ON RESUMPTION
CHAIRPERSON: We commence with the hearing of the amnesty application of Kimpani Peter Mogoai. Mr Mogoai, before we start, I don't think you were here yesterday when I introduced the Panel, I'll just briefly introduce the Panel. On my right is Judge de Jager, he's an acting Judge, he's a Member of the Amnesty Committee, he comes from Pretoria. On my left is Advocate Sigodi, she's also a Member of the Amnesty Committee, she comes from Port Elizabeth. And I'm Selwyn Miller, I'm a Judge and I come from Umtata, I'm also a member of the Amnesty Committee.
At this stage I'd just like to ask the legal representatives to kindly place themselves on record.
MR ROSSOUW: Thank you, Mr Chairman. My name is Fanie Rossouw from the firm Rooth and Wessels and I'm representing Mr Peter Mogoai. Mr Chairman, I would just like to bring to your attention that in the Formula 1 world, racing world I would be the spare car at this stage, I'm standing in for Mr Lamey who really consulted with Mr Mogoai and I would just like you to take note of that fact as far as the leading of the evidence is concerned.
CHAIRPERSON: We will bear with you, Mr Rossouw, and we thank you for standing in.
MR ROSSOUW: I'm indebted to you.
MR KOOPEDI: Thank you, Chairperson. My name is Brian Koopedi, I appear here on behalf of the victims in this application, one being Jerome Joseph Maake and Sylvie Mavuso.
CHAIRPERSON: Thank you, Mr Koopedi.
MS COLERIDGE: Lynne Coleridge, acting on behalf of the TRC. Thank you, Chairperson.
CHAIRPERSON: Yes Mr Rossouw.
MR ROSSOUW: Thank you, Mr Chairman. I would then call Mr Mogoai and Mr Chairman, he would like to give his evidence in Tswana. I believe there's an interpreter.
CHAIRPERSON: Yes thank you, we have an interpreter.
KIMPANI PETER MOGOAI: (sworn states)
MR ROSSOUW: Thank you, Mr Chairman.
Mr Chairman, can we make the following arrangement, that I start with the assault of Mr Maake at Tzaneen and thereafter the abduction of MK Bab? Would that be the order?
CHAIRPERSON: I think that sounds reasonable. Mr Koopedi?
MR KOOPEDI: I agree, Chairperson, that sounds reasonable.
CHAIRPERSON: Thank you.
INTERPRETER EXPLAINS CHANNELS TO APPLICANT
EXAMINATION BY MR ROSSOUW: Thank you, Mr Chairman.
Mr Mogoai, you are an applicant for amnesty in this matter and the formal part of your amnesty application is that contained on pages 1, 2 through 5 of the bundle, and is that your signature on page 5?
CHAIRPERSON: The question put to you Mr Mogoai, is pages 1 to 5 in the bundle, is that your amnesty application, and on page 5, is that your signature?
MR MOGOAI: That is correct, Chairperson.
CHAIRPERSON: The answer was affirmative to your previous questions.
MR ROSSOUW: Thank you, I'm indebted to you, Mr Chairman.
Mr Mogoai, then your amnesty application has also been supplemented and the supplementary portion is contained on page 6 through pages 19, and is that your signature on page 19?
MR MOGOAI: That is correct, that's my signature.
MR ROSSOUW: Now I want you to - for the background I just want to ask you, do you confirm the background to your involvement with the operations of the Security Branch, as set out on page 12, 13 and to the middle of page 14, paragraph 2.9, do you confirm that?
MR MOGOAI: That is correct, Chairperson.
MR ROSSOUW: Basically, Mr Mogoai, what is contained there is that you were a trained MK member and you were recruited to work for the South African Police, is that correct?
MR MOGOAI: That is so, Chairperson.
MR ROSSOUW: Now Mr Mogoai, I want you then to deal with the assault on a detainee in Tzaneen in 1983, we know now that it's a person by the name of Mr Maake. Now can you tell this Committee, in 1983, how did it come about that you were working in the Tzaneen, Northern Transvaal area?
