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Amnesty Hearings

Type AMNESTY HEARINGS

Starting Date 20 May 1996

Location PHOKENG

Day 1

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+Incorporation

MR MPSHE: Other interested parties like the office of the Attorney-General, office of the Correctional Services were also informed. Thank you, Mr Chair.

JUDGE MALL: You now call the case of Diali and Mokgatle. Counsel appearing for these applicants please place themselves on record.

MR CURRIN: My name is Brian Currin, I am an associate with the firm of attorneys Bell Dewar and Hall, and I represent the two applicants in this matter.

MR KNOTT: My name is Greg Knott, I am a director of Bell Dewar and Hall, I am representing the two applicants along with Mr Currin.

JUDGE MALL: Are there any other people present here who wish to make representations or are there any of their legal representatives present?

On behalf of the Amnesty Committee, the two counsel representing the Committee, will be Mr Mphse and Mr Robin Brink. You may proceed.

MR CURRIN: Mr Chairperson, Mr Deputy Chairperson and members of the Committee, as already indicated, my colleague Greg Knott from the firm Bell Dewar and Hall, and I, as special associate of that firm, appear on behalf of the two

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applicants in this application, in terms of section 19 of the Promotion of National Unity and Reconciliation Act of 1995.

Sir, we have studied the Act carefully. We have formulated interpretations of key sections of words and phrases which we believe are correct. We of course, find ourselves in a difficult situation, to the extent that this Act has never before - these particular sections of the Act - have never before been applied and interpreted. We know that law is not easy and we anticipate that you may well have formulated interpretations of sections of words and of phrases which differ from ours.

I am taking the unusual step therefore, as part of my opening address, just to share with you certain aspects of our understanding, so that when we launch into the application and lead our witnesses, at least we have some sense that we may or we are heading in the right direction. We would request the Committee, if at any stage you believe that we are barking up the wrong tree or that you differ with our interpretation, to kindly give us the benefit of your views so that we can reconsider our approach.

I intend, Sir, right from the outset now, to as part of an opening address, hand up a document and place that document on record by reading it. That document provides what we believe to be critical background information into the political context within this particular region within Bophuthatswana, what was then Bophuthatswana and now the North West Province.

Mr Chairperson, would you like a copy of the document which is going to be read onto the record? There are copies

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available.

JUDGE MALL: It is on the strict understanding that what you are going to read onto the record at this stage is not regarded as part of the evidence.

MR CURRIN: We don't submit it as evidence.

JUDGE MALL: Very well.

MR CURRIN: Both the applicants in this matter are members of the Baphokeng tribe. Boy Diali was born in 1961 and Christopher Mokgatle was born in 1943. They came into this world as rightless citizens of South Africa and who from 1977 became rightless citizens of the independent homeland of Bophuthatswana. Following the events of December 1990, those events which give rise to this application, they were arrested, they were detained, they were tried, convicted and sentenced as Bophuthatswana citizens and they were sent to Odie district prison to serve their sentences.

On the 1st of January 1994 through the promulgation of the Restoration of Extension of Citizenship Act, all residents of Bophuthatswana, including the then President Lucas Mangope, Boy Diali and Christopher Mokgatle, the two applicants, attained South African citizenship. It is therefore as South African citizens that the two applicants now apply to this Commission.

In setting the context and the background to the events, leading up to December 1990, we would start in 1977 in Bophuthatswana.

It was on December the 6th of that year that Bophuthatswana took independence from South Africa and from its birth to its gracious demise in April 1994 it was ruled by Chief Lucas Mangope and his Bophuthatswana National Party.

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Bophuthatswana was governed by a legislative assembly

with 99 members. 48 of these members were designated by chiefs and headmen. In addition to this weighing, the constitution of Bophuthatswana allowed for the retention of tribal customs and more importantly, for the full and unaltered retention of tribal authorities. These tribal authorities held extensive powers, encompassing the management of tribal affairs and the giving of advice to the Bophuthatswana Government on local affairs. Within this they held far-ranging powers, including powers of arrest, sentencing, the levying of taxes and the prohibition of unlawful gatherings.

Given the extent of these powers, it is not surprising that President Mangope embarked on a systematic replacement of legitimate chiefs with those who would support and maintain his peculiar system of governance. The 18-year history of this fragmented make-believe nation is littered with names which have become synonymous with repression and oppression in our country. Winterveld, Leeufontein, Braklaagte, Thahung and Phokeng - which is the subject of this application. It is a history of forced removals, of non-Tswana citizens, a history of corruption, banning of organisations, political imprisonment, deportations, police brutality, torture, hangings, impoverishment and degradation. It is a history strangely enough, of a homeland with a bill of rights, albeit a bill of rights with a difference. It contained within the preamble of the constitution, words which differ considerably from the present South African Constitution. The final clause of the Bophuthatswana constitution read as follows:

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"The rights and freedoms defined in sections 9 to 17 ..."

nd those were the fundamental rights -

" ... may be restricted only by a law of Parliament and such law shall have general application."

The bill of rights therefore, was superseded with relative ease by the Internal Security Act and other pieces of repressive legislation and was in fact, unenforceable in the Bophuthatswana courts.

It is a history presided over, and determined by the self-proclaimed leader, Lucas Mangope and his partner, the National Party government. The National Party bolstered his rule economically, through providing directly and indirectly, 74% of the annual budget. Militarily, most apparent during the intervention to end the coup attempt in 1988, and also politically. By 1994 Lucas Mangope retained power quite literally through force. His electoral support among the people of the region stood at an all-time low of 2%.

ADV DE JAGER: Mr Currin, could I kindly interrupt. Is it possible for you to refer to a government instead of a specific person? It was the government that have done certain things and refer to that government and let's not implicate persons. It may create further difficulties.

MR CURRIN: Okay. As you please, I will refrain from mentioning persons.

JUDGE MGOEPE: Sorry, Mr Currin, you may want to remind yourself that we suggested at some stage in chambers that we were uncomfortable about - we might be uncomfortable about

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this document, without us seeing it first.

MR CURRIN: That is correct, but then you did not ask to see it first, if I remember correctly, and it was agreed that it would be presented.

JUDGE MGOEPE: I never understood seeing first, meaning anything other than seeing it first, because now it is full of certain allegations against certain people. Can you tell us what you are going to do about these allegations contained in this document?

MR CURRIN: To the extent that the Committee believes that allegations which are contained in this document, which allegations are the consequence of lengthy and in-depth research, we will be able to substantiate. If it is necessary for us to call 20 witnesses to substantiate the allegations contained in this document, we will do that.

JUDGE MGOEPE: If it turns out that they are not able to substantiate that?

MR CURRIN: We have no doubt. This document is a document of thorough professional research. This document contains the result of that research. I have absolutely no doubt in my mind and I stand by the content of this document and witnesses will be called, if necessary, to substantiate the content of this document.

JUDGE MGOEPE: I have a lot of respect for those authorities that you are referring to, and I have a lot of respect for your conviction that you will be able to substantiate these allegations. What if they are not, some of them or a number of them are not substantiated. Are we going to strike them off the record or what are we going to do with those allegations, which would not have been substantiated?

MR CURRIN: Sir, I believe it is common practice in many

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instances, to make a submission at the outset, as part of an opening statement. This submission is a submission which I am making, which is putting this application in a context

which I believe, with respect, is absolutely critical to the application, because the offences that were committed, were not committed in a vacuum. They were committed in ... (intervention).

JUDGE MGOEPE: You may continue, Mr Currin, sorry to interrupt. You may continue to do that, but speaking for myself, this goes far beyond an opening address. It contains substantial allegations of a direct nature.

MR CURRIN: It certainly does.

JUDGE MGOEPE: And I don't think that allegations should be levelled on a platform other than a platform from which people who make those allegations, should be cross-examined.

MR CURRIN: There is no difficulty at all. Should the Committee decide that we must call particular witnesses to substantiate allegations in this document, to be cross-examined, we will not hesitate in doing that. May I just mention that the reason why we prepared this particular document. Being the first application, we were not sure and having been given four days in which to prove our case, we were not sure, the nature and extent of the evidence, that we were expected to lead, in establishing our clients' case. What we did was, we communicated with the Committee to try and get some guidelines, and we were told that we should deal with the application as we deem fit, but - and in terms of the guidelines, we should ensure that we could curtail evidence as far as is practically possible, and that is really the intention of the document.

As you know, the Act does provide very particularly,

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that the Committee needs to have reference to the context in which the crime was committed. The context is something which is elaborate, it is complex, it has far-reaching

implications. There are many, many people that have written about Bophuthatswana, many, many people who have researched and published about Bophuthatswana. We can call all of those people if we need to, but we are trying ... (intervention).

JUDGE MGOEPE: Mr Currin, you have already started reading. I said to you to go on. We are prepared to suffer the balance of your document.

MR CURRIN: Thank you.

JUDGE MALL: On the understanding again, that what you are going to read is not regarded as evidence. So this is an outline of what you are proposing to, the evidence you are proposing to place before us.

MR CURRIN: Yes, and what we are also saying, we are saying that we believe that this background which is being submitted, is a correct - we believe that it is a correct reflection. We will prove it if we have to. We believe that it is important to place it on the record so that the Committee members have that background, an extended background, if necessary, when they consider the applications and the other details relating to the specific event, offence which gave rise to this application.

I recommence at the top of page 5.

"Resistance, both organised and spontaneous to the formation and continued existence of the homelands, has long been a feature of South African politics. In Bophuthatswana itself,

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political struggles were waged by rural communities and political organisations against issues of forced incorporation

into Bophuthatswana, that is in respect of Braklaagte, Machakaneng, Hartebeesfontein and Leeufontein.

"The Bophuthatswana Government's intervention into tribal authorities and regency, for example in Taung, in Phokeng and also citizenship issues, with the eviction and prosecution of non-Tswanas, starting as early as 1978. That was in Winterveld, Onverwacht and of course against the high level of repression visited upon residents of this homeland."

Mr Chairman, should you require an adjournment in order to read this entire document before I proceed with it, I have no - obviously no difficult with that at all. If that would make you feel more comfortable, then I would certainly suggest that we adjourn for that purpose.

JUDGE MALL: We have commenced. We have agreed to allow you to address us.

MR CURRIN: Thank you.

JUDGE MALL: And I would like you to exercise your professional skills in addressing us in all matters which you think are relevant.

MR CURRIN: Thank you Sir.

"These struggles at a local and community level had the backing and organisational support of the UDF, although this had been banned in

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Boputhatswana and of the ANC, both from exile and also following its unbanning in 1990. In addition to this, given the

proximity of certain segments of Bophuthatswana to the border with Botswana, a high level of infiltration of MK cadres occurred in this particular region. Clashes between MK soldiers and the BDF ..."

That is the Bophuthatswana Defence Force -

"... and the South African Defence Force, took place around Zeerust, Ramaquabane, Lamutso and Singh. Such clashes served as an inspiration for those persons resisting the government in the rural villages. The ANC, while in exile, also sent strong messages to the population through broadcasts on Radio Freedom and through the President of the African National Congress, Oliver Tambo."

Furthermore, we will be calling a witness from the African National Congress to give whatever support is necessary, to this particular evidence. The extract which is quoted here deals with a message which is certainly a most unfortunate message, but it is important that that message be placed on record, and that appear in Shishaba, and it read as follows:

"Let the racist magistrates and lawyers shout their lungs out in scorn of the necklace method for punishing collaborators. Let them call the

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people's courts Kangaroo Courts, if they want to. But we shall always reply to them by saying, when we say power to the

people, we also mean the right to suppress the enemies of the people, we also mean the country's administration and control by ordinary people.

Struggles during this period in Bophuthatswana and throughout the country were focused on destroying and destabilising the government at all levels. In communities throughout the country attacks were launched against the most immediate representatives of government, namely the councillors, the policemen, the soldiers and all those who were perceived as collaborators. Those who created government policies and sat in government largely escaped harm. Those that they placed in positions of authority at a local level were those who felt the brunt of the people's anger and frustration. In many areas the political struggles that were waged around the slogan `Forward to People's Power', were struggles to remove illegitimate authorities at local level and to replace them with legitimate ones. Hence, the emergence of block committees, of action committees as we saw in this particular case, of street committees, self-defence

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units and people's courts.

In Bophuthatswana in the areas such as Garankuwa and Shisoshongowe which lay in

close geographic proximity to Pretoria, this is precisely what was happening. In the more rural communities similar struggles were being waged, but the circumstances and the structures were different. The illegitimate authorities and those who were regarded as collaborators, like the deceased, who have been given positions of power by the previous President, the previous government of this homeland, against the wishes of the community as will be testified to later in this application.

Throughout 1990, Bopthuthatswana saw intense resistance and confrontation with the security forces. The UDF's Murphy Morobo acknowledging the role of local organisations, we emphasise local organisations because it is very pertinent, said at the time the disturbances in these areas are a vindication of our position that at the end of the day it is the people on the ground who will determine the future. Both in the rural and peri-urban areas of the homelands, local civic structures under the broad umbrella of the Congress Movement, led the resistance struggles. PHOKENG HEARING AMNESTY/GAUTENG

This was so in Winterveld, Phokeng and in the struggle against forced incorporation in Braklaagte and

Leeufontein. It was these struggles that ignited the widespread resistance that consumed Boputhatswana in 1990, the year under discussion, and it is necessary therefore to examine that briefly.

The people of Braklaagte first heard of the plans to incorporate them from the then Western Transvaal into Bophuthatswana in 1986. They then embarked on a lengthy and peaceful campaign to resist incorporation. They petitioned the National Party Government. They wrote numerous letters to them requesting meetings and highlighting the issues in the Press. They were ignored by the Government until 1988 when there was a ray of hope when Mr Gerrit Viljoen agreed to meet a delegation headed by the then Chief Pachsi Sebogode. Two weeks later they were however incorporated into Bophuthatswana, as was the neighbouring community of Leeufontein who until then had known nothing of this plan.

All these factors, Sir, are relevant to the background of the actions which gave rise to this application.

"Following a court application

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incorporation of Bophuthatswana was declared valid and from April 1989 the

Bophuthatswana authorities and security

forces moved into the villages. This set off a cycle of resistance and bloody repression that has been well-documented. The resistance culminated in July 1989 when nine policemen and two civilians were killed, following the banning of a community meeting at Leeufontein. The leader, the president of Bophuthatswana, leader of the government, issued a strongly worded warning to these communities."

This is what he said, and it is very important, if one recalls what was said:

"Bophuthatswana is like a prickly pear, very strong, tasty, but it is also dangerous. I warn you strongly not to abuse me. I am not your dust bin. Do not play games with me. If you do I will prick and pierce you like the prickly pear".

The South African government was quick to blame radicals and the United Democratic Front, which was banned in Bophuthatswana, for the turmoil, and they put the South African Defence Force and the South African Police on standby. The Minister of Foreign Affairs, Mr Pik Botha said it has to be seen that the

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security of South Africa and independent states are capable of ensuring calm. He was, however, proved wrong. Calm was

not ensured and resistance continued. The President, the then President of Bophuthatswana, his hold on power became increasingly tenuous, despite his insistence in 1990 that Bophuthatswana would, and to quote him `be an independent state one hundred years from now'.

In 1994, deserted by his security forces and supported only by a small group of people, the Government of Bophuthatswana fell.

It is within this context that we must look at the history of the Baphokeng and the history of the two applicants, Boy Niali and Christopher Mokgatle.

