicant has fulfilled all the requirements of Section 20(1)(a), (b) and (c) and is therefore entitled to amnesty. Thank you very much.
CHAIRPERSON: Thank you, Ms Cambanis. Mr Kluth?
MR KLUTH IN ARGUMENT: As it pleases you, Chairperson.
I am in a similar position as my learned friend, that I have not prepared Head of Argument, but I will try my best from the Bar here.
I have no doubt that the application complies with the requirements of the Act, regarding Section 20(1)(a), I do however have problems with Section 20(1)(b) and (c). Regarding Section 20(2), it is very difficult and vague, the evidence as to precisely which category of offender the applicant finds himself, as set out in (2) and the various sub-subsections thereof. Regarding the criteria of the political motive, I submit that the proportionality of his act fails the criteria to be met, in relation to the objective that he wished to pursue. It is also not clear regarding the approval, whether it was done on behalf of an institution or person. I also submit that the gravity of the act should fail the applicant's application.
I maintain that the motive was exclusively for personal gain. Regarding this particular aspect, the applicant's version is also vague. Various reasons have been tendered. He struggled to convince that his act was in any way furthering a struggle or a political objective of an institution. Various reasons were tendered by him regarding this particular act or offence. It would seem to me that the overriding reason for his act was one of self-defence and I submit that that does not suffice to meet the criteria.
Chairperson, regarding the question of full disclosure, Section 20(1)(c), I strongly submit that the facts that preceded the handgrenade explosion are not the way the applicant has forwarded that today. There is overwhelming evidence contained by way of affidavit within the Board of Inquiry by the Department of Correctional Services, the police docket relating to this incident, as well as the trial, the Supreme Court trial where there definitely was restlessness amongst the inmates, there was expectancy and anticipation in the air. The incident which caused the warders to raise the alarm and attend to prison cell C19, was staged. Mr Ngubeni played a very prominent role in this staging. And I would submit that regarding the aspect of full disclosure, that that has not been complied with.
That is in short, my address, Chairperson. If there are aspects which you would like to hear me on specifically, I'm prepared to risk myself at this stage at your mercy.
CHAIRPERSON: No, we decline to accept that invitation, Mr Kluth, but thank you very much.
MR KLUTH: Thank you, Chairperson.
CHAIRPERSON: Ms Mtanga?
MS MTANGA: Chairperson no, I will not be making any submissions, I leave this matter in your hands.
CHAIRPERSON: Thank you, Ms Mtanga. Ms Cambanis, any reply?
MS CAMBANIS: None, thank you Chairperson.
NO REPLY BY MS CAMBANIS
CHAIRPERSON: Well thank you very much, that would conclude the formalities in regard to the evidence, the arguments, the hearing of this application. It is a matter that entails quite a number of issues that we as a Panel will have to consider and look at. There are quite a number of documents that we will have to consider in order to come to a decision in this matter, and in the circumstances we would require some time to come to a decision on the matter after having considered all of the material that has been placed before us. So we will reserve the decision in the circumstances.
We would like to take the opportunity to thank Ms Cambanis and Mr Kluth and Ms Mtanga, for your assistance in this matter and also to the interested parties for having attended. We have noted everything that has been placed on the record in regard to the circumstances of all of the interested parties, as well as the request that Mr Kluth had put to us insofar as their circumstances are concerned, and that will all be considered in the matter. We would also just like to take the opportunity, because it is the conclusion of our session here, to thank our staff and everybody else who assisted us in having been able to have this hearing here, the proprietors of this venue, everybody else who has been involved in making it possible for us to have the hearing here for the last two weeks. We appreciate your assistance. We're adjourned.
HEARING ADJOURNS