CHAIRPERSON: Sorry, was it '83 or '82? Why I ask is, perhaps we can deal with it at this stage, we were handed an affidavit by the Evidence Leader from one Jacob Badenhorst, do you have a copy of that? I think in that one he says that during 1970 to '82 he was attached to the Security Branch and then he left the police and then he only came back in 1990, but he remembers the incident in Tzaneen. So by implication it would seem - I don't know whether it's '82 or '83, but ...
MR ROSSOUW: Mr Chairman, I believe it should be '82, if you have regard to page 30 of the bundle, which is the extract of the criminal court case against the applicant, you'll note that the assault took place on 13 September 1982.
CHAIRPERSON: '82, yes, so we'll change that to '82. And then would it be convenient just at this stage to mark this affidavit of Jacob Badenhorst as Exhibit A. Yes thank you. Sorry, Mr Rossouw.
MR ROSSOUW: Thank you, Mr Chairman.
Mr Mogoai, now can you tell the Committee how did it come about that you were working in the Tzaneen area in September 1982.
MR MOGOAI: In short I would say we were a group of three members - I beg your pardon, five members, we were working under Capt Vermeulen.
CHAIRPERSON: Sorry, who was Capt Vermeulen, which division was he attached to?
MR MOGOAI: He was Sectional Commander in Vlakplaas. We left Vlakplaas and we were deployed in Northern Province, where we were supposed to work there and trace members of MK. On a particular day we were called, Capt Vermeulen told us - it was myself, W/O Letsatsi and Mfalapitsa, that we should go to Tzaneen Police Station. It was in the afternoon. When we arrived there around 7 o'clock to 8 o'clock, though I'm not able to recall, it was dark, we entered into a particular office, a certain person was brought, he was tied. We were requested to interrogate him about his association, his association or his activities in regard to ANC and MK.
We interrogated that person but he denied all. During the interrogation there was a time where we began to assault him. No-one instructed us to assault him ...(intervention)
MR MOGOAI: Can you just repeat that name? Who instructed you to assault him?
INTERPRETER: No-one.
CHAIRPERSON: No-one, oh.
INTERPRETER: No-one instructed us to assault him but we just started to.
MR MOGOAI: During that interrogation we started assaulting him.
CHAIRPERSON: And how did you assault him?
MR MOGOAI: With fists and by kicking him.
He denied that he did not have any association with the ANC and Umkhonto weSizwe. We were instructed to leave him. We left Capt Vermeulen there and we went out. The following day, Capt Vermeulen informed us that the Security Commander in Tzaneen was not happy about that assault to that particular person during the interrogation, but that issue was just left that way.
After some time, I don't remember when, we were called to Tzaneen Police Station to come for an identity parade. This person was able to identify us. After that there was a prosecution. In court we were told to dispute that we took part in the assault during the interrogation.
CHAIRPERSON: Who told you that?
MR MOGOAI: That's Capt Vermeulen.
During the court case we were not found guilty. That's how I remember.
CHAIRPERSON: Sorry Mr Rossouw. Mr Mogoai, this assault - before we proceed, was the person that you assaulted, Mr Maake?
MR MOGOAI: Please repeat the question.
CHAIRPERSON: Was the person you assaulted, Mr Maake?
MR MOGOAI: I did not know his name. I don't know him.
CHAIRPERSON: But when you were charged and he was giving evidence didn't you learn who the Complainant was? In the Magistrate's Court case?
MR MOGOAI: I'm not able to recall Chairperson, the name of the person.
CHAIRPERSON: The assault, was it a serious assault? Was the person injured, did it last long, were there many hits, were they severe, were they hard? Just give us some idea of the nature and the severity of the assault.
MR MOGOAI: I assaulted him just on the stomach, because he's a tall person and others, I saw him taking him on the head.
CHAIRPERSON: Was blood drawn ...(indistinct - no microphone)? Was he knocked unconscious?
MR MOGOAI: He did not faint but he had some blood on the face. And then again what I wanted to explain clearly, it is a little bit difficult to explain as to whether, or to explain the injuries he sustained at that time because I was not able to observe them.
MR ROSSOUW: Thank you, Mr Chairman.
Mr Mogoai, now you say that the assault started spontaneously during the questioning of this person, you didn't receive an instruction from anybody to start to assault the person, is that correct?
MR MOGOAI: That is correct, Chairperson.
MR ROSSOUW: Did you feel that it was expected of you to assault him?