The Baphokeng, who number approximately

300 000, live mainly in and around Phokeng, north of Rustenburg. Phokeng is the main village in this tribal authority area with an additional 24 sub-villages. While the Baphokeng have lived in this region since time immemorial, for modern purposes, one can start at the time of Sekethe III, who was the first of the line of Baphokeng Makwene Paramount Chiefs of which Chief Lebona Moloklehle is the 14th.

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Sekethe ruled from about the year 1700."

We start here very briefly - there is an anecdote from oral history which is worth repeating.

"During the reign of Sekethe's son,

Diali, incidentally, around 1750, the Baphokeng came into conflict with the Barutsi. The Barutsi who considered themselves senior to the Baphokeng would come to the area annually to castrate the bulls belonging to the tribe. They would select the best young bulls for themselves, leave a few for stud purposes and castrate the rest. This custom was carried out under protest from the Baphokeng, and it is said that it was carried out in order to insult them. One year Diali's four sons gathered with spectators to watch this custom. And each one of them had a spear hidden under his karos. At a given sign they attacked the Barutsi and killed them almost to a man. Barutsi declared war on the Baphokeng and a decisive battle was fought on a mountain pass. The Baphokeng emerged as victors and ended the Barutsi's attempt at dominance.

Today there is a pile of stones which is 16 metres by 4 metres high in the pass. Passers-by are required to drop a stone in memory of those who fell.

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The previous chief of the Baphokeng was Chief Lebona Edward Molekhle who was quite publicly opposed to the homeland independence, as we know died last year. The conflict and animosity between the tribe and the Bophuthatswana Government dates back to this time. The conflict has many facets to it, not least of which is the conflict over resources. The Baphokeng had title to their land since 1883 and this land is situated on the Morenski Reef, which is where 80% of the world's platinum is mined. The platinum mining contributed around 45% of the gross domestic product in Bophuthatswana and the Baphokeng receives approximately R75 million annually in royalties from Impala Platinum as a 16% royalty payment. Between 1970 and 1990 close to 1 billion has been paid by Impala Platinum to Bophuthatswana in tax, mining leases and royalty payments. In addition it pays approximately R465 million each year in wages and benefits to its employees."

I should add that a large percentage of these employees are from Baphokeng.

"Under independence the head of the previous Bophuthatswana Government inherited from the South African Government the position of trustee of the Baphokeng lands and mineral rights."

This is very, very important for this application.

"As trustee he was entitled, amongst

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other things, to scrutinise the

financial records of the mine. A right which was not accorded to the tribe, the rightful owners of the land. This dispute has been the subject of many court applications over many years and served to aggravate the political conflict between the tribe and the previous Bophuthatswana Government. In all court disputes the president of Bophuthatswana sided with Impala Platinum, which as the tribe's attorney, James Sutherland said at the time, was extraordinary; as trustee he should co-operate and litigate on behalf of the Baphokeng, instead he sided with the mine.

Chief Molekhehle insistently refused to take up the seat to which he was entitled in the homeland legislative assembly, and also refused to raise the Bophuthatswana flag at the tribal offices. In 1983 the Baphokeng attempted to secede in accordance with section 82 of the Bophuthatswana Constitution, by passing a tribal resolution. In response to this the president of Bophuthatswana visited Phokeng in May 1983 and told the tribe that their letter, which was sent to him, is a dream. I have also come to

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tell you, he said, you must trek; I say

vacate. I am going to conduct a commission of inquiry here and I want you to know that from now on we are going to declare a state of emergency in Phokeng. This was proclaimed on the 9th of May 1983, and back-dated to the 6th of May."

I am not going to read the content of the emergency regulations.

"The commission of inquiry, the results of which were never published, was intended to determine, amongst other things, whether or not Chief Molekhehle was the rightful chief. However, the then president of Bophuthatswana did return to Phokeng in April 1984, to tell the tribe ..."

And I must quote again, because it is in a statement which had consequences -

"... let me tell you it will never happen. No matter what you may do, you will never secede from Bophuthatswana and be independent. That will never happen. We will deal with you as we deem fit.

There was a steady deterioration from then on in relations between the tribe and the chief and the president of Bophuthatswana.

In 1987, during a meeting between the

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chief, his wife and all 70 headmen, the

president of Bophuthatswana said to the chief, you are a little infected finger which was affected by disease and must be cut away. He said that to the chief. On February 10 1988, an attempted coup took place in Mmbatho which was led by a person who was the leader of the Progressive People's Party and who also happened to be a member of the Baphokeng tribe, Rocky Malabane Mtsing. The coup which was lasted 15 hours, was summarily stopped in its tracks by the South African Government. The South African Defence Force entered the city, paratroopers staged a dramatic rescue of the president and his colleagues, who had been held in Mmbatho, in the Independent Stadium. The military force was backed up by a very public show of political support. PW Botha was present, various other dignitaries, Magnus Malan and Minister Adriaan Vlok. That evening, after the coup had been crushed, the then President of South Africa announced well, we have had these problems, but we are back in control, and then he corrected himself and said the President of Bophuthatswana is in full control. The reaction of the coup throughout the

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country had been one of celebration and

jubilation. Somewhat premature, as it turned out. In Phokeng, Winterveld, Odimoritele, Unibo and elsewhere, people sang freedom songs, they toyi-toyed and they celebrated the downfall of the government. The retributive clamp-down that followed was swift and severe. In Phokeng itself the chief and his wife with several members of the tribe were detained without charge on suspicion that they had been involved in the coup attempt. The chief was accused, during his interrogation, of being an executive member of the PPP, by giving Mtsing money for the coup and of using Mtsing as a front for a society of chiefs who wished to oust the then President of Bophuthatswana. The suspicion of his involvement in the coup was never proved and was based on a somewhat flimsy premise that because the PPP which had led the coup had won all five seats in the 1987 election. The chief and those in authority had been involved in the coup. No evidence to this effect has ever been produced.

Following the coup the perpetrators were charged in the Supreme Court of Bophuthatswana and they were convicted. In addition, the commission of inquiry

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was appointed to investigate the

involvement of the PPP in the coup, which resulted in the party being declared a banned organisation in terms of the Internal Security Act. At no time, during either the trial of the participants in the coup or during the commission, was the chief, his wife or other detainees from the tribe ever mentioned. Despite this, the harassment of the chief, of his wife, Mrs Molokegle and other members of the tribe continued unabated.

Soon after his release from detention Chief Molokegle arrived at his home on the 18th of March and saw between 20 and 25 police vehicles in the driveway. He decided to drive through the yard and exit. He was able to do this undetected, as he was in a Kombi at the time and none of the policemen realised it was the chief. He then left the country and went into exile in Botswana. Before leaving he appointed his Longwana, Mr Cecil Timochole, then a deputy chief as acting chief during his absence. This was a decision supported unanimously by his headmen.

The continuing harassment of the tribe took many forms, but it is worth here looking briefly at the harassment of Mrs Moloklegle and the Baphokeng Women's Club in particular.

From the time of the coup until mid July

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1988 Mrs Mologlegle was questioned and/or her home was searched by members of the

police and army, a total of 16 times. Her phone was cut off. The organisation which she headed, the Baphokeng Women's Club was banned in terms of the Internal Security Act. When a successful court application had the ban overturned the President of Bophuthatswana in his capacity as Minister of Law and Order, then proclaimed the club an illegal organisation. The harassment culminated in Mrs Moloklegle residence permit being revoked, despite the fact that she had been living in the area for 28 years. In addition all meetings of the Baphokeng tribal authority and the tribal council were banned. These events made it increasingly difficult for the tribe to emerge and co-ordinate their affairs.

Despite the fact that Chief Moloklegle had appointed Cecil Mpumigole as acting chief and despite the fact that brothers are not supposed to stand as regents for absent chiefs, the President of Bophuthatswana unilaterally appointed the chief's brother, George Moloklegle into this position. This was fiercely opposed by the tribe. In a letter from the tribe, on the 10th of July 1990, to

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the then President of South Africa, it was stated his absence over the past two

years has left the tribe without their chosen and respected chief, and President Mangope has seized the advantage created by this vacuum and appointed in his stead the chief's brother, who acts in accordance with the government's behest and not in a manner which enjoys the support or respect of the tribe.

With the appointment of a sympathetic acting chief, the President of Bophuthatswana also ensured that persons sympathetic to him occupied positions of power within the tribal council. Among other appointments was that of Glad Mokgatle as the chairperson of the tribal council.

From 1980 onwards the tribe made repeated attempts to resolve the conflict with the President of Bophuthatswana and to ensure the safe return of Chief Lebona Molokegle. These attempts were met without exception with rebuff, harassment and repeated detentions. On the 4th of April 1990 the tribe wrote to the President of Bophuthatswana, requesting an appointment to discuss the leadership of the Baphokeng. All the signatories to

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this letter were picked up at their homes in the early hours of the morning and

taken to Mmabatho on the instructions of the president.

The President of Bophuthatswana continually threatened to detain Chief Molokegle if he returned to the region. This threat was made to the entire tribe when the President of Bophuthatswana addressed a meeting in Phokeng on June the 25th 1990.

The President of Bophuthatswana refused to meet the tribe unless the request for a meeting came through the acting chief. When the representatives failed to secure a meeting with the President, they, despite the fact that the acting chief, was in their view, part of the problem, wrote to George Molokegle requesting a meeting. The response to this on June the 9th 1990, was the arrest and detention of 20 persons who were associated with the request. Such detentions also included Mrs Molokegle's typist who happened to be five months present at the time, merely on the suspicion of having typed the letter. On the 15th of June another letter was written, calling for the resignation of the acting chief. This letter was signed by about 1 000 members of the

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tribe. It was then delivered by approximately

1 000 people to the civic centre.

Letters were also written to the then President of South Africa, President De Klerk, and to the Minister of Foreign Affairs, Minister Pik Botha, but to no avail. In the letter to Mr De Klerk the tribal representatives voiced their concern over the level of tension in the region."

Mr Chairperson, it is important that one is aware of the extent to which these representations were made.

"It has become clear that our efforts to achieve any proper resolution of this problem through dialogue with the Bophuthatswana Government are fruitless. Feelings amongst the Baphokeng community have reached a very high level of tension and anger. This was made manifest when Pres Mangope was loudly booed by the community when he recently addressed them."

That is to quote from the letter -

"It must be clear here that these events were taking place during 1990, a momentous year, the year of change throughout South Africa, not least of which was the unbanning of the African National Congress, the PAC as well as the release of imprisoned leaders, including our present President, Mr

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Nelson Mandela.

These events appeared to harden the attitude of the Bophuthatswana Government, which had become increasingly resistant to change, and to threats to powers.

Hundreds of thousands of people in Bophuthatswana, including many members of the Baphokeng tribe had joined the ANC upon its unbanning.

In an article by Dennis Beckett - at the time the article was entitled The Tribe that Lost its Chief. Reference is made to this. He wrote:

`In the vicinity of Sumani Mokgatle's palace it is nothing unusual to see people wearing ANC T-shirts. In the eyes of much of Bophuthatswana officialdom, the green, yellow and black insignia is a red rag to a bull.

In Phokeng itself a Press statement released following the June detentions, the tribe said the following: One cannot overlook the events and profound changes that have and are continuing to take place in Southern Africa. In expressing the wish of the Baphokeng tribe to meet with the President of

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South Africa, to voice the

dissatisfaction of the tribe and the government of Bophuthatswana. The delegation was doing nothing more than seeking to join the rest of South Africa's black communities in achieving a unitary state in which everyone would have equal rights.

Political tensions and conflict were increasing throughout Bophuthatswana during this period. In an interview in March 1990 Mr Walter Sisulu described the unrest in Bophuthatswana as a popular revolt against repressive dictatorship. He went on to say `we in the ANC have welcomed this popular rejection of undemocratic tyrannies which have been imposed on our people. Our people were never consulted on the Bantustan system'. The acting chief in Phokeng and the chairperson of the tribal council despite the ever-increasing tension within the community, attempted to convene meetings of the headmen. When most of the headmen refused to attend such meetings they were fined. When they refused to pay these fines they were arrested and charged. The chairman of the tribal council, Mr Glad Mokgatle became increasingly unpopular and as a member

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of the tribe himself, his actions and

those of other supporters of the Bophuthatswana Government were viewed as traitorous and disloyal to the chief. Mr Mokgatli was increasingly viewed as nothing more than an instrument of the previous government and viewed as illegitimate.

On the 29th of December 1990 a meeting of the Phiris, all the active men of the tribe between the ages of 18 and 65, was held at the Roman Catholic Church. At this meeting various issues were discussed relating to the chief and the ongoing administration. The meeting was informed that the chief could still not return out of fear for his safety, and that his health was deteriorating. The meeting resolved that those representing the Bophuthatswana Government in Phokeng, those persons working under Glad Mokgatle, at the civic centre, should not longer be allowed to handle the affairs of the tribe. They were regarded as illegitimate and questions were being asked about their role in the theft of money from the tribe. It was resolved therefore that the Phiris would go to the civic centre to regain control over their own affairs and they would obtain the keys to the building for this

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purpose."

I will not deal with the rest of this submission at this stage, because it then moves into the actual events and the actual circumstances of the representations which were made and the incident which gave rise to the murder around which application revolves.

I now would need to call three witnesses, who will be testifying to specific issues within this document and elaborating on some of those issues. We would request, if it is possible, a five-minute adjournment just to get our witnesses in line. They are within the community. The applicants are sitting there. The witnesses are available. I have not seen them, I can't see them at this moment, but it would be opportune just to organise them and to agree on the order in which we call them.

In conclusion, I would just like to thank you for your indulgence in allowing me to place this background paper on record. We believe that it is very important that it was placed on record. I thank you, Sir.

JUDGE MALL: Before we adjourn, will those who assist us in organising this meeting, ensure that as many people as possible receive head-phones so that they can hear the evidence that is going to be given by the witnesses. We will now adjourn for a short while to enable counsel to martial his witnesses.

HEARING ADJOURNS

TAPE 2 - SIDE B

............................

....... There was a lot of violence in Phokeng and the state of emergency was still in place at that time. Since then I have been arrested eight times under the State of Emergency Act. The Bophuthatswana police would come to my home and harass my parents and the people with whom I stayed.

In 1990 it was in June, on the 5th of June, we were arrested together with Chief Mokgatle's son. There were five of us. I am referring to the person who is now the chief of the Baphokeng. We were arrested together with him and we were taken to Thabani police station. We were interrogated there and at that time we didn't understand what was happening. And we were told that we have bombed a house belonging to one of Mr Mangope's members. They said it was me and Mr Molokegle. Because of lack of evidence they said no, we have bombed a house that belongs to Chief Mangope's supporter, and we were released.

On the 29th of December in 1990 we met together as the Phiris. There was a meeting at the Roman Catholic Church. We came together as Baphokeng and the meeting was actually about the information that our king or our chief will never come alive back to Baphokeng, and we were told that those words were taken out by Mr Glad Mokgatle. Seeing that I was one member of the action committee, this issue didn't satisfy us at all. And we decided that as the Baphokeng - I must indicate that the building that we are sitting in today caused all these problems. Even the people who are Mr Mangope's supporters wanted to do anything they want in our tribe.

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We realised that it would be better to get the keys from Mr Billy Ramoresi, who was the secretary of the Baphokeng tribe. We left as a group and we went to Mr Billy Ramoresi's house and we found him at his place. We were surprised to see police there and we demanded to speak to Mr Ramoresi because he is Baphokeng and we are also the Baphokeng and the police started harassing us. They shot at us with rubber bullets and they were throwing tear gas at us. We ran away. We ran and dispersed, but luckily we managed to meet again but this time we met at Legato. We were 10 in number. The 10 of us were members of the action committee. Five of the members were from Johannesburg branch of the Baphokeng and the other five were members of Baphokeng action crime, based at Phokeng.