MR MOGOAI: I'd put it this way. During those times Vlakplaas people were regarded as people who should force or to dig the truth out of a person in any other method. So those kinds of assaults were usual or were used, were part of the culture used by Vlakplaas members in interrogating people.
MR ROSSOUW: Mr Mogoai, you've also testified before the Amnesty Committee in other applications where you were part of units of Vlakplaas, that assault was used as a method of gaining information and that you partook in these assaults, is that correct?
MR MOGOAI: That is correct, Chairperson.
MR ROSSOUW: Mr Mogoai, the person that you've mentioned who informed you that the person that was arrested, the detainee, was presumably an MK member, can you remember who that was? Who informed you so?
MR MOGOAI: I don't remember that person who informed us, but in many cases if we were told about a particular person, that person would be Capt Vermeulen. Even in this instance I think it's Mr Vermeulen who informed us that that person was regarded, or known as an MK member.
MR ROSSOUW: You then also say in your amnesty application that you were told to question the detainee as to his MK activities, can you remember who told you to question him on that aspect?
MR MOGOAI: It's Capt Vermeulen.
MR ROSSOUW: Was he present throughout the interrogation?
MR MOGOAI: Yes, Chairperson, he was present.
JUDGE DE JAGER: Was Vermeulen in fact the person in charge of the unit, your unit being there, the members of the Security Police? Was he the senior officer amongst you?
MR MOGOAI: That is correct, Chairperson, he was our Sectional Commander in Vlakplaas. He used to go with us when we are deployed.
MR ROSSOUW: Mr Mogoai, then you also testified that during the criminal court case where you were charged with the assault of Mr Maake, you were told to lie, who told you to do that?
MR MOGOAI: It's Capt Vermeulen.
MR ROSSOUW: Mr Mogoai, I'm not going to deal with this in a great length, I just want you to have a look at page 17 of your amnesty application setting out the political background, the political aim to be achieved with the questioning and the use of force, assault in this instance. Do you confirm the correctness of what is written there on page 17?
MR MOGOAI: I do, Chairperson.
MR ROSSOUW: And you've already testified that you received instructions from Capt Vermeulen. Were you paid a bonus or received any benefit from your participation in this assault?
MR MOGOAI: No, Chairperson, I did not receive any special remuneration.
MR ROSSOUW: Did you act in any personal malice towards Mr Maake, or were you just doing your job?
MR MOGOAI: I was doing my official duties, because I did not know him.
MR ROSSOUW: Thank you, Mr Chairman, that's ... (intervention)
CHAIRPERSON: Just before you move to the next incident, this Exhibit A is an affidavit from Jacob Badenhorst who says that he was an officer at the Tzaneen Police Station and he received notice as an implicated person, he said that he was aware that an assault had taken place, that he was upset about that and that he in fact caused charges to be laid. That's basically what the contents of that affidavit is.
MR ROSSOUW: Yes I think, Mr Chairman, that as far as him being implicated is concerned, that would flow from paragraph 2 on page 15, where I think the specific person that was mentioned by the applicant as the person who informed them that this was an MK member and then flowing from that Mr Chairman, to the instruction to interrogate and I've cleared that up in evidence. The applicant has stated it was Capt Vermeulen.
CHAIRPERSON: Yes, it came from Vermeulen and not from Badenhorst, yes. Thank you. I think it's probably better to carry on with the next, or do you want to deal with them, compartmentalise them?
MR KOOPEDI: I think it would be appropriate to let him finish first.
CHAIRPERSON: I think carry on with the next incident, then Mr Koopedi and Ms Coleridge can ask questions in respect of both.
MR ROSSOUW: Thank you.
Now Mr Mogoai, the next incident that you are applying for amnesty is contained on page 18 and further, 18 and 19 of the bundle and substantial further particulars were also supplied in response to questions by the Investigating Unit of the Amnesty Committee. That is contained in pages 23 to 28. Now Mr Mogoai, can you inform the Committee, as far as the abduction of the MK member Bab is concerned, did you know this person, Mr Bab, before he was abducted from Mozambique?