We agreed that seeing that we haven't received the keys during the time we needed them we would now go back to Mr Mokgatle to get the keys, because he was now the chairman elected by Mr Mangope.

We decided to go and see Mr Mokgatle and we were told that he is not at his residence, he went to see his girlfriend at Tchaneng. We left in a Kombi. The Kombi was belonging to one of the action committee members from the Johannesburg branch and we went to Tchaneng.

On our arrival we knocked and we found that woman called the girlfriend. Then we asked her where is Mr Glad Mokgatle. Mr Mokgatle came from the bedroom and he had a panga in his hand. It was sharpened on both sides. If I have to give the measurement it would be twice the size of my hand. Four of us went into the house and the others were remaining outside.

One of us, the deceased, Mr Mgopani, was at the corner. PHOKENG HEARING AMNESTY/GAUTENG

Mr Mokgatle wanted to attack Musi with his panga. Because I was close to him, I managed to jump and stopped the panga with my hand and it chopped my hand, but at least I have already saved Mr Mgopani's life. I took the panga. Because the people who were with me by that time were now angry. They gave him a few claps and they took him with them.

We locked him in the Kombi and we drove off with him. We asked him where are the civic centre's keys, because we want to lock it up. We told him that the tribe was crying, the tribe was complaining about his administration, we want the keys back. He said he doesn't know anything about the keys. We told him not to lie because he is a councillor elected by President Mangope. We told him that we wanted the keys from him because he has to know where the keys are. He didn't co-operate and we saw it necessary to take him hostage.

It was our intention to keep this man hostage until President Mangope listened to us. We told ourselves that we are going to hold him as a hostage until we get the keys. They decided we should drop him off there and some of the members said no, let us just kill him. Others said no, can we keep him hostage. You know that in a large group people get emotional and you cannot stop them, and it happened that they attacked him. I must say I was one of those people who attacked him, because I was already emotional, because he didn't want to listen to our issue, we wanted the keys. Most unfortunately we lost our temper, we hit him until he died. We got into the Kombi and we drove off. We went to our different homes and that was the end of the story. Our aim was actually to hold Mogale hostage so that Mr PHOKENG HEARING AMNESTY/GAUTENG

Mangope can realise that we were serious about our demands. We wanted our chief to come back home, that was the first thing we wanted from Mr Mangope, we wanted the state of emergency to be eradicated because we wanted the Bophuthatswana Government to be dismantled because it was oppressing the people. There was no progress among the people out there. (Applause).

MR CURRIN: Thank you for that. You were a member of the action committee. We heard previously, from a previous witness that action committee members were elected. Were you elected to that position?

MR DIALE: Yes, I was elected by the tribe.

MR CURRIN: At the time of this incident, which you have described to us, what was the relationship between the action committee and the liberation movements?

MR DIALE: We were the members of the action committee at Phokeng and we found it very important to relate with other political organisations, because we were fighting against the Bophuthatswana Government. We saw it as important, because they had been long in the struggle and they would be in a position to give us guidelines, as to how to approach the struggle, because we wanted to reinstate our chief.

MR CURRIN: Were you part of the African National Congress?

MR DIALE: Yes, I was already a member of the African National Congress.

MR CURRIN: In your mind, according to your information, did the attack and the murder meet with the approval of the African National Congress?

MR DIALE: I have to say the African National Congress had a concern, they agreed with us.

MR CURRIN: Did anybody from the ... (intervention).

PHOKENG HEARING AMNESTY/GAUTENG

JUDGE MALL: Just hold on. Were the African National

Congress aware of the fact that this man was killed?

MR DIALE: Because we were working together with them at the time, as an action committee, they knew that the man had been killed.

MR CURRIN: Did anybody from the African National Congress ever speak to you about this particular incident, and if so, who is that person and what did that person say?

MR DIALE: A person came to us, after we have been arrested, he was from the African National Congress, and he was the chairman of the African National Congress, in our Rustenburg branch. His name was Isaac Mokgatle.

MR CURRIN: And what did he say to you?

MR DIALE: He asked us whether we are the people who killed Mokgatle and wee told him yes, we killed him. He said to us this is the beginning of the struggle.

MR CURRIN: What was your understanding of the policy of the African National Congress with regard to the leaders of the homelands and their colleagues?

MR DIALE: Can you please repeat the question?

MR CURRIN: What was your understanding of the policy of the African National Congress with regard to how - with regard to leadership of the homelands? What was the African National Congress' policy, what should be done about the leadership at the different levels?

MR DIALE: When we met with them in the meetings, they used to tell us that they don't recognise the Bantustans at all. And they said the Bantustans should be demolished.

MR CURRIN: Did you ever hear the leadership of the African National Congress call for the destruction and the killing of so-called collaborators?

PHOKENG HEARING AMNESTY/GAUTENG

MR DIALE: In all the meetings that I have attended, you

know, because of the struggle that we find ourselves in, they told us that it is important to eradicate the collaborators so that things can be clear in our township and in the whole country.

JUDGE WILSON: Well, can you tell me, did you intend to eradicate this man? Did you go there intending to kill him? You were being asked about the policy in this regard.

MR DIALE: It wasn't my intention to go and kill this man. We wanted to kidnap him so that he can give us the keys of the civic centre.

JUDGE WILSON: And that had nothing to do with ANC policy, that was your own plan. Is that not so?

MR DIALE: I can't say this didn't have any relation with the ANC, because we were working hand-in-hand with them.

MR CURRIN: Just in relation to the question that was put to you, what in your view, in the workings that you did with the African National Congress, was the attitude of the African National Congress with regard to the control of this centre by the Government of Bophuthatswana?

MR DIALE: According to what I have realised, their intentions were that we should eradicate the Bantustans. And they wanted everybody to be incorporated into South Africa.

MR CURRIN: I would like to take you back to the question about your intention at the time. It is quite clear from the judgment on sentence which we have read, and also from your evidence, that it was not in fact your intention to kill Glad Mokgatle on that particular day. Is that correct?

MR DIALE: Yes, that's correct. Because we found ourselves guilty, we pleaded guilty before the court of law.

PHOKENG HEARING AMNESTY/GAUTENG

MR CURRIN: When things began to go wrong, you spoke about

the crowd, you spoke about anger and frustration. Could you please share with us what you were thinking at the time. It is important.

MR DIALE: The thing that concerned me, that troubled me a lot, was the fact that our chief was sick and during that time he was in exile. We needed him so much, we wanted him to be back on his seat. The second point, we wanted the Bophuthatswana Government to be dismantled. The third thing, as the Baphokeng tribe, we wanted to go back to South Africa. We wanted to be reincorporated into South Africa, because of the oppression we experienced with the Bophuthatswana Government.

MR CURRIN: I would like to rephrase my question. When the line of events which ended in the death of Glad Mokgatle commenced, there was no intention to kill him. We understand that. You sought the keys, you did not get them. He was then taken hostage. Even at that stage there was no intention to kill him. At some stage something went wrong, and as I said there was anger, there was frustration. There were all the factors which we have heard about today, that you were experiencing within you as a person. When things went wrong and he was physically attacked and you participated in that attack, can you recall what you were thinking, as to why you were actually doing this?

MR DIALE: When we attacked Mr Glad, we wanted the Bophuthatswana Government to realise, we wanted South Africa to realise, that we don't want the Bophuthatswana Government. That is the reason that forced me to take part in the assault of Mr Mokgatle. We wanted Mr Mangope to realise how serious we were about the returning of our

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chief. We wanted to tell him that we don't want this government any more.

MR CURRIN: You are saying that that is what was going through your mind at the time?

MR DIALE: Yes, that is correct.

MR CURRIN: Could I just consult with my colleague for a moment before I proceed?

JUDGE MALL: Go ahead.

MR CURRIN: Thank you.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: Any questions?

CROSS-EXAMINATION BY MR MPSHE: Yes, Mr Chairman. Mr Diale, you testified that you went to look for Mr Glad Mokgatle and found him where you did find him. Now at that moment when you were looking for him, and ultimately causing his death, was the action committee, at that time, pushing any political objective, by so doing?

MR DIALE: Yes, it is like that, M'Lord.

MR MPSHE: How do you then associate or link your action on Mr Glad Mokgatle to a political objective you were pursuing, if any?

MR DIALE: Sir, as I have explained we left here as an action committee, going to liberation movements. We met them. They are the people who guided us what to do, because we did not have experience in politics. Therefore, Mr Glad Mokgatle's linkage with politics is that he was taken by Chief Mangope, the President of BOP. He put him in our tribal affairs. Whereas President Mangope, he was the leader of a party, he is a politician. A politican was able to interfere in our tribal issues and this taught us to stand up and look for help from people who are busy with

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politics and are political figures. That's how we link Mr

Glad with politics.

JUDGE MGOEPE: This committee that you took part in the attack on Mr Glad Mokgatle, will you please tell the Committee further, how did you take part? What actually did you do?

MR DIALE: My part, I was one of them. At that time we did not have weapons that can kill, except for the panga that was removed from Mr Glad. I used my fists and shoes on him.

MR MPSHE: Were you - let me put it this way. Will you agree with me that at that stage Mr Glad Mokgatle was perhaps even twice your age?

MR DIALE: Yes, it is like that, Sir.

MR MPSHE: Were you aware of his age perhaps?

MR DIALE: His age I got to know much later, I didn't know his age. I just knew that he was an elder person. I did not know his age. I knew his age during the trial.

MR MPSHE: Could you just be open with this Committee, and tell the Committee as to how you felt when attacking Mr Glad Mokgatle?

MR DIALE: Just as I have already explained, feelings were running very high, and these issues were already in our blood. We felt very hurt at the departure of our chief into exile. I saw that it was better for me to see it that Mr Glad Mokgatle is removed from us, and from my face, because I thought if he was removed from my face things would return to normal. President Mangope would see how serious we are in our demand to have our chief back.

MR MPSHE: What happened to Glad Mokgatle after the assault on him? You only testified that you got into your Kombi and left. You did not tell the Committee what happened, whether PHOKENG HEARING AMNESTY/GAUTENG

he left in there and you took him along. What happened to

him?

MR DIALE: Mr Mokgatle was left at that spot where he was attacked.

MR MPSHE: Where was this?

MR DIALE: It was between Rooikraal and Luga.

MR MPSHE: Did you leave him in an open veld?

MR DIALE: It was just in the open veld, alongside the road.

MR MPSHE: Will I be right if I say that you knew who his children were then? You knew the members of his family?

MR DIALE: Yes, I knew them.

MR MPSHE: Now going back to the statement you made when answering a question about you having intention to kill him, and you said you did not have the intention. Did you perhaps after causing his death think of informing his relatives or family members?

MR DIALE: As I have already indicated, that we were so emotionally touched, and then we wanted to send a message to the Bophuthatswana Government about our seriousness. We didn't have any chance to go and inform his family that we have killed him. And we were also scared that we would be arrested.

MR MPSHE: We have listened to evidence that the chairperson of the action committee was Lawrence Kgosane. Is that correct?

MR DIALE: Yes, that's correct.

MR MPSHE: Was Mr Lawrence Kgosane also present on the day when Mr Glad Mokgatle was murdered?

MR DIALE: No, he was not there. I have already indicated that it was five of the Johannesburg branch of the action committee and five members of Phokeng branch. He wasn't

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there during that time.

MR MPSHE: Was it as the chairperson of the action committee, did he sanction the deed?

MR DIALE: He was not present during the killing and we never met him at all.

MR MPSHE: If I say that you acted on your own without the knowledge nor consent of the chairperson, Mr Kgosane?

MR DIALE: I think we were forming a quorum and we took the right decision.

MR MPSHE: Then as a controller of the action committee, let alone the quorum part of it, but the chairperson.

MR DIALE: There was the deputy chairperson. You know, if the chairperson is not there, there will always be the deputy chairperson. The deputy was there, and he was Musi Bogopani.

MR MPSHE: Did you know as to whether Mr Lawrence Kgosane knew of your intention to demand keys or kidnap Mr Glad Mokgatle?

MR DIALE: I have to say he knew because he was present at the Phiri meeting. That was during the time that the Phiri held their meeting.

MR MPSHE: Mr Diale, did the action committee align itself with the policy of the ANC, and if yes, what policy in particular?

MR DIALE: The action committee aligned itself with the ANC because we didn't want Bantustans.

MR MPSHE: You aligned yourself with, was the fact that Bantustans were not wanted, full stop. Is that all?

MR DIALE: Yes, it is correct, Sir, but it is not the only one. We were in the Rustenburg branch. Some of the members of the ANC are part and parcel of the Baphokeng

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tribe and they also wanted their chief to come back to his

tribe.

MR MPSHE: Mr Diale, you testified that the ANC approved of the murder. Do you remember that?

MR DIALE: Yes, it is like that.

MR MPSHE: Now does the approval of the ANC include or exclude the tribe of the Baphokeng?

MR DIALE: I can't say this approval includes the tribe or that it doesn't include it. It was the action committee that was elected by the tribe and the African National Congress ...

(TAPE CUTS OUT HERE - CONTINUES ...)

TAPE 3 - SIDE 1 - (BEGINNING)

MR DIALE: Yes, it is like that.

MR MPSHE: Had the tribe at any stage been told of the intended kidnapping of Glad Mokgatle?

MR DIALE: As I have already indicated, sir, that we met that morning as the Phiri from Baphokeng tribe. As Phiris we are the tribe, and then we took the decision as the Phiris when we met that morning.

MR MPSHE: Mr Diale, did the Phiri represent the Government of the Baphokeng?

MR DIALE: The Phiris is just part of the Baphokeng tribe. And on that day they met, their ages ranged between 18 and 65 years. We call them the Phiri. I have to say they are half the population of the Bahpokeng tribe. Those are elders of the Baphokeng tribe.

MR MPSHE: I am speaking under correction, Mr Diale, but would I be wrong if I state that these people called the Phiris, their duties, amongst others, may be referred to as

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grave-diggers?

MR DIALE: Yes, that's correct, sir.

MR MPSHE: What duties do they have as the Phiris other than digging graves?

MR DIALE: I have just said that the Phiri is almost half the population of Baphokeng. They are men. As I have said that their ages range between 18 and 65 years of age. Sir, a 65-year old man cannot dig graves. He is very old. If I say the Phiri range between 18 and 65, I am referring to the people that are responsible for anything that happens within the tribe of the Baphokeng.

MR MPSHE: Phiris call a tribal meeting what people refer to as Xhoto-Xhoto and decide and take resolutions for the tribe. Can they do that?

MR DIALE: Yes, that's right, they can.

MR MPSHE: Didn't we hear evidence by yourself to the effect that the only person who may call a tribal meeting, a Xhoto-Xhoto, is the chief who is the chairperson of the tribal council? Was that not your evidence?

MR DIALE: I want to answer that question, even if that is not my say, it was from my chairperson, but I can give an answer to that. During the meeting - the chairman of the Phiri called that meeting. He had been left or he had been elected by the chief to be the council for the Baphokeng tribe. I am referring to Mr Dumagole. He was the chairman by then and he was representing the chief.

MR MPSHE: Now you have sketched out to this Committee the events that day that led to the death of Mr Glad Mokgatle. Did the ANC in any manner or in any fashion sanction the events that led to his death?

MR DIALE: Can the question please be repeated?

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MR MPSHE: The events that led to the death of Glad Mokgatle. Now my question is: did the ANC then sanction or approve of what you people did, leading to the death of Glad Mokgatle?

MR DIALE: I can't say they sanctioned that, because after Mr Mokgatle's death, we never met the ANC, we didn't have an opportunity to meet them. We only met as individuals and we didn't discuss the matter.

MR MPSHE: Maybe I didn't make myself clear. My question is actually this, that prior to these events that led to the death of Glad Mokgatle, did the ANC approve their role?

MR DIALE: Yes, it is like that, sir. I don't understand the question.

MR MPSHE: If ...

MR DIALE: I didn't understand the question maybe.

JUDGE MALL: I am not so sure whether that question is fair to the witness. It is very broad and you may have to be more specific. (Applause). Otherwise I don't think it is fair to the witness.

MR MPSHE: I will repeat that question perhaps differently. Did the action committee before going out and looking for Mr Glad Mokgatle, did the action committee meet with perhaps the ANC or members of the ANC whereat the taking hostage of Mr Mokgatle was discussed?

MR DIALE: No, Sir.

MR MPSHE: Would I be correct if I say this, that the action committee's action was a decision of the action committee itself and no other external force like the ANC?

MR DIALE: Yes, it is like that, sir.

MR MPSHE: You stated in your evidence, Mr Diale, that after the event a certain Isaac Mokgatle approached you as an ANC

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chairperson. Do you remember that?

MR DIALE: Yes, I do.

MR MPSHE: If you know, is there any relationship between this Isaac Mokgatle and Glad Mokgatle?

MR DIALE: I don't know, Sir.

MR MPSHE: But it is a coincidence of surnames?

MR DIALE: I cannot say, I don't know.

MR MPSHE: When led by my learned friend you testified that during the attack of Glad Mokgatle, you wanted the BOP Government to be out and you wanted to show the world that the BOP Government was unwanted. Do you remember that?

MR DIALE: It is like that, Sir.

MR MPSHE: Was Glad Mokgatle seen as the BOP Government?

MR DIALE: Yes, it is like that because he was installed by the president of Bophuthatswana.

MR MPSHE: No further questions, Mr Chairman, thank you.

NO FURTHER QUESTIONS BY MR MPSHE

JUDGE MALL: I understand your evidence to mean that you yourself did not know that Glad Mokgatle was going to be killed on that day, that it just happened.

MR DIALE: Yes, that's correct.

JUDGE MALL: So neither the action committee nor the ANC knew beforehand that on that day Glad Mokgatle was going to be killed?

MR DIALE: Yes, that's correct.

JUDGE MGOEPE: Mr Diale, if I may ask you this personal question. Up to what standard have you attended school?

MR DIALE: I did Std 10.

JUDGE MGOEPE: In the Phokeng area?

MR DIALE: Yes, I attended school here.

JUDGE MGOEPE: A great deal of reference has been made since

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this morning to the struggle about the - the struggle around, shall I say the position of occupation or control, in fact, of this building. Before I come to that, for purposes of the record, by the way, by this building, we mean the - this building is the Baphokeng civic centre. Am I right? Is somebody interpreting for you or ...

MR DIALE: Yes, it is like that.

JUDGE MGOEPE: I believe it has been built by the tribe and it is the property of the tribe. Am I right?

MR DIALE: Yes, it is like that.

JUDGE MGOEPE: Does this building in some way, is it a symbol of power? In other words, if I may explain to you what I mean, anybody having control to it, like having the keys and controlling access into it, does it mean a lot to the people?

MR DIALE: Yes, we have explained, this building belongs to the tribe. Any person who holds the keys to the building is the person who works hand in hand with the council in connection with the building. He or she cannot do as he or she pleases without the council.

JUDGE MGOEPE: So the fact that the keys to this building were in possession of the one or the other person, was it of importance?

MR DIALE: The keys, because we knew that they were in this gentleman's possession. The chairman installed by Mr Mangope. We could get everything from him. He was the only person who was doing everything in the tribe, even the keys were in his possession or his secretary.

JUDGE MGOEPE: Mr Diale, your legal representative, Mr Currin, sought to indicate to you, before this Committee could consider granting amnesty to anybody, that person has

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got to take the Committee into its full confidence and to open up and say all that needs to be said, so that we should be able to have a full picture of the degree and nature of your participation in the offence in respect of which you seek amnesty. I don't think I have a clear picture of the nature and extent of your participation. That is very vital. Just what part did you personally play? I am referring to the actual assault of the deceased which led to his death. We need to know that.

MR DIALE: As I have already mentioned, that I was one of the people who attacked and our attack led to Mr Mokgatle's death. The reasons why I took part are the following. Because I was emotional. I indicated that my chief was taken into exile. That is the first reason. I wanted my chief to be put back to his right place. The second reason, I wanted the Bophuthatswana Government to be dismantled and the third reason, by killing Mr Mokgatle our struggle would continue, because there was already a conflict between ourselves as 10 members of the committee. Others said let us hold him hostage and the others said let us attack him, and we decided it would be better to sweep him off. And we decided that if our struggle continues it would be a very good struggle and we wanted our chief to be back.

JUDGE MGOEPE: But I don't think, it may be that the question was not put across to you, as I put it. My question was not why you assaulted him. My question was how did you assault him. What did you do? We need to know that. Did you chop him with a panga? Then go and pick up a stone and hit him on his head and he tried to run, you tripped him and then held him down and so on, et cetera? These are, however unpleasant it may be for you to say that,

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I'm afraid this is what should be done.

MR DIALE: If it is a request from the Committee, I will have to state it clearly. I kicked him and I hit him with my fists and I strangle his neck. That's the part I took in the killing.

JUDGE MGOEPE: Did he plead for his life at any stage?

MR DIALE: While I was kicking him and he wasn't bleeding at all.

JUDGE MGOEPE: Oh, I'm sorry, I meant to say, did he plead for his life, not bleed, plead for his life at any stage?

MR DIALE: The only word that I could hear he said "I know you, I know you guys who are doing these things".

ADV DE JAGER: Sir, you told us that you had no attention to kill the deceased. Is that correct?

MR DIALE: It is like that, Sir.

ADV DE JAGER: And during the journey you became very angry and everybody became very angry. Is that correct?

MR DIALE: It is like that, it is correct.

ADV DE JAGER: Now I am accepting that you had no intention to kill the deceased. When did you form that intention or did you act emotionally in killing him?

MR DIALE: What made us to become emotional, was when Mr Mokgatle came out armed with a panga and he was aggressive and this made us become very emotional.

ADV DE JAGER: Yes, but at that stage you still only wanted to take him as hostage, not to kill him.

MR DIALE: Yes, the intention was to hold him hostage, but when he took out a panga and threatened to attack one of us, we saw that he is no more co-operative. We also asked him about the case and he replied. This made us become very angry and emotional, and we were also surprised in becoming

PHOKENG HEARING AMNESTY/GAUTENG

aggressive.

ADV DE JAGER: Now so you took him to the Kombi and you drov off with him. When you put him in the Kombi, was it already with the intention to go and kill him or was it to take him hostage?

MR DIALE: It was our intention to hold him hostage, but unfortunately some of us in the Kombi, they were so angry that they took an action.

ADV DE JAGER: So did they kill him because they couldn't control their emotions and acted because of that, or did they at that stage intend to kill him?

MR DIALE: We didn't have any intention to kill him. We wanted to kidnap him, but because he didn't want to give us the keys and we were surprised to have changed our ideas so quickly and we just decided to sweep him off, to kill him.

ADV DE JAGER: So I want to put it to you, because I want to give you the opportunity to explain to us when you changed your intention, if you have changed it, or whether you acted out of pure frustration and emotion?

MR DIALE: When the Kombi stopped, that's when we changed our minds, because others were saying let him be killed and others said no, let us just keep him holding him hostage. Now the ones who were saying let him be killed, were more than those ones who were saying let us just keep him and then at the end we found ourselves agreeing together that he should be killed.

ADV DE JAGER: There was a decision then at a stage to kill him.

MR DIALE: It is like that, Sir.

ADV DE JAGER: And what was your - the reason for taking that decision?

PHOKENG HEARING AMNESTY/GAUTENG

MR DIALE: The main reason, we didn't want him to identify us. I think I have already indicated that the other reason was that we wanted the Bophuthatswana Government to realise that we want our chief back. Now so that they can see that we are serious about bringing our chief back, and we wanted them to remove the acting chief on the Baphokeng leadership.

ADV DE JAGER: Thank you, Mr Diale.

MS KHAMPEPE: Thank you, Mr Diale. Can you just bring us into the picture of the action committee. When did it actually come into existence?

MR DIALE: Chairman, the vice-chairman, secretary, vice-secretary, treasurer, others were additional members of the action committee.

MS KHAMPEPE: In the killing of Mr Mokgatle, were members of the action committee?

MR DIALE: Yes, that's correct, Madam.

MS KHAMPEPE: Thank you.

JUDGE WILSON: Mr Diale, do I understand you that the deceased said "I know you, I know you guys who are doing these things" to you?

MR DIALE: That's what he said.

JUDGE WILSON: Did he say this when he was in the Kombi?

MR DIALE: That's during the time we were busy assaulting him, that was outside the Kombi.

JUDGE WILSON: After you put him into the Kombi or after he had been in the Kombi? You took him away from a house and put him into the Kombi. You then took him out of the Kombi at a later stage when the Kombi stopped. Is that correct?

MR DIALE: We took him into the Kombi and we drove off. And then between Luga and Leeukraal we stopped the Kombi. We took him out of the Kombi and that is where we started

PHOKENG HEARING AMNESTY/GAUTENG

assaulting him.

JUDGE WILSON: He said he recognised you, he knew you.

MR DIALE: Yes, that's where he identified us.

JUDGE WILSON: Thank you.

JUDGE MALL: Any re-examination?

RE-EXAMINATION BY MR CURRIN: Yes, I have one or two questions, thank you. Could you explain to the Committee why you were afraid of being identified as a person who took the deceased hostage?

MR DIALE: Because at that time the police, the BOP police used to torture people. We were afraid we would be tortured and actually killed.

MR CURRIN: I have no further questions. Sorry, I do have one other question. That is in regard to Musi Mgopani, who was the vice chairperson of the action committee. Was he ever arrested and identified as a person who participated in this act?

MR DIALE: No, he was never arrested.

MR CURRIN: And where is he today?

MR DIALE: He is deceased, he passed away.

MR CURRIN: Is it known how he died?

MR DIALE: I don't have evidence, all I hear as I was in prison, I heard that he died in a car accident. That's all I heard during my stay in prison.

MR CURRIN: Is there anything in relation to disclosure of the events on that fateful day which you feel you haven't yet told us about? It is very important that you make full disclosures.

MR DIALE: Can you repeat the question?

MR CURRIN: As far in your own mind that you have told us everything that you could tell us about this particular

PHOKENG HEARING AMNESTY/GAUTENG

event, because it is important that you make full disclosure. If you do not make full disclosure then you may not be successful with your application.

MR DIALE: According to me all that I have said I think it is all that is to be said in relation to what I did on that day.

MR CURRIN: I have no further questions.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: How many of you that took part in the assault on the deceased, were tried?

MR DIALE: We were only two.

JUDGE MALL: Have you any idea why only two of you were tried?

MR DIALE: No, I don't have any knowledge. I don't know why only two appeared before the court.

JUDGE WILSON: According to the record that we have been supplied with there were four before the Court; Mokhali, Diale, Masilo and Makhala.

MR DIALE: Eight of us were arrested - there were ones who went to the Supreme Court. I didn't understand the question well. We started the case being eight. In the course of the case we were only three remaining. These three are the ones who eventually went to the Supreme Court.

JUDGE WILSON: It is correct, I think that only two of you were sentenced to a term of imprisonment. The third accused got a totally suspended sentence.

JUDGE MALL: Has that been interpreted to him?

MR DIALE: Yes, that's correct, only two of us were charged and one was suspended.

MR CURRIN: I do have another question. I do have another question if I may put it to the witness?

PHOKENG HEARING AMNESTY/GAUTENG

RE-EXAMINATION BY MR CURRIN: You said that 10 people were present when the attack took place. You told us that Muse Bagopani was never arrested. You told us also that eight people were arrested. There must be another person who was not arrested. And it is important that the Committee be given the name of that other person. If you require a short adjournment to discuss that with us, then we may ask for that, alternatively if you are able to answer that question, I think you should answer that.

MR DIALE: I am here before the Amnesty Committee and I am here asking for amnesty. The tenth person is Mr Bobo Manali.

MR CURRIN: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: Yes, Mr Mpshe?

FURTHER CROSS-EXAMINATION BY MR MPSHE: Thank you, Mr Chairman for the indulgence. Mr Diale, what do you hope to achieve by this application?

MR DIALE: Amnesty, Sir.

MR MPSHE: ... of any effect to you emotionally, in other words?

MR DIALE: I don't understand the question?

MR MPSHE: ... will it change your person, will it remove the bad past?

MR DIALE: Yes, I think the amnesty will do just that.

MR MPSHE: You want to be forgiven. By whom do you want to be forgiven?

MR DIALE: I want the deceased's family to forgive me about what I did. (Applause).

MR MPSHE: And if the family does forgive you, do you envisage or foresee some form of reconciliation between

PHOKENG HEARING AMNESTY/GAUTENG

yourself and them?

MR DIALE: Yes, we are one tribe. There will be reconciliation.

MR MPSHE: Do you align or associate yourself with the spirit of reconciliation?

MR DIALE: Yes, it is like that.

MR MPSHE: Mr Diale, assuming that you are granted amnesty, which would mean or could mean that you are released back into the community, how do you think that kind of amnesty and release, how do you think it would impact on the tribe? Do you think it would contribute towards a process of reconcilation? What impact do you think it will make on the tribe?

MR DIALE: I think reconciliation will be strengthened because what we did, even if it is not a pleasant matter, it will bring about a situation whereby all the people with whom we were not in agreement in the past, we will get together. We will build the tribe with a new spirit. (Applause).

JUDGE MALL: Very well, thank you very much.

MR DIALE: Thank you. (Applause).

MR CURRIN: Mr Chairman, and members of the Committee, there is an aspect of the test around which we would like to give the Committee clarity as to what we hope and what we intend to prove, and why I would just like to put that on the record, is because some of the questions that were asked, I believe were based on an assumption which is not our case. So with your permission, I would just like to say to you that after having consulted extensively with our clients and members of the tribal council and others, and action committee, we have a very clear picture of what we need or

PHOKENG HEARING AMNESTY/GAUTENG

what we are able to prove. I would just like to tell you what we are not able or are not going to be able to prove and what we are not setting out to do. I think that this will give some assistance to the members of the Committee with regards to the questions that are asked as far as approval is concerned, mandate, et cetera.

JUDGE MALL: Mr Currin, I would prefer that you call your witnesses and get done with all the witnesses that have to be called, and you will have ample opportunity to address us on these matters.

MR CURRIN: As it pleases the Committee.

We would like to now call the second applicant, Chris Mokgatle.

PHOKENG HEARING AMNESTY/GAUTENG

71 MR K C MOKGATLE

MR CURRIN CALLS

KINANCHIMA CHRISTOFFEL MOKGATLE: (Duly sworn, states).

EXAMINATION BY MR CURRIN: Mr Mokgatle, could you please give us your full names?

MR MOKGATLE: Kinanchima Christoffel Mokgatle.

MR CURRIN: You are one of the two applicants in this application for amnesty?

MR MOKGATLE: It is like that.