MR MOGOAI: Chairperson, I knew Bab from 1977 in Botswana. I left with him in Botswana as newly recruits to Angola. I trained with him and I left in Novakateng in Angola. When I returned I was in Botswana when I returned in the Republic of South Africa. I met him again in 1981. Both of us were based in Zeerust under Capt Vermeulen. Then he introduced him to us, then I told them that I knew this person and I was with him in training.
He was cuffed when Capt Vermeulen introduced to us, then he informed us he was abducted from Mozambique. He was captured by the South African Defence Force in Mozambique. I did not know as to whether they've completed his interrogation, but I was informed that I should talk with Bab so that he will be able to cooperate with us, to assist the South African Police to trace MK members in the Republic.
MR ROSSOUW: Mr Mogoai, were you involved in the abduction of MK Bab from Mozambique?
MR MOGOAI: I did not know how it came about that he was in South Africa. I did not know who went to Mozambique and I did not know who abducted him, I only saw him inside.
MR ROSSOUW: Now where did you hear, or who informed you that it was in fact the South African Defence Force who abducted him from Mozambique?
MR MOGOAI: It's Bab who told me.
MR ROSSOUW: Now at the place in Western Transvaal, at Zeerust when you discussed this with MK Bab, was he assaulted, was he threatened or was he in any way physically, harm done to him?
MR MOGOAI: When he arrived he was leg-cuffed and handcuffed, but he was not injured, he was normal, without any sign of injuries.
MR ROSSOUW: And what were you supposed to do with him when he arrived there?
MR MOGOAI: I was supposed to recruit him to work with the South African Police.
MR ROSSOUW: And did you - you testified that he was not interested in doing that.
MR MOGOAI: Not at all, Chairperson, he did not have a desire to work with the South African Police.
MR ROSSOUW: Did you report that to anybody that he could not be recruited?
MR MOGOAI: I informed Capt Vermeulen.
CHAIRPERSON: Sorry, Mr Mogoai, just before you go on, just a small point. You keep calling him Capt Vermeulen, I see on page 18 you refer to him as Col Vermeulen, is this Snor Vermeulen we're talking about, who is a Warrant Officer, or a different Vermeulen? Was he a Captain or a Colonel, do you know? Not that it's that important.
MR MOGOAI: I'd respond in this way, I knew him as Koos Vermeulen. Initially in 1980 he was a Lieutenant and after some time he became a Captain, then after some time he became a Major, then after he became a Colonel. I forgot when he was a Captain and when he was a Colonel and when he was a Major.
CHAIRPERSON: Probably, just probably, in 1981 he was then probably still a Captain. Probably not a Colonel.
MR MOGOAI: It is possible, Chairperson, that he was still a Captain.
CHAIRPERSON: But it's Koos Vermeulen.
MS COLERIDGE: Chairperson, if I can just be of assistance here, his full name is Johannes Stephanus Vermeulen.
CHAIRPERSON: Thank you.
MS COLERIDGE: Known as Koos Vermeulen.
CHAIRPERSON: Yes.
MR ROSSOUW: Thank you Mr Chairman.
Now Mr Mogoai, during the time that you had to recruit MK Bab, did you also guard him? Where did you keep him, what measures did you take that he could not escape?
MR MOGOAI: We were sleeping together in one bedroom. We were staying at an old farmhouse. In one room Capt Vermeulen was sleeping and in the one room I was sleeping with MK Bab, together with others. I was sleeping with MK Bab in one room and all the time he was cuffed, at all times.
CHAIRPERSON: The whole time that you were ...(inaudible) maltreated at all, other than being cuffed, was he assaulted at all?
MR MOGOAI: No, Chairperson, I do not want to lie, he was not maltreated.
MR ROSSOUW: Now Mr Mogoai, I want you now to deal with what happened to MK Bab, when did you see him for the last time?
MR MOGOAI: I don't remember, Chairperson, I'm not sure as to whether it was after a week or one and a half weeks. After some time Capt Vermeulen took him with, then he returned after two days, but I don't know what happened to him.
MR ROSSOUW: Did Capt Vermeulen return alone, on his own?
MR MOGOAI: That is correct, Chairperson, he returned alone.
MR ROSSOUW: And did you ask him what happened to MK Bab?
MR MOGOAI: No, Chairperson, I did not.
MR ROSSOUW: Why not?
MR MOGOAI: It was not part of the standing order to ask questions of what happened to a particular person.