MR CURRIN: You were convicted and sentenced in relation to the murder which we have been discussing and which is the subject of this application. That is the murder of Glad Mokatle.

MR MOKGATLE: It is like that.

MR CURRIN: Could you tell us, before we proceed with that detail, where you were born?

MR MOKGATLE: I was born in Phokeng, in 1943.

MR CURRIN: And at the time of this particular incident, where were you living and where were you working?

MR MOKGATLE: At that time of the incident I was working in Johannesburg, in the Randburg Town Council.

MR CURRIN: Where were you living?

MR MOKGATLE: My family was in Phokeng.

MR CURRIN: Are you married?

MR MOKGATLE: Yes.

MR CURRIN: Do you have any children, and how many?

MR MOKGATLE: I have four children.

MR CURRIN: And what are their ages?

MR MOKGATLE: One was born in 1969, the second born in 1971, the third born in 1977 and the fourth born in 1989.

MR CURRIN: Were you a member of the action committee?

MR MOKGATLE: Yes, I was.

PHOKENG HEARING AMNESTY/GAUTENG

MR CURRIN: Were heard from the previous witness that there were action committee members living in Johannesburg as well as those that were living here. Were you one of the Johannesburg action committee members?

MR MOKGATLE: Yes, indeed.

MR CURRIN: Why were there action committee members in Johannesburg?

MR MOKGATLE: It is because of the problems that we had in Phokeng in connection with the BOP Government.

MR CURRIN: Could you just elaborate a little bit more on that answer?

MR MOKGATLE: If I have to elaborate, the Bophuthatswana Government was oppressing the people here at Phokeng and we didn't have any meeting, meetings that were supposed to be held by the Baphokeng tribe and it happened that one day the Baphokeng tribe asked us can you people in Johannesburg come down to help us fight this. They said maybe you could be of assistance, because in Johannesburg there can be venues where we can hold meetings without any disturbance. That is how we managed to continue with Baphokeng activities.

MR CURRIN: That was in 1990, after the political situation in South Africa had begun to be normalised. Is that correct?

MR MOKGATLE: Yes, that is correct.

MR CURRIN: On the day that Glad Mokgatle was murdered, there was a large group of Phiris who went to make representations, and to collect this key for this venue. Were you part of that large group?

MR MOKGATLE: Yes, I was part of the group.

MR CURRIN: Could you please tell the Committee members about your participation in that larger group and your

PHOKENG HEARING AMNESTY/GAUTENG

subsequent participation in the smaller group of ten people, who took the deceased hostage?

MR MOKGATLE: On the day that we held our meeting at the Roman Catholic Church, we were members of the action committee, together with the Phiri, because we had been asking the Bophuthatswana Government many things that they wouldn't agree with. When we met with the Phiri we took a decision. We said to ourselves we are going to search for the keys, the keys to our offices. Those keys do not belong to the Bophuthatswana Government, they belong to the Baphokeng tribe. And then we left to go and see Mr Billie Ramirise.

When we entered his place, trying to ask him where the keys were, the police arrived, the Bophuthatswana police. They said nothing, they started shooting at people with the rubber bullets. We hadn't had information about the keys. And then we dispersed. We were many. And it happened that we came together as the action committee. We said as an action committee we don't know where the keys are and we asked ourselves do we have any plan to get those keys, because they belong to us as the Baphokeng tribe. Because there were many of us, there were a lot of suggestions as well.

And the decision to take Mr Mokgatle, the chairman, that was the right decision, because we thought he would tell us everything he knows about the keys.

There was a concern raised, seeing that the police were so on arms, how can we get to Mr Mokgatle's house, are they going to shoot at us, what are we going to do. Then we decided to kidnap Mr Glad Mokgatle. The decision was to keep him at a place where he would not be seen by anyone.

PHOKENG HEARING AMNESTY/GAUTENG

We would interrogate him, to ask him questions about the keys. And if he gives us an answer, some of our members would go and get the keys. That was a very good suggestion and we all agreed.

We got into the Kombi, ten of us and we went to Chaneng. When we arrived at Chaneng other members of the group got outside. They went into the house. I was one of the people who stayed behind. I was surprised to see them taking a long time. Because we knew, kidnapping is something that happens so quick. I wanted to go and investigate what was happening. I used the front entrance and I met Mr Glad Mokgatle standing at the bedroom door, carrying a panga. I was scared to enter because he would start with me, he would kill me first. I decided to go to the back door. When I entered the house he had already been grabbed by the rest of the men and they took him into the Kombi.

I thought he would tell us where the keys were. There was no order in the Kombi, because everybody wanted to ask him where the keys were. While he tried to answer there would be a question from the next one, and in that manner we couldn't hear where the keys were.

We drove into the veld. I am working hard at Gauteng. While we were still driving I saw the Kombi stopping. The door was opened and Mr Glad Mokgatle was already on the ground, and it was a fight. I got out of the Kombi and I just stood surprised. I was really angry, because there was never such a decision to assault him. I saw some of the members getting into the Kombi so quickly and it drove off. When we drove off I had a look at Mr Mokgatle and I could see that he was still alive. I took the sabre from him and

PHOKENG HEARING AMNESTY/GAUTENG

I chopped him. I chopped him personally. I chopped him because I realised that we were heading for the prison. I wanted to seep away the evidence. (Applause).

I didn't want anybody to know or to have any light that Mr Mokgatle was here. We went into the Kombi and we drove off.

On the way some of the people got off the Kombi. I went to a funeral at the vigil. Later on I went home. At home, the following morning, the police started to arrest people. The whole day I wasn't feeling well, because I had never been arrested before and I had this strange feeling throughout my whole body. It came to pass. I told my wife that this BOP police arrest anyone indiscriminately, but I didn't explain to her that we have committed a crime. Then I moved away, saying that I would come later. At that point I decided to go away to Johannesburg.

I stayed a few days in Johannesburg and the BOP police came to Johannesburg and arrested me there. They brought me back to BOP. After I was here in BOP I appeared in court. I was sentenced 15 years imprisonment.

MR CURRIN: You admitted your active participation in the murder?

MR MOKGATLE: Pertaining to who? At the court?

MR CURRIN: Yes, at the court or even to your family, to your wife. You said to your wife that the police just arrest people indiscriminately. Subsequently have you ever told her or anybody else, other than maybe for the purposes of this application, of your active involvement?

MR MOKGATLE: I don't understand properly. I wish that the one interpreter can speak louder.

MR CURRIN: We understand, that although you were

PHOKENG HEARING AMNESTY/GAUTENG

sentenced, you had actually previously denied your active participation in the kiling. Is that correct?

MR MOKGATLE: Yes, that's correct, sir.

MR CURRIN: Is this today the first time that you have publicly admitted your active participation?

MR MOKGATLE: This is my first time, sir.

MR CURRIN: Were you a member of any political organisation at the time of this particular incident, and if so, which political organisation or political organisations were you a member?

MR MOKGATLE: I was the member of PPP during that time.

MR CURRIN: Were you also a member of the African National Congress?

MR MOKGATLE: Because of the struggle it happened that I communicated with the people of the ANC and I wanted to register with them.

MR CURRIN: I see. We have a letter on our file which tells us that you were a member of the African National Congress. So do you confirm that?

MR MOKGATLE: Can you please repeat your question, sir?

MR CURRIN: We have a letter on our file which says that at the time of this event you were a member of the African National Congress. I just asked whether you are able to confirm that.

JUDGE MALL: Who was the letter from?

MR MOKGATLE: Yes, that's true, sir.

JUDGE MALL: Who was the letter from, Mr Currin?

MR CURRIN: It is from the Rustenburg regional office of the African National Congress.

MR MOKGATLE: Yes, that's true. The people I met were at Rustenburg.

PHOKENG HEARING AMNESTY/GAUTENG

MR CURRIN: Mr Chairman, it is - before we move onto another aspect of the evidence, it is four o'clock and it has been indicated to me by my colleague that you wish to adjourn at 16:00. It is not 16:00. Should we continue on another tack or would this be an opportune moment to adjourn?

JUDGE MALL: Mr Currin, we will take the adjournment now and if it is convenient we would like to make a beginning tomorrow morning at half past nine. Will that be convenient to you?

MR CURRIN: That is convenient to us, sir.

JUDGE MALL: And Mr Mpshe?

Now before we announce the adjournment, please remain seated. There is a note on my table. Once again, please hand in the head-phones before you leave. Could you leave your head-phones on top of the stage here in front. If you do not do that then at future hearings you may be deprived of the use of head-phones altogether. So please for the convenience of everybody else, bring the head-phones and leave them here and I will now adjourn the hearing until 09:30 tomorrow morning.

MR CURRIN: Sorry, the witness has not been excused. Is that all right?

MS KHAMPEPE: It is too late.

COMMITTEE ADJOURNS

PHOKENG HEARING AMNESTY/GAUTENG

ON RESUMPTION

JUDGE MALL: Any re-examination?

MR CURRIN: There will be no re-examination.

NO RE-EXAMINATION BY MR CURRIN

JUDGE MALL: Thank you very much for the testimony you have given.

MR CURRIN: Thank you for the testimony.

WITNESS EXCUSED

PHOKENG HEARING AMNESTY/GAUTENG

81 MR L KGOSANE

MR CURRIN: Mr Chairman, the next witness we would like to call is Lawrence Kgosane and he will be testifying about the action committee and the role of the action committee.

JUDGE MALL: What is his surname?

MR CURRIN: Kgosane.

JUDGE MALL: Will you spell that, please?

MR CURRIN: K-G-O-S-A-N-E.

JUDGE MALL: Thank you.

LAWRENCE KGOSANE: (Duly sworn, states).

EXAMINATION BY CURRIN: Mr Kgosane, what are your full names?

MR KGOSANE: Lawrence Kgosane.

MR CURRIN: Where and when were you born?

MR KGOSANE: I was born in Phokeng in 1948 on the 8th of August.

MR CURRIN: You have heard evidence about the action committee when it was first formed, right at the beginning. What were the then objectives of the action committee?

MR KGOSANE: During its formation the objectives of the action committee was to take care of the tribe, that was split in two. We had to bring unity and the second point, we wanted to see that our kingship, the Baphokeng kingship is respected and we wanted to see to it that our king who was in exile should come back and take his right position.

MR CURRIN: Thank you. I meant to ask you this question a moment ago. What was your position on the action committee?

MR KGOSANE: I was the chairman of the action committee.

MR CURRIN: You said that one of the tasks and objectives of the action committee was to ensure unity amongst the tribe. Is that - are you referring there to the tribe or the tribal authority or the tribal council?

PHOKENG HEARING AMNESTY/GAUTENG

MR KGOSANE: It was to unite the nation, the tribe.

MR CURRIN: Was the tribe no longer united, if you say that?

MR KGOSANE: Our Baphokeng tribe was split, because of the former government.

MR CURRIN: Because of the former government? Why do you say that?

MR KGOSANE: I was born in Phokeng and when I grew up the Baphokeng tribe was pulling together. It was united. It was long before the Mangope government and just after the leadership of Mr Mangope there was a split ...

MR MPSHE: Outside Bophuthatswana?

MR KGOSANE: Yes, I was trying to say outside Bophuthatswana.

MR CURRIN: Thank you. You have described that you were forced then into taking up a political role. Could you tell us when the role changed, what then became the objectives of the action committee?

MR KGOSANE: Can you please repeat your question so that I can understand it?

MR CURRIN: You said and you explained that you were forced to change your role as an action committee and that you then undertook some sort of a political role. Would you please share with the Committee and the rest of us, what that new role was, the new role of the action committee now that you had undertaken some political role?

MR KGOSANE: We came to politics because we realised that there would be no way out as an action committee. We wanted to reach the liberation movements during that time, to get advice from them. We knew that those were the people who had information on how to fight for liberation.

PHOKENG HEARING AMNESTY/GAUTENG

MR CURRIN: What were those political objectives of the action committee?

MR KGOSANE: Our objective was to see unity among our tribe. We wanted peace in our area.

MR CURRIN: Did, as an action committee, you have any objective in regard to this building, from which you had been so to say, exiled?

MR KGOSANE: Our Baphokeng nation had an aim with erecting this building. We wanted to take activities that are related to the nation to this building.

MR CURRIN: I'm afraid I lost the - my machine developed a gremlin. Could you just repeat the interpretation for my purposes?

MR KGOSANE: The aim of the Baphokeng tribe was to - when I give you an answer: as the Baphokeng tribe we erected this building with an aim, that we have to carry our meetings here, and every matter relating to the Baphokeng tribe should take place in this building.

MR CURRIN: But you couldn't do that because you lost control of it. Now the question is, the action committee of which you were the chairperson, did you have any objective in regard to this building; were you happy that this building should remain under the control of the Bophuthatswana Government?

MR KGOSANE: Can you please repeat your question, I do not get it clear?

MR CURRIN: This building, the whole structure ...

ADV DE JAGER: He said he wanted it back for the nation, for the purposes of the nation.

MR CURRIN: I didn't understand that, but if that is what he said, I will accept it that is the answer. Thank you.

PHOKENG HEARING AMNESTY/GAUTENG

Maybe that is what I lost when my machine went on the blink. MR KGOSANE: Can I continue, sir?

MR CURRIN: Yes, sure, you may continue.

MR KGOSANE: Our aim was to conduct our meetings here in this building.

MR CURRIN: You had begun to have meetings with the African National Congress. Can you tell us a little bit about the nature of those meetings and if any relationship developed between your action committee and the liberation movements? Tell us about that as well, please?

MR KGOSANE: I don't want to dwell much into this issue. But what I can say is we wanted them to help us with a venue so that we can conduct our meetings there. We did so because this building was supposed to be used by the tribe. Not everywhere in Phokeng were we allowed to conduct our meetings.

MR CURRIN: And if necessary, we will lead evidence to that effect that the African National Congress was opposed to the governance of Bophuthatswana by the then President and that it was the policy of the African National Congress to overthrow that government. What was the view of the action committee in relation to that policy of the African National Congress?

MR KGOSANE: As the action group we really sympathised with the African National Congress in their mission to remove the oppressive government. Because the African National Congress during that time didn't want anybody to be mishandled.

MR CURRIN: Were any of you as members of the action committee members of the African National Congress, after it was unbanned at the beginning of 1990?

PHOKENG HEARING AMNESTY/GAUTENG

MR KGOSANE: After the ANC was unbanned, you need first to remember that in Bophuthatswana it was still banned and some of us, we went underground to join the African National Congress. Because their objectives were our objectives.

MR CURRIN: I have no further questions of this witness.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: Mr Mpshe, have you any questions?

MR MPSHE: There are no questions, Mr Chairman.

NO QUESTIONS BY MR MPSHE

JUDGE MALL: Thank you very much, you are excused.

WITNESS EXCUSED

(Applause).

JUDGE MALL: Mr Currin, I trust you have other witnesses to call. This would be a convenient time to take the adjournment and we will resume at two o'clock when you will call your other witnesses. The Committee will now adjourn until two o'clock.

COMMITTEE ADJOURNS

87 MR K C MOKGATLE

ON RESUMPTION ON 21 MAY 1997

JUDGE MALL: Are you ready to proceed, Mr Currin?

MR CURRIN: We are ready to proceed Sir, thank you.

KINANCHIMA CHRISTOFFEL MOKGATLE: (Still under oath).

EXAMINATION BY MR CURRIN: (cont): We have heard evidence from the first applicant in relation to the murder and we have heard evidence from you, and it is apparent from that evidence that there was no earlier intention or premeditation to kill the deceased. Could you tell us what was in your mind when the situation got out of hand and people began to assault the deceased. Why did you at that stage participate in the killing?