CHAIRPERSON: And you never saw Bab again?
MR MOGOAI: Till today, Chairperson, I haven't seen him.
CHAIRPERSON: You never heard of him being in existence again since then?
MR MOGOAI: Recently I learnt from the newspaper that his remains were exhumed by TRC officials. I don't know as to whether that is the person or not.
MR ROSSOUW: Now Mr Mogoai, you are applying for the offence as an accessory after the fact to kidnapping and the illegal detention of this person called MK Bab. Your instructions to guard this person and to try and recruit him, you received that from Captain or Colonel Vermeulen, is that correct?
MR MOGOAI: Correct, Chairperson.
MR ROSSOUW: And that was your duty as a so-called askari at Vlakplaas, to identify other MK members and to try and recruit them.
MR MOGOAI: I would explain shortly that I did not know the nature of my work, I was just told that we should trace members of the MK whom we knew, then thereafter we were given certain duties like guarding people who were detained and again try to recruit MK members to join the South African Police. But in any way that is the work I was given to do, I had to do it.
MR ROSSOUW: Mr Mogoai, did you know that C1, Unit C1, Vlakplaas, was specifically tasked to, as you call it chase(?) MK members and to either eliminate them or to recruit them to work for the Security Force? That was the task of your unit.
MR MOGOAI: That is correct, Chairperson.
MR ROSSOUW: Now in that regard, can you have a look at page 19 at your political objective with your involvement in this matter, the guarding of this person, do you confirm the correctness thereof?
MR MOGOAI: I do, Chairperson.
MR ROSSOUW: Thank you, Chairperson, that's the evidence-in-chief.
NO FURTHER QUESTIONS BY MR ROSSOUW
CHAIRPERSON: Thank you, Mr Rossouw. Mr Koopedi, do you have any questions you'd like to put to the applicant?
CROSS-EXAMINATION BY MR KOOPEDI: Very few questions, Chairperson.
Mr Mogoai, I hear from your evidence and a I also see from your application form that you were at some stage a member of the ANC, now when did you join the ANC and where?
MR MOGOAI: I joined the ANC in Botswana in 1977.
MR KOOPEDI: And why did you join the ANC?
MR MOGOAI: It is because I was against the them government.
MR KOOPEDI: And what made you change your mind, in terms of you being against the then government?
MR MOGOAI: It is because of the conditions at the ANC camps in exile.
MR KOOPEDI: Okay. Now when did you become an askari?
MR MOGOAI: In 1979.
MR KOOPEDI: And for how many years did you work as an askari?
MR MOGOAI: I worked as an askari until 1989.
MR KOOPEDI: Now in that number of years, in 10 years, were you only involved in - I see there are four instances enumerated on page 11, now I want to know if you were only involved in four gross human rights violations for that entire period, or are there any other gross human rights violations that you were involved in?
MR MOGOAI: These are the only ones that I remember.
MR KOOPEDI: Only the four? Now when you were called to the office, the police office in Tzaneen, what were you actually called to come and do? Were you called to come and identify this person or were you called to come and interrogate this person?
MR MOGOAI: I did not know why I was called to the police station, so when we arrived there they told us that there was a person who had been detained and we should interrogate him about his activities and his association with the MK, or his relationship with the ANC.
MR KOOPEDI: Now this interrogation, what does it really entail, does it entail asking of questions, or does it entail asking of questions and assaulting at the same time? What does it entail?
MR MOGOAI: It entailed asking questions so that we could get more information about the other members of MK.
MR KOOPEDI: And when you asked these questions did he answer you?
MR MOGOAI: Yes, he did.
MR KOOPEDI: And why was there a need to assault him if he had answered you?
MR MOGOAI: He was not giving us answers that we wanted out of him.
MR KOOPEDI: So there were specific answers that you wanted from him?
MR MOGOAI: Yes, Chairperson, we wanted to know whether he was the member of the MK.
MR KOOPEDI: What was his response to that?
MR MOGOAI: He denied.
MR KOOPEDI: Did you have any reason to believe that he was a member of MK then?
MR MOGOAI: Well I did not have any reason because I did not know the circumstances surrounding his detention. Those people who arrested him were the people who thought that there were reasons to believe that he was associated or he was a member of the MK or the ANC.