MR K C MOKGATLE: I had taken part - let me start first by saying my wish was to help Mr Glad Mokgatle because I saw people were assaulting him, but I was afraid, because I saw people who were with me, were very angry. Secondly, my taking part in that action was because I realised that he was already injured, and I was afraid that I will get into trouble, I will be arrested. I was trying to get away any links of myself being arrested. Thank you.

MR CURRIN: Could you also tell us what you hoped to achieve by getting the keys to this building, what was your objective in trying to get those keys?

MR K C MOKGATLE: My intention to get those keys, I wanted to send them, those keys to the Baphokeng tribe, so that our government of this building could again be run as we wanted, or as we wished as the Baphokeng tribe.

JUDGE WILSON: At this stage, I am now commenting on my ow impressions. When you talked about this building, this building consists not only of a large public hall, but what appears to be the governmental offices. Is that the

PHOKENG HEARING AMNESTY/GAUTENG

88 MR K C MOKGATLE

position?

MR K C MOKGATLE: This hall is meant for the Baphokeng tribe.

I would like to say this is not only the building for the hall, there are also many offices here, which belong to the Baphokeng tribe. Therefore, we as the Baphokeng tribe, after building this hall, we are going to enforce the interests of the Baphokeng tribe in this hall.

JUDGE WILSON: And did the persons who had the keys have the control over the building?

MR K C MOKGATLE: The person who had the keys in his possession, we don't really know the person in fact. We only saw every morning that this hall was opened. Therefore, we were looking for the keys so that we can use this hall, so that no one could enter this hall again without the permission of us, the Baphokeng, or only the Baphokeng tribe were allowed to enter this hall.

MR CURRIN: I would just like to consult with my colleague for a moment before I ask the next question.

JUDGE MALL: Yes, you may do so.

MR CURRIN: We have no more questions of this witness, thank you, Mr Chairman.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: Mr Mpshe, have you any questions of this witness?

CROSS-EXAMINATION BY MR MPSHE: In your testimony, Mr Mokgatle, you testified to the effect that the - perhaps one of the main reasons was to collect the keys from the deceased. Am I correct?

MR K C MOKGATLE: That's correct.

Your concern then only centred around the keys.

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What we talked about on that day, was only the keys, because we knew that those keys or that our lives were on the

users of those keys by that time.

MR MPSHE: Part of your concern in that meeting in the room in the Catholic Church, is that you were worried and concerned about the money that belonged to the tribe and that was being misused or stolen. Was that not discussed at the meeting?

MR K C MOKGATLE: What you are telling me now, sir, I would like to say it was only rumours. There were many things that were happening in these offices. Which forced us to get those keys and which meant that if we had those keys, we will do away with the things that did not satisfy us in this hall or decisions that were taken here.

MR MPSHE: You told the Committee that you personally hit the deceased with a panga, but you did not tell the Committee as to how you did that or on what part of the body did you do that. Are you ready, you can tell us that?

MR K C MOKGATLE: I truly believe that Sir, we don't have the same intentions because I explained earlier that before I hacced this man with that sabre, I was afraid to go to jail. Because I was never in jail. I didn't want anyone to know that I performed those bad deeds.

MR MPSHE: Perhaps it was not correctly put to you. I am saying to you you told the Committee yesterday that you hacked the deceased with a panga, but that ran short of you telling us how you did that and on what part of his body did you do that?

MR K C MOKGATLE: I hacked him on his neck with that panga. I did it once, I did it once.

MR MPSHE: Is the panga the only instrument that was used?

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MR K C MOKGATLE: That's what I used to hack him, that is the only instrument that I used.

MR MPSHE: Was there no other instruments or instrument other than the panga, which was in your possession or in you colleague's possession?

MR K C MOKGATLE: The other instrument I saw there was the only instrument I saw there, is a panga and the other one was a knobkierie and that knobkierie I saw it only when we were in court.

MR MPSHE: Is it all you saw in the Kombi, in your possession by means of instruments?

MR K C MOKGATLE: Those are the only ones I saw, it was a knobkierie and the panga only.

MR MPSHE: We have, Mr Mokgatle, in our possession, a document that was used by your legal representative, which was used as an opening document. I want to believe this document was compiled with your assistance. Am I right?

MR K C MOKGATLE: That's true, sir.

MR MPSHE: I am going to refer you to page 22, page 22 of that document. I am aware you don't have it in front of you but I will read it out to you and my question will follow therefrom. Page 22, the last paragraph, for the convenience of members. I will read that paragraph.

"Passions became inflamed and Mr Mokgatle was then thrown out of the mini-bus and assaulted by members of the group with ..."

The important part follows -

"... a variety of hand-held weapons."

Did you hear that?

MR K C MOKGATLE: The part I took is the part that I have

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already explained, that I used the panga.

MR MPSHE: I have heard the interpretation here, but I am not saying the interpretation is not good. I said did you hear what I have just quoted from the document on page 22? I will repeat that portion for the purpose of the interpreters

"Passions became inflamed and Mr Mokgatle was then thrown out of the mini-bus and assaulted by members of the group with a variety of hand-held weapons."

Did you hear that?

MR K C MOKGATLE: That's true, I have just heard it.

MR MPSHE: What were the weapons used?

MR K C MOKGATLE: The instrument I saw is the one that I have already explained or described which is a panga and the knobkierie. Those are the only instruments that I saw. I am talking about what I saw, I can't give evidence about what I haven't seen.

JUDGE WILSON: (Indistinct - (microphone no switched on) ... post-mortem report?

MR MPSHE: No, Mr Chairman, I didn't see the post-mortem report.

JUDGE WILSON: And in the judgment, the Judge who tried the accused, found, and I quote from page 8

"He could have known that to pulled a man of 83 or 84 out of his house and to kick him, while others were slashing him with the panga, certainly does not evince a strong sense of right and wrong."

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Is there any evidence from the trial record that any weapon other than a panga was used?

MR MPSHE: I am not aware of any admission of that sort from the record.

JUDGE WILSON: Thank you.

MR MPSHE: But I am here referring to a document used by the applicant wherein they allege themselves that a variety of weapons was used, and it is in my view that if such a statement is included and that the document was read onto the record, then an explanation, if it has to come, has to come from the compilers of the document itself, and that is, one of them is the applicant, the witness present.

MR MPSHE: Thank you. Thank you, everybody. I think we should deal with that aspect the correct way. I think let us ask this witness the following question, if you don't mind. This information which has just been read, did it come from you?

MR MOKGATLE: This information that has just been read, comes from, part of it comes from me.

MR MPSHE: I asked you whether this portion came from you. A variety of hand-held weapons. In other words the deceased was assaulted by members of the group with a variety of hand-held weapons. Did that portion come from you?

MR MOKGATLE: This portion comes from me. I answer the counsel's question by saying, those instruments or the instrument that I saw were the only ones that I have already talked about. That is the panga and the knobkierie. The knobkierie was used there and the panga was also used. Those are the only instruments that I say were used in this attack. The knobkierie was held by Mosibo Gupani.

MR MPSHE: Not hold it or possess it, use it?

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MR MOKGATLE: I saw him using it inside the mini-bus. He hit Mr Glad Mokgatle with that knobkierie. When I saw him doing that we were in the mini-bus.

MR MPSHE: How many times did he assault the deceased with that kierie?

MR MOKGATLE: I didn't count how many times he hit that deceased with that knobkierie, but it was numerous times.

MR MPSHE: Was this told to the Committee by yourself when giving evidence? Or was this disclosed by yourself?

MR MOKGATLE: I didn't tell this to the Committee until - I didn't say to the Committee what happened in the mini-bus. MR MPSHE: Mr Mokgatle, finally, why was this thing bad as it is, done by yourself? What was the motive behind all this?

MR MOKGATLE: You mean the actual killing? I was influenced or the motive was to be afraid to get arrested.

MR MPSHE: You testified yesterday that you are a member of the ANC, the African National Congress. Do you remember that?

MR MOKGATLE: I still remember well.

MR MPSHE: When did you become a member of the African National Congress.

MR MOKGATLE: In 1990 I started fighting for the ANC membership.

MR MPSHE: Do you know when was this, the year perhaps?

MR MOKGATLE: When I started talking to the ANC it was in 1990 until I lost touch with them and then joined and was then arrested without having obtained my rights.

MR MPSHE: Thank you, Mr Chairman, no further questions.

NO FURTHER QUESTIONS BY MR MPSHE

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JUDGE MALL: Any re-examination, Mr Currin?

RE-EXAMINATION BY MR CURRIN: Yes, there is an issue which was taken up yesterday by my colleague. I had hoped that he would take it up again today, and that is the question of reconciliation. I would prefer those questions to come from the Commission rather than from us, but if he hasn't put those questions I would like to put those questions about reconciliation.

JUDGE MALL: You may proceed.

MR CURRIN: Thank you. Are you sorry about - do you feel remorse about the murder which you committed?

MR MOKGATLE: I couldn't hear the question clearly, the microphone just went dead.

MR CURRIN: Are you sorry and do you feel remorse for the murder which you committed?

MR MOKGATLE: I am very touched by what we did, that is the actual killing, and I regret what I did.

MR CURRIN: In your view do you wish to reconcile with the family of the deceased and maybe you could also tell us whether there was any relationship between you and the deceased and the deceased's family.

MR MOKGATLE: If the Committee could allow me, I would like to point out to some people and thereafter explain my relation with the deceased. That's my plea.

MR CURRIN: You may do that, yes.

MR MOKGATLE: I would like to ask all the grand-children from Batshitshi to stand up, please. So that the Committee could see them. My sister's children who are here. The lady there who is standing up is my sister's child. His mother is the second born in our family, second born. This child's father which is Tshitshi, the grandfather, and Mr

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Glad Mokgatle's wife are sisters. Therefore, I am very sorry that I killed their uncle. These children of Mr Glad Mokgatle are my brothers. Therefore, the trouble that I have here in Phokeng, didn't satisfy me because I saw that if I am in jail, it is not satisfactory for me to work for my uncle, because I have killed him. The better thing was to kill myself. Therefore I didn't have food for about 76 days. That was not the only deed that I did. I thought because I wouldn't die because of hunger, I tried to hang myself about three times, but I didn't succeed. That's why today I come here in front of the Commission and the Baphokeng tribe, and the grand-daughters of Mr Glad and I have come to please ask for forgiveness from them. I have come here to ask for forgiveness in front of the Baphokeng tribe and the children of Mr Glad Mokgatle, and also my grand-children, because I feel I am alone, I don't have any family any more. Thank you. (Applause).

MR CURRIN: I have no more questions.

NO FURTHER QUESTIONS BY MR CURRIN

JUDGE MALL: Mr Mpshe, you are entitled to ask questions arising out of what has been said, if you choose to.

MR MPSHE: Thank you, Mr Chairman, I have no questions to put to the witness, arising from what has been said. Thank you.

NO QUESTIONS BY MR MPSHE

JUDGE MGOEPE: Do I understand your evidence to say that the deceased was a distant uncle?

MR MOKGATLE: The deceased was my uncle.

JUDGE MGOEPE: Mr Mokgatle, the PPP you referred to, what is it in full, just for the sake, for purpose of our record?

MR MOKGATLE: The PPP stands for the People's Progressive

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party.

JUDGE MGOEPE: Thank you.

ADV DE JAGER: Did you know the deceased well?

MR MOKGATLE: The deceased is my brother's brother. He was like a parent to me or like a father.

ADV DE JAGER: There wasn't evidence directly about it, but it transpired from the court record that he was 83 years of age. Is that correct?

MR MOKGATLE: The way I heard it was about 85 years. When I was told my uncle's age it was about 85, or someone told me he was 85.

ADV DE JAGER: So the ten of you attacked this old man.

MR MOKGATLE: That's true, sir.

ADV DE JAGER: Did he plead to you to save his life?

MR MOKGATLE: I didn't hear him say anything because there was much noise out there.

ADV DE JAGER: Did you at any stage search his pockets for the key or the house for the keys?

MR MOKGATLE: I never searched anything because I wanted him to tell me where the keys were.

ADV DE JAGER: And did you see anybody looking in his pockets or search in his pockets whether the keys were there or in the house where he was staying, looking for the keys?

MR MOKGATLE: I can't say anything about what happened in the house because when I entered the house people were going out carrying him. But in the Kombi I never saw anyone searching for the keys. All I saw was when he was assaulted.

ADV DE JAGER: When you assaulted him with the panga, did you see sever his head from his body?

MR MOKGATLE: No, the head was not separated from his body. I never saw that, by the time I used that panga. The head

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was not detached from the body.

ADV DE JAGER: Thank you.

MS KHAMPEPE: Mr Mokgatle, at the time prior to the meeting in St Joseph's Roman Catholic Church, you were working in Johannesburg at the Randburg Town Council. Is that correct?

MR MOKGATLE: That's true.

MS KHAMPEPE: How did you come to know that there was going to be a meeting at St Josephs? Did you receive an invitation, and if so, who invited you and were you told the purpose of the meeting at St Josephs at the time you were given an invitation?

MR MOKGATLE: We were acting as the Baphokeng action committee. When we had a meeting at Phokeng, we were talking. When leaving again and going to Phokeng, before we went back to Phokeng, we had already arranged for a day on which we will assemble or meet again at that same church. That is how there was no one who would invite us like an invitation to a stokvel. We already knew that on a certain day we will meet so that the people could hear what we had in our hands for them.

MS KHAMPEPE: Who presided at the meeting at St Josephs?

MR MOKGATLE: The days were never the same. That is, when the chairman Mr Lawrence Skosana was present, he could run the meeting. If he was absent the meeting was run by Mosibo Gupani.

MS KHAMPEPE: I think I must rephrase my question. I probably did not ask too explicit a question. At the meeting where a decision was taken that you would go and demand the keys of the civic centre, who presided at that meeting?

MR MOKGATLE: On that day, I can't remember well who

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conducted the meeting on that day when we came to look for the keys, because by the time I went into the meeting, the meeting was already in process. Therefore I couldn't see clearly who was the chairman of that meeting.

MS KHAMPEPE: Nevertheless that meeting gave an order that keys will be demanded from Mr Mokgatle.

MR MOKGATLE: By the time I entered the meeting, I met people and they said let's go and fetch the keys, because those keys we had a couple of days talking about those keys, demanding them, and then we started going out and we were in a hurry to fetch those keys.

MS KHAMPEPE: So you are unable to say whether at that meeting there was any alternative plan discussed to obtain the keys of the civic centre?

MR MOKGATLE: The keys to the civic centre, that is when I entered the meeting. I heard people saying that we have to fetch the civic centre keys from Mr Billie Ramoresi. He had to tell us where the keys were or where they were supposed to be.

MS KHAMPEPE: In your testimony you have advised this Committee that you went to Mr Ramoresi's place. Then you were dispersed by the police when they started shooting with tear-gas and rubber bullets. And you then decided, as the action committee, to march to Mr Mokgatle's place to demand the keys.

MR MOKGATLE: That's true.

MS KHAMPEPE: The action committee members decided that you had to obtain the keys. This is when you were now a smaller group. I think your counsel spoke of your participation in a larger group and a smaller group. I am expecting a

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response.

MR MOKGATLE: That's true.

MS KHAMPEPE: Is the committee a publicly known organisation at Baphokeng tribe?

MR MOKGATLE: That's true.

MS KHAMPEPE: When you went to Mr Mokgatle, did you - well, let me rephrase my question. Obviously the significance attached to the appropriation of the keys, was to obtain control of the civic centre.

MR MOKGATLE: That's true.

MS KHAMPEPE: Were there no other means which could have been employed to obtain control of the civic centre, other than demanding the keys?

MR MOKGATLE: It was very difficult for us by that time. I don't know whether I would be allowed to explain a bit regarding our struggle here in Phokeng. We tried by all means, we as the Baphokeng tribe, trying to get the government to solve our problems which we had, as the Baphokeng tribe. I still remember, if I remember well on the 10th of July 1990, we wrote a letter to President FW de Klerk and we said in the letter please come and talk to the Bophuthatswana Government, so that we, as we try to meet him as the Baphokeng tribe, he must attend to our needs or to the call, and the central Government, that is that these things are now so much developed, we don't understand them any more. The central Government under the presidency of Mr De Klerk, when they answered us, they sent us the message that we share your needs of the Baphokeng tribe, but I can't get into your problems because they are not mine. That is the answer was from the Minister of Foreign Affairs, Mr Pik Botha, who answered us by saying that. We tried again, we

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as the Baphokeng tribe, that we are not satisfied about the

way you answered us, Mr De Klerk; please reply us in a satisfactory manner before we go to the international community. When the second letter came up, the letter said the Baphokeng, for the Bophuthatswana Government to come in and negotiate with you, that is when we started writing letters to the Bophuthatswana Government, to come and negotiate with us. And we explained to the Boputhatswana Government that firstly, we want them to explain to us about the millions of rands which are coming from our mines, where are those rands going to. Secondly, they had to explain to us what was Mr Edward Molokegtle fault, because he was chucked away from Phokeng.

The former Bophuthatswana Government replied by saying he doesn't want anything from us, because our letter didn't reach him through the acting Chief. We then started coming into the problems we had with the keys, because we knew that if we could get hold of those keys, we lock away all the crooks who were staying here. (Applause).The people who burgled or treat the people and came to share the money here, we as the Baphokeng, we didn't build these offices so that people could do any crookery in there. We build them for people like you, so that they can come to solve their problems of the Baphokeng tribe here. (Applause).

I am through, thank you.

JUDGE MALL: Can I just intervene at this stage. I would like to please appeal to the public that this is a serious enquiry and not a mass meeting. Please, refrain from clapping, because it detracts us in the performance of our serious duty. I kindly appeal to you to restrain from clapping and expressing your feelings and your emotions. I

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understand you have strong feelings about what you are

hearing here, but kindly realise that we have a solemn function to perform and we would like you to refrain from expressing your pleasure or delight or anger by clapping or making any kind of comment. I would very much appreciate it if you did not do it. Thank you.

MS KHAMPEPE: I have no further questions, Mr Chairperson, thank you.

JUDGE MALL: You may stand down. Thank you very much.

WITNESS EXCUSED

END TAPE 1 - DAY 2 - SIDE A

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TAPE 1 - DAY2 - SIDE B

MR CURRIN: ... lead in support of certain aspects and he did indicate informally to make certain indications to us, but nothing is on the record. So at this stage we are not yet in a position to know the extent to which we are going to have to call witnesses to substantiate certain aspects of that document.

Secondly, we have had a number of meetings, two in fact, with members of the national executive of the African National Congress and we were advised that a person would be here today to testify on behalf of that organisation in respect of certain critical issues. We have not seen that person here yet, and in the circumstances that would have been our next witness. In the circumstances we would ask if our learned colleagues here could commence with their evidence. I know this would be contrary to the guidelines, but we would ask your indulgence to be able to - so that proceedings can continue, to be able to call the witness from the African National Congress afterwards.

Thirdly, I should mention, we have also consulted with family - certainly, two sons of the deceased, who indicated that they would like to testify. Now I believe that the Commission counsel have also consulted with those sons of the deceased and I assume that they will be called by the Commission and would not be necessary for us to call them. But I would like to place on record that if they are not called by the Commission counsel, then we would certainly like to call them. Thank you, Sir.

JUDGE MALL: Have you any indication as to when the witness you would like to call, will be here?

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MR CURRIN: We were told that the witness would be here at approximately 09:00 to 09:30 this morning. We were also told that there would be communication with us via a cellular telephone. I have not been able to turn mine on since the proceedings commenced. We did also discuss this issue last night with a very senior member of the MEC and we were told that a person would be here. So I can't say exactly what time, but the moment we break for tea we would certainly follow that up, Sir.

JUDGE MALL: Speaking for myself, and I might be expressing the views of my colleagues, I think we have sufficient information before us on matters relating to the history of the tribe, its recent history at any rate, and its difficulties with the government of the time at that time. I think that we are more concerned, not with that, whilst it is important to have that as part of the background, but if there is evidence to be led, I think we would appreciate if that evidence have a direct bearing on the actual events that occurred and that resulted in the two applicants being charged and convicted of murder. So if there is any evidence of that aspect of the matter that you propose calling, then I will be prepared to hear all that, but I am just indicating that we might save a great deal of time hearing about the early history of the tribe and so on.

MR CURRIN: Mr Chairman, there is one small issue that needs to be placed on record. We believe in order to discharge our onus in terms of the Act, I think it would be appropriate for me to discuss it with you at - to discuss maybe that point with the Committee during the tea break, just to ensure that our thinking is correct, because as I said earlier on, this is the first time that the provisions

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of the Act are being applied and interpreted. Certainly the evidence from that person, from the African National Congress would be very short. It would not be lengthy and it won't go in again to the history. It is a question of - as I say, one small aspect of the Act that we believe we need to comply with to succeed.

JUDGE MALL: You will have an opportunity of calling that witness, and I am hoping that he is available. Very well. Mr Mphshe, have you any objections to proceeding with your side of the case, if you propose calling witnesses? Are you in a position to call your witnesses at this stage?

MR MPSHE: Mr Chairman, I am in a position to call my witness at this stage, but I have just been informed, and I did convey this to my colleague, that the witness he intends calling from the ANC is seated in the gallery, and I ask that he call him, seeing he is available, before I call my witness. I have relayed this to my colleague.

JUDGE MALL: Mr Currin, it seems that you are not aware of the fact that your witness is here.

MR CURRIN: It was just said to me. I am in a difficult situation, that I don't know who has been sent and I haven't spoken to that person and I am not sure that that person knows precisely the particulars in detail, the actual issue, that we need clarified. It would certainly be preferable to be able to spend a short while just discussing that with the witness before we call him. But if necessary, we can call him right away, but I would prefer a short consultation.

JUDGE MALL: To enable you to have a consultation with this witness, I think it is appropriate that we should take the adjournment now instead of breaking into the proceedings at 11:15. I would urge upon parties to try and be as

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expeditious as possible.

MR CURRIN: Thank you.

JUDGE MALL: Thank you. We will take a short adjournment to enable counsel ...

HEARING ADJOURNS

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ON RESUMPTION

MR CURRIN: We have now received an instruction that the African National Congress is in the process of preparing a position which they intend submitting to the Truth Commission and that will be the representation by the African National Congress and that there should be no other representation in any separate amnesty application place on record by the African National Congress.

We have explained to them our difficulties, and when I came through a few moments ago, I was told that the people from the Rustenburg office have now gone back to the office to try and sort out the confusion. So we find ourselves in a difficult position. We are not at this stage able to lead the evidence that we had hoped.

JUDGE MALL: Very well. In the light of what you have just said, I call upon Mr Mpshe to indicate whether he has any comments to make on the document that was handed in by Mr Currin at the beginning of the hearing yesterday.

MR MPSHE: Thank you, Mr Chairman. Mr Chairman, the documented handed in by my colleague by way of introduction, was studied and perused by myself, in consultation with the five victims yesterday evening. Mr Chairman, upon perusal thereof, it emerged that the contents of the document are not in dispute at all, and we have since found that there is nothing, absolutely nothing to comment that may necessitate the calling or substantiation thereof by means of oral evidence. This I have relayed to my colleague. Thank you, Mr Chairman.

JUDGE MALL: It will be on record that the contents of this document are not contentious as far as you are concerned, Mr Mpshe. Very well.

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JUDGE WILSON: Could I clarify one point. You refer to victims. I take it you mean the sons of the victim?

MR MPSHE: (Indistinct).

JUDGE MALL: Very well, Mr Mpshe, are you proposing to lead evidence?

MR MPSHE: Thank you, Mr Chairman. I am ready to call evidence if the Chair wants me to call evidence. I was of the opinion as a - referring back to what was said in chambers, that my colleague was going to call the third ANC member to put on record what was said in chambers and thereafter I call my witness.

JUDGE MALL: I think things have changed since then, and I think you should now proceed with leading such witnesses as you consider proper.

MR MPSHE: I stand corrected, Mr Chairman.

RECORDING SWITCHED OFF - ON RESUMPTION

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MR MPSHE: Mr Chairman, I then call upon Aaron Mokgatle as a witness to testify.

AARON MOKGATLE: (Duly sworn, states).

EXAMINATION BY MR MPSHE: Mr Mokgatle, is it correct that you are 58 years of age?

MR AARON MOKGATLE: Yes, that's true.

MR MPSHE: The deceased, Glad Mokgatle, was your father?

MR AARON MOKGATLE: Yes, that's true, Sir.

MR MPSHE: You are the eldest son in the family?

MR AARON MOKGATLE: Yes, that's correct.

MR MPSHE: There are two other brothers younger than yourself?

MR AARON MOKGATLE: That is correct, Sir.

MR MPSHE: Tell this Committee as, or tell the Committee as to where your mother may be.

MR AARON MOKGATLE: My mother passed away.

MR MPSHE: When did she pass away?

MR AARON MOKGATLE: It was in 1982.

MR MPSHE: 1982 or 1992? Did you want to say 1992?

MR AARON MOKGATLE: 1992. It was in 1992.

MR MPSHE: Mr Mokgatle, you will recall that myself and yourself and other members of the family had several consultations wherein I explained to you as to the purpose of this gathering.

MR AARON MOKGATLE: Yes, I remember that.

MR MPSHE: You mean that you are willing to come and testify?

MR AARON MOKGATLE: Yes, that's correct.

MR MPSHE: You were in yesterday when the witnesses were testifying?

MR AARON MOKGATLE: I was here.

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MR MPSHE: Exactly what first applicant, Boy Diali and

second applicant, Christopher Mokgatle testified to this Committee?

MR AARON MOKGATLE: I understood them perfectly well.

MR MPSHE: I want you to tell the Committee as to the position or the status of your father, the deceased, in the troubled matters.

MR AARON MOKGATLE: Are you referring to what he was doing here?

MR MPSHE: (Indistinct) matters.

MR AARON MOKGATLE: Are you referring to his position here at Phokeng? He is the uncle to the chief and being the uncle he was working hand-in-hand with the chief. He worked with Chief Leboni for quite a long time. Even if you are people, there must be conflict between you.

It happened that there was a conflict. He worked, together with the chief - I can't remember until when, but at some point there was a misunderstanding between the two. And my father temporarily left the job. I think when the chief was removed from the people, because of the government, Mr Glad was not here at the offices. After the chief have left, Mr Glad took his chairmanship again. My father continued with his job, his work was the community. By that time the chief was not available when Mr Glad continued working with the community.

By that time he had someone to work with, who was working with him, while the chief was away. Mr Tumahole's

position, he was a hand to the chief or an assistant to the chief, when the chief was not there, he occupied the chief's seat.

Thereafter he worked with Mr Cecil Tumohole. Because

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of the government of the day, there was no working together

amongst the two. Because there was a time when Mr Mangope called us to Mafikeng and he asked us, the Baphokeng tribe to tell him where was our chief. And we replied by saying the chief was not available, but here at Phokeng, we don't have problems with the chief, the problems we have we have an uncle to the chief, who is Mr Cecil Tumohole, and we also have the grandmother who is the chieftainess. That's what we told him at Mafikeng that these people are the people who rule the Baphokeng tribe, and we don't see - and we don't have any problems since Mr Laboni is not available.

MR MPSHE: You will recall when I spoke to you, that I said specifically our intention is not to remind you of the pain that you once felt, which pain may still be still in subsistence, but I request that you open up and tell the Committee, despite the terrible or brutal manner whereby your father was killed. Tell the Committee how you feel about this.

MR AARON MOKGATLE: The Truth Commission or Reconciliation Commission, my feelings stem from the witnesses that I have already come here. My feelings towards them are as follows: This is a Truth Commission. Even in the churches the reverends always say speak the truth, so that God can forgive you. Therefore I come to realise that you cannot repeat this thing time and again. Really, what these people have done is very terrible, but the truth that I have told this Commission or this Committee, stems from political connotations. I should think they haven't released by that the truth they told this Committee and I have forgiven them, while they were explaining to me why they did what they did. If what they committed is a sin, it is their own sin, but

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according to me, I have forgiven those people, regarding the truth that they have told the Committee. Because also me as

a person, when I pray usually, I say God, please forgive me my sins, like I forgive those who sin against me. (Applause).

MR MPSHE: You may continue.

MR AARON MOKGATLE: To continue I will say I realise that the evidence put here has been listened to. What I mean is that I have heard enough, I don't want to hear more than what I have heard. Although some people didn't tell the - they didn't tell the story the way we heard it, but all they said they finished the story to my understanding. We have forgiven them as a family. But I am speaking only on my behalf.

I want to put it this way and say, there are people who killed Mr Glad, because we are not to use such happenings here in Phokeng. It is not on many occasions that if a person has killed someone and that person comes from jail, the person can come and brag to you and say I have been released. If people say that they have killed someone and confess to you that they did it, you have to forgive that.

MR MPSHE: ...that you have a request to make to this Committee. Do you still want to make that request?

MR AARON MOKGATLE: No, I don't want to go any further.

MR MPSHE: Thank you, Mr Chairman, that concludes the witness' evidence.

NO FURTHER QUESTIONS BY MR MPSHE

JUDGE MGOEPE: Mr Currin, are there any questions you wish to ask this witness?

MR CURRIN: I have no questions to the witness, thank you.

NO QUESTIONS BY MR MR CURRIN

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MS KHAMPEPE: Mr Mokgatle, have you recently had an opportunity to speak to any of the applicants?

MR AARON MOKGATLE: I haven't had any opportunity to do so.

MS KHAMPEPE: Do you feel that you should be accorded that opportunity?

MR AARON MOKGATLE: Yes, I feel so, because now I am here at the table speaking about those people, but I haven't yet sat down and spoke to them face to face. And again, one other thing, I want to forget. I have just remembered it. As this is the job of the Committee, I now personally plead with the Committee, is this Committee going to afford me the cost I incurred when burying my father, and because I have my own family, and I also have the grand-children who had no families, and it is me who is taking care of them. So I wonder whether the Committee cannot foresee for the cost I incurred. That's my plea. I wonder whether the Committee would help me with those costs of burying my grandfather or my father. Can you please do something about that?

MS KHAMPEPE: Mr Mokgatle, the Committee will take into account any costs that you want to place us in possession of, if you could just advise the Committee what costs you are referring to. Just on the question of costs, how many children did actually Mr Mokgatle have? You have counted sons so I am not sure whether you excluded any daughters.

MR AARON MOKGATLE: Regarding the children, I say I am not talking about my own children, I am talking about the children Mr Glad left at home when he died. I don't say help me with my family, what I mean is help Mr Glad's children, all the costs I incurred in burying Glad. And since he left this family hasn't had anyone to take care of them. I don't mean the children of my own. You must know

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that if you are a parent and you leave a house or a home, the home can survive, because after the death of the old

man, the sister also died. That is the children's mother. And that happened in the same year. The other died at least two months after Glad passed away.