MR KOOPEDI: Okay. Now the people you were with, when last did you see Ephraim Mfalapitsa, W/O Letsatsi and Koos Vermeulen?
MR MOGOAI: I do not remember, it's a long time ago, because I left the Vlakplaas in 1992, so I think the last time I saw them was in 1991. But I think I left C1 in 1988 or 1989, I'm not sure about the exact date. I haven't seen them since.
MR KOOPEDI: Have you ever discussed, perhaps telephonically with them or anyone representing them about this current amnesty application and the fact that you implicate them in your application?
MR MOGOAI: No, Chair. I would explain this way, when they came to fetch one of the people who came to fetch me said that Mr Letsatsi had said that I have mentioned his name in my application form, but personally I haven't spoken to Mr Letsatsi since, together with Capt Vermeulen and Mr Mfalapitsa.
MR KOOPEDI: Do you have any idea why the three did not apply for amnesty in this matter?
MR MOGOAI: No, Chair, I do not know. I did this because I wanted to reveal what I know about this incident, so that I can continue with my normal life. I actually wanted to reveal everything that I took part in. I don't know what they feel about this.
MR KOOPEDI: And perhaps finally on this issue, there's something I need to understand. Your actions when you assaulted Mr Maake, were you actions politically motivated or you were just carrying on with your duties, you were just doing your job?
MR MOGOAI: Chairperson, I would say firstly it was part of my duty and secondly, I was personally against the organisation to which I once belonged. I would these two reasons encouraged me to do what I did.
MR KOOPEDI: Okay. Now on Mr Mavuso, who's been called MK Bab, when he was with you - for what period, for how long were you with him?
MR MOGOAI: Do you mean the first time that I met with him at Zeerust, till the time he was taken away by Capt Vermeulen?
CHAIRPERSON: He's not talking about from when you were with him in Botswana and went to Angola, from after he was captured in Mozambique, yes, that time that you saw him at that farmhouse how long were you with him?
MR MOGOAI: I would say it could be a week or eight days to nine days, I cannot recall.
MR KOOPEDI: During that period, did you ever assault him?
MR MOGOAI: No, I did not, nobody assaulted him. He was never assaulted, Chair. Actually, the difference between myself and him was that I was now a member of the South African Police and he was arrested and he was not yet a member of the SAP, but we still had a very good relationship stemming from the time we were still in exile. There were no hard feelings between ourselves, myself and him.
MR KOOPEDI: Now do you know of any gross human rights violation that occurred to him during that period? It may not be assault, any form of a gross violation of human rights.
MR MOGOAI: Not when he was with me at the farmhouse.
CHAIRPERSON: Save that we know that he was probably, it seems like he was kept there against his will, in that he was handcuffed he was essentially a prisoner and I don't know if it can be classified as lawful detention in those circumstances. But that's the sort of thing that maybe Mr Mogoai would be unaware about, it's a law point.
MR KOOPEDI: I intended to perhaps proceed along those line with Mr Mogoai.
Now do you know who cuffed Mr Mavuso?
MR MOGOAI: No, I don't know, when I arrived there he was already cuffed. He was cuffed from the time he arrived there, he was cuffed with a chain. They used the chain to cuff his hands to his feet with one chain.
MR KOOPEDI: Now you were a member of the police at that stage, you were carrying on your duties and you were guarding an arrested person, you were told and you also have certain proof that this person fought against the government, now what wrong did you do to this person, or by being there when he was arrested, in your own view what wrong did you commit?
MR MOGOAI: I would explain it this way. The only wrong that I did to him, my conscience told me that this person together with other trained MK people, I felt that I was betraying him and other people by leaving them in exile and joining the then government. That his how I felt at that time. That was my conscience then.
MR KOOPEDI: Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you, Mr Koopedi. Ms Coleridge, do you have any questions you'd like to ask?
MS COLERIDGE: No questions, thank you Chairperson.
NO QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Mr Rossouw, do you have any re-examination?
MR ROSSOUW: I have no re-examination, Mr Chairman.
NO RE-EXAMINATION BY MR ROSSOUW
CHAIRPERSON: Judge de Jager, do you have any questions?
JUDGE DE JAGER: No questions.
CHAIRPERSON: Advocate Sigodi, do you have any questions?
ADV SIGODI: Just a few, Chair.
Whilst you were with MK Bab, I'm just going up on what Mr Koopedi asked you about gross violations of human rights, was he given food regularly?
MR MOGOAI: Yes, when he wanted food we would go and buy for him from the cafe. I would always ask him what he would like to eat and he would tell me and I'd go and buy it. He was also a smoker, we used to smoke together. He was fed regularly and we would remove the chain when he wanted to bathe.
ADV SIGODI: And when he left with Vermeulen, was he in a healthy condition?
MR MOGOAI: Yes, Chairperson, he was healthy. I did not notice anything.
JUDGE DE JAGER: Flowing from that, you said the chain was removed, who removed the chain when he wanted to bath?
MR MOGOAI: I do not remember well, because there was someone in our group whom I have forgotten his name, it could be Capt Letsatsi or someone else, because I did not understand those chains properly.
JUDGE DE JAGER: You didn't have a key for the cuffs?
MR MOGOAI: No, I did not have them, Chairperson.
CHAIRPERSON: Just very briefly Mr Mogoai, when Mr Maake was being assaulted, you say Vermeulen was present? In the same room.
MR MOGOAI: Yes, he was present, Chairperson.
CHAIRPERSON: Did he assault as well?
MR MOGOAI: Yes, he's the person who started assaulting him.
CHAIRPERSON: So the assault upon the victim was committed by four people, yourself, the other two askaris plus Vermeulen?
MR MOGOAI: That is correct, Chairperson.
CHAIRPERSON: Yes thank you. Any questions arising Mr Rossouw?
MR ROSSOUW: No questions, Mr Chairman.
CHAIRPERSON: Mr Koopedi?
MR KOOPEDI: Nothing thank you.
MR MOGOAI: Mr Chairman, I want to say something.
CHAIRPERSON: Yes certainly Mr Mogoai, if you want to say something, please be free to do so.
MR MOGOAI: I would request that if Mr Maake is present here I would wish to ask him to pardon me for what I did to him, with all my heart. I want him to know that what I did to him was not because I liked what I did. I do not want to put the blame on somebody, I blame myself for what I did, because I think I took a wrong decision by injuring or trying to injure one of my people. So Mr Maake, before this Committee I would ask you to pardon me. I thank you, Chairperson.
CHAIRPERSON: Thank you, Mr Mogoai.
WITNESS EXCUSED
CHAIRPERSON: No further witnesses for the applicant?
MR ROSSOUW: I have no further witnesses.
CHAIRPERSON: Mr Koopedi?
MR KOOPEDI: There will be no evidence led on behalf of the victims.
CHAIRPERSON: Thank you, Mr Koopedi. Ms Coleridge, no further witnesses?
MS COLERIDGE: No, Chairperson.
CHAIRPERSON: Thank you.
MS COLERIDGE: Chairperson, just for the record I just want to mention that Mr Mavuso's next-of-kin is Philile Mavuso, P-h-i-l-i-l-e.
CHAIRPERSON: And what relationship is that, do you know? A sister, mother, wife, daughter?
MS COLERIDGE: Chairperson, in the acknowledgement of receipt it says sister and then it's scratched out, so I ...
CHAIRPERSON: Okay, but the next-of-kin.
MS COLERIDGE: Yes, Chairperson.
CHAIRPERSON: Thank you, Ms Coleridge. Submissions, Mr Rossouw?
MR ROSSOUW: Mr Chairman, unless there's anything that the Committee specifically wishes me to address you on, the only ...(intervention)
CHAIRPERSON: Let's find out what the attitude of the victims are. Mr Koopedi, is there opposition or what?
MR KOOPEDI ADDRESSES: No, Chairperson, there is no opposition in as far as the one incident is concerned, that is the assault on Maake. Mr Maake is present and he has instructed me not to oppose amnesty but to ask certain questions to be able to understand and know the applicant. I am also not sure what this Committee will be able to do in terms of making any recommendations or anything of the nature with regards to the people who did not apply for amnesty. I indicated to ...(intervention)
CHAIRPERSON: Yes, well we know they of course are exposed to prosecution, but ... yes, although two of them might raise the defence autrefois acqui, but there might be other offences such as perjury.
MR KOOPEDI: That is indeed so Chairperson, I had said to the applicant that I will just raise this matter. And that is it with the first incident.
Now with the second incident, Chairperson, my instructions are not to oppose amnesty, but however I sit in a situation where I believe that this applicant has done no wrong, this applicant has not abducted MK Bab, he has not killed MK Bab, he did not handcuff him, he at all times gave him food, they smoked together.
CHAIRPERSON: There's no offence or delict.
MR KOOPEDI: My submission Chairperson, is that there's no offence and therefore there is no application in that regard.
CHAIRPERSON: Well I think then let us hear Mr Rossouw on that aspect.
MR ROSSOUW: Mr Chairman, I never thought that I would have to convince you of an offence that was committed. Mr Chairman ...(intervention)
CHAIRPERSON: No we're in an unusual situation where we've got many occasions at these proceedings with legal representatives arguing that their client did commit an offence, as opposed to them normally fighting for the innocence of their clients.
MR ROSSOUW ADDRESSES: Mr Chairman, my submissions to you in that regard, as far as the being an accessory after the fact is concerned, we know that Mr Bab, Mr Mavuso, informed the applicant that he was abducted. Now stemming from that abduction, Mr Chairman, the technical word or the technical meaning of abduction would be to ...(intervention)
CHAIRPERSON: Well normally, - I don't think we must get too technical, because unless it's changed since I was at university, abduction normally related to the taking away of young children out of the control of their parents without the permission of the parents for some intention. That was abduction, as opposed to kidnapping. The Act talks about abduction, but I'm sure they don't talk about it in that strict definition, criminal definition, they talk about it in - taken against his will.
MR ROSSOUW: Against his will, yes Mr Chairman. Now it's been continued with the detention. The applicant knew about this, because he was informed. To some extent Mr Chairman, I submit that at least there is some evidence to lead you to the conclusion that this was perpetuated, the abduction was perpetuated because the applicant knew about it and his actions would actually perpetuate that. Now Mr Chairman, that brings us to another question, but wouldn't this now technically be the wrongful detention? I submit that there's a grey area here where both offences would be applicable. The simple fact of the matter is Mr Chairman, he was not arrested in the normal sense, he was not charged, he was not held under any security regulations ...(intervention)
CHAIRPERSON: And he was captured, if we can use that word, out of the jurisdiction of the police in another country.
MR ROSSOUW: That's correct, Mr Chairman, that would be Ephraim's situation, yes. So I would submit at the very least there's unlawful detention here and it's for those two instances that we are applying. It might be a legal argument and the applicant might not be in a position to fully have explained it.
CHAIRPERSON: It's getting a bit technical now, it's a technical type of ... at bets a very technical type of offence.
MR ROSSOUW: Well lawyers are a little cautious, Mr Chairman. Those are my submissions as far as the incident of Mr Mavuso is concerned. Unless there's anything specific as far as Mr Maake is concerned, I submit that amnesty should be granted Mr Chairman, for those offences detailed in the application, specifically perjury and assault. Mr Chairman, using a clenched fist, that would mean with the intent of doing serious bodily harm, and those would be the offences.
CHAIRPERSON: Mr Koopedi, do you wish to say anything now?
MR KOOPEDI: No, Chairperson, no.
CHAIRPERSON: Ms Coleridge?
MS COLERIDGE: No, thank you Chairperson.
CHAIRPERSON: Yes thank you, we'll reserve our decision in this matter and once again I'd like to thank you, Mr Rossouw and Mr Koopedi, Ms Coleridge, for your assistance in this matter. Is that then the end of the roll, Ms Coleridge?
MS COLERIDGE: Unfortunately Chairperson, it is.
CHAIRPERSON: That then brings us to the end of this series of hearings, we'll be resuming in Pretoria on Monday with the next hearings.
I would at this stage just like to thank everybody concerned in these hearings for their assistance, the Interpreters in particular for the work they have done, the cameraman, the sound engineers and the caterers, Mr Japhta, Molly, everybody concerned in making these hearings possible. We've finished three days ahead of schedule, for which we are grateful. We can now carry doing outstanding decisions. Thank you very much indeed.
MS COLERIDGE: Thank you, Chairperson. All rise.
HEARING ADJOURNS