One other thing that I nearly forgot, I want to remind you, the Committee, that here in Phokeng, we are one family. I heard one of the witnesses saying or telling you how he relates with me. He is telling the truth. He is not lying. They performed a very terrible deed, they killed their own grandfather, but they are still family to us. That's what surprise us. Therefore that is the last thing I wanted to say to you.

Please just remember that I have problems regarding the burial of my father and the family that I am taking care of presently. I will end there.

MS KHAMPEPE: Mr Mokgatle, the Committee will take cognisance of the costs which you have incurred as a result of the death of your father. We have three committees within the Truth and Reconciliation Commission. It is this Committee. We also have another Committee which is called the Reparation and Rehabilitation Committee. Our function here, is however, not to make any reparations of whatsoever nature, but we have to form an opinion whether as a result of the incident, for which amnesty is being sought, there are any victims from that incident. You have put evidence before us that you as a child of Mr Mokgatle has incurred burial expenses which you want that to be considered, and that Mr Mokgatle has children who suffered as a result of his death. The Committee will take that into account.

MR AARON MOKGATLE: I thank you.

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JUDGE MALL: Thank you very much.

MR AARON MOKGATLE: Dankie.

MR MPSHE: Mr Chairman, I have another witness to call, that is the younger brother to the witness who has just testified, but I need guidance from the Committee as to whether it would be apposite of me to call such a witness. Because the witness has made this special request and does not intend to give evidence about the incident as such, but to make a certain appeal to the tribe by way of reconciliation. I want the Committee's directive whether the witness can be called in line with reconciliation.

JUDGE MALL: Mr Mpshe, you may call the witness you propose calling.

MR MPSHE: Thank you, Mr Chairman. Then I call Charles Mokgatle.

CHARLES MOKGATLE: (Duly sworn, states).

EXAMINATION BY MR MPSHE: Thank you, Mr Chairman. Mr Mokgatle, Aaron Mokgatle is your eldest brother, not so?

MR CHARLES MOKGATLE: Yes, that's true, Sir.

MR MPSHE: How many all in all are you at home, children to the deceased?

MR CHARLES MOKGATLE: We are three, we are three gentlemen.

MR MPSHE: Earlier on, as a family you had agreed that Aaron Mokgatle, by virtue of him being the eldest, will testify. Do you remember that?

MR CHARLES MOKGATLE: I remember that, Sir.

MR MPSHE: You approached me and requested that you also would like to testify but on something different, and you wanted to say something about reconciliation. Is that so?

MR CHARLES MOKGATLE: That's correct, Sir.

MR MPSHE: You will testify to that effect?

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MR CHARLES MOKGATLE: I am happy to have been afforded this opportunity and I am happy to have this opportunity to come

up here in front of the Committee and the Baphokeng tribe and the chief. I am also happy again about the people who killed my father and having revealed the truth. I should like to believe that they did this under the pressures of the past era and I would also like to request the Baphokeng tribe that in the passage of time when we were still under the rule of Mr Lucas Mangope, things were terrible at that time and there were threats from the other parties. There were people who were killed outsiders or sell-outs and others were given other names and so on. We had a very difficult life. We really had a very difficult life for a long time, because we, the Baphokeng tribe, people were giving us names because my father was working under Mangope's regime. At that time the Baphokeng had the impression that we also were in that party which was disliked at that time or was unpopular, which was against the people of Phokeng.

There were also threats when I was travelling around here in Phokeng, I was always under the impression that people were going or people were saying that I should have gone away with my father, I should have died with him, I should have followed him. Therefore, I had a very difficult life since then, and I am now happy when this Committee is here so that I can have an opportunity to speak to the Baphokeng tribe and inform them that please, my people, I don't belong to any party. I have never belonged to any party. I am only a child who belong or a person who was born in the Baphokeng tribe and I obey the rules of the Baphokeng chief. It wasn't a good time in our family by then. We

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never had a good night's rest.

There were also threats that me and my father had taken

the people's money, with which he built me a house. Therefore, the Baphokeng tribe, I want to tell you that is not the truth, that didn't happen. And the person who told you that I was a sell-out, told you lies. I am really very standing in what I say in front of this Committee, that if someone disputes what I am saying, he can tell the Committee now to investigate me and whatever errors they find in their investigation, they can always return to the Baphokeng tribe and tell them that I wasn't telling the truth; he was belonging to such-and-such a party, he was built a house with the moneys of the party.

Then I would also like to plea with you that, please forget about the past, let's start living together, let me belong to your community again, let me not be an outcast in my own people. I have my younger brother by the name of Norman. I also ask the same for him, because we lead one and the same life, me and him.

Therefore I want to tell the Baphokeng people that the impressions you had of me were never true. I want to thank you.

MR MPSHE: Is that all?

MR CHARLES MOKGATLE: In fact, that's all I wanted to say, because there is nothing more I can prolong. My brother has already summarised everything. Everything that my brother had said is what we agreed upon. Therefore, I just wanted to tell the Baphokeng people that, please don't make us outcasts because of rumours. Please come and ask us ourselves where was our standpoint. We still belong to you, let's live together in harmony.

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MR MPSHE: That is the witness' evidence.

NO FURTHER QUESTIONS BY MR MPSHE

NO FURTHER QUESTIONS BY MR MPSHE: JUDGE MALL: Mr Currin, any questions you wish to put to this witness?

MR CURRIN: We have no questions to this witness.

NO QUESTIONS BY MR CURRIN

JUDGE MALL: Very well, we thank you very much for the evidence you have given.

WITNESS EXCUSED

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MABITSO ANGELBY PHETOANE: (Duly sworn, states).

JUDGE MALL: What is your position in the tribe, Mr Phetoane?

MR PHETOANE: Presently, I am a deputy chairman of the council.

JUDGE MALL: Yes, have you been authorised by the council to be here?

MR PHETOANE: No, I spoke to the council chairman during the break, who is the honourable chief and he had no problem about my appearance here.

JUDGE MALL: Very well, what do you wish to tell this Committee?

MR PHETOANE: I should think the Honourable Sir means that I can go on and speak.

JUDGE MALL: (Indistinct) for purposes of this Committee.

MR PHETOANE: Thank you. Firstly, let me repeat what the chief said yesterday when he welcomed the guests here and opened these proceedings, when he said this is the beginning of the events heard by this Committee in Phokeng, and Phokeng will have to be exemplary in South Africa. That was true. I want to point these words to the Baphokeng and tell them that you are very lucky that the Amnesty Committee started its proceedings here at the Baphokeng Civic Centre. Good people, what I want to say, is Phokeng has been in existence for a long time. Therefore the Baphokeng, all the Baphokeng people are one community. There is no one who doesn't relate to the other here in Phokeng. What happens here in Phokeng which brought us here, really touched every member of the Baphokeng tribe and we are very happy that today the perpetrators have come and explained to us what happened.

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In sharing the council of the Phokeng, but please allow me with due respect, to say to the Committee, we as the committee of the Phokeng, as I have already mentioned that you are a family. The elders of Phokeng are elders to all of us, the grandfathers, the grandmothers and the words of what I didn't like, which I never personally liked, is that when we talk about older people or an elderly, we must speak street language or use terms such as girlfriend or boyfriend. That's how the Baphokeng people are. Although we are very sad we still have to avoid such words or names, because these don't show respect in any way.

Good people, I would like to say that you must erase such words as girlfriends whilst you are referring to our grandfathers and grandmothers.

I would further like to say to the Committee and the Baphokeng tribe who doesn't know or who don't know, that me as Sambitso Phetoane, the guys who performed these deeds, who came before this Committee, are people who I know very well. The person unto whom they did this is my father in my terms. I would like to say I would like to forgive them and ask them to consider before doing such things, that they are doing it to their own community.

Furthermore, the perpetrators of this incident have already said or have told you their feelings and the sons of the deceased have also told you how they feel about the whole scenario. Therefore, I would like to plead with the Baphokeng that please, the difficult times we had have already passed. Therefore, this is the time to talk about what happened in the past so that we can be forgiven today. The whole community is like that. I am not only talking about the people who gave evidence here. I am

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talking about the whole community, because these difficulties were not only for the people who gave evidence here, the whole community was living in those difficult times as a nation.

Please, let's sit down like we are sitting today and reveal the truth and put it on the table before the Committee. I am happy with what Mr Charles Mokgatle said when he said during those difficult times, you said I was an outcast, but today, the Commission is here so that Mr Mokgatle can present his story and you can listen to him. So we have to forgive one another as a Baphokeng tribe next time, without the presence of the Committee, so that we can live together again in harmony as we did before.

I plead with you the good community, let's forget about the past, come here and sit down and talk about these things so that we can forgive one another and start living together in harmony like we did before again.

Good people, in those difficult times in the past, many of our heroes left us, who were upright in the community, like Mr Glad Mokgatle, Mr Magetla Phetoane, Mr Goporana Sorane, Mr P...(indistinct) Rappor, but people fughting about Baphokeng, who Phokeng had as their pride. When we talked about Phokeng we were referring to such people and they left us today, but if we can come together as a community. Those are heroes who left us, they will again come and live within us, if we together live in harmony and have forgiven each other or one another about the past.

When I am finished, I would like to say, I would like to thank all the Baphokeng who in these two past days have come here to listen to the evidence, to listen to the truth when it emerges. I would like to thank the Committee for

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coming here to the rural area and not only considering the urban areas. We thank them for that respect they showed for us and the Baphokeng tribe has come back together again and the other things we leave to the Committee. I thank you very much.

JUDGE MALL: Thank you very much.

Mr Currin, have you decided whether you are going to call any further witnesses?

MR CURRIN: The only other witness that we would like to have called would have been someone from the African National Congress. We don't know what their position is and we will only know probably at lunch time. So if the Committee would allow us to indicate after lunch, we would appreciate that. We are obviously in the hands of the office of the African National Congress.

JUDGE MALL: Mr Currin, we, I think, have afforded you a great deal of opportunity to enable you to call witnesses and whether the difficulties arise because of your inability to communicate with the relevant people or not, it does seem that adequate time has been given to you, and unless you are persuasive that there is something highly relevant in the evidence that this man is going to give, that affects or might affect the decision of this Committee, I am not inclined to give you any further latitude on that regard. You have to be satisfied in your mind that the witness you propose calling has something highly relevant to say to this Committee.

MR CURRIN: Mr Chairman, I believe that the evidence that the witness would give is relevant. However, I can give no indication to the Committee that the witness is willing and/or able to testify and therefore I think I have no other

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option but to say that we can take the case no further.

JUDGE MALL: Thank you. Do you wish to address the Committee?

MR CURRIN: Mr Chairman, I certainly would like the opportunity to address the Committee and present motivation and argument as to why in our view the application by the two applicants should succeed. However, we would require around some time in which to just prepare our argument finally and present it and we wonder if we could present the argument after lunch. We have a lot of papers, we have heard a lot of evidence. We worked late last night to put it together so that we would be in a position to present argument immediately, but we certainly would appreciate a little time in which just to finalise the argument.

JUDGE MALL: Is it quite clear that you are not in a position to commence addressing us now?

MR CURRIN: Mr Chairman, we regard this application, these applications as extremely important. I certainly could start now but I would prefer an opportunity until two o'clock. We will waiver lunch. We are asking for an adjournment of 30 minutes early. We will waiver our lunch break. We will work here until two o'clock, until you readjourn. We would prefer to commence the argument then than now.

JUDGE MALL: Very well, Mr Currin, you will be afforded an opportunity to address the Committee, after the adjournment and we hope to commence at two o'clock. This Committee will now take an adjournment and resume at two o'clock.

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ON RESUMPTION

JUDGE MALL: Are you ready to proceed, Mr Currin?

MR CURRIN: Yes, sir.

JUDGE MALL: I may say before you start, that you need not take time to address us on the background which is contained in the document which you have handed in.

MR CURRIN: Thank you.

JUDGE MALL: Thank you.

MR CURRIN ADDRESSES COMMITTEE ON MERITS OF APPLICATION

Mr Chairman and members of the Committee, in order to succeed with this application as we read the Act, we need to do four things. We need to satisfy you that the application complies with the requirement of the Act. It is our view that those are formal requirements. There was an indication from our colleagues representing the Commission, right at the outset, that the application was properly submitted and received and properly before this Commission. So we will work from the assumption that the application does in fact comply with the requirements of the Act.

The next ... (intervention).

JUDGE WILSON: One point there, Mr Currin. It is a highly technical one. In your application or the application I have, it refers somewhere to an act committed on the 29th of October 1990.

MR CURRIN: Yes, that is correct.

JUDGE WILSON: Could that be December?

MR CURRIN: That is December.

JUDGE WILSON: Are you going to amend your application for it?

MR CURRIN: We would ask to alter the form accordingly. There is also one other alteration which I wish to draw to

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your attention. Reference is made to Judge Waddington, that should be Judge Friedman. We apologise for that error.

The second requirement is, we need to satisfy you that the offence is associated with a political objective, and that we will deal with shortly.

Thirdly, that the offence was committed in the course of the conflicts of the past.

Now in dealing with the previous one, namely, that the offence is associated with the political objective, we will simultaneously refer very briefly to conflicts of the past. There has been an indication that that is accepted. So we will certainly not belabour on that point.

Then finally, we need to satisfy the Committee that the applicants have made a full disclosure of all relevant facts. We believe that the applicants have made a full disclosure and unless we are questioned on that, we will assume that that particular leg or requirement has been met.

We will now have reference to the requirement that the offence is associated with a political objective. With reference to section 20 of the Act there are two aspects which we would like to refer to.

First of all, an act associated with a political objective is defined as meaning an offence, constitutes an offence or delict which according to the criteria in subsection (3) is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic of South Africa during the period of 1 March 1960 to the cut-off date, which we know is December 1993, by any member or supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or

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movement, bona fide, in furtherance of a political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation.

Now before referring to the criteria, I would just like to make a very short submission, and that is that we believe that we have proved through the evidence of the two applicants, that they were members of a publicly known organisation, namely the African National Congress, and that furthermore there is evidence that they associated with the aims and objectives of the African National Congress.

JUDGE WILSON: That is not what they said in their evidence. Why do you keep coming back to the African National Congress, Mr Currin? They were associated with a tribal political object. The evidence is quite clear. It is publicly know they were part of a publicly known political organisation in this area. Weren't they?

MR CURRIN: They were. But what they did say, and I think the evidence is quite unequivocal, as far as this is concerned, was when they first formed the action committee, it did not have a political objective. Later it took on a political objective and they all became members, most of them became members of the African National Congress. We think that is important, and why we say it is important, is because there is no evidence, and we will not attempt to even - we will not attempt to argue or persuade you that what they did was done with the approval of either the tribe or of the action committee. We need to illustrate, and the Act, we believe is quite clear, that what they did, they did at least as part of a political struggle acting in good faith. That is a requirement of the Act and we have

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attempted to show that.

So we believe there is evidence before this Committee that they were members of the organisation, that they associated with the objectives and that they associated with the political struggle of that organisation.

JUDGE WILSON: Which organisation?

MR CURRIN: Of the African National Congress.

JUDGE MALL: By virtue of being members of the organisation.

MR CURRIN: By virtue of being members of the organisation. They identified with the organisation. There is also ample evidence and we believe that it became - it is quite clear from the evidence that the nature of the struggle within this area changed very subtly at a particular time, when the Bophuthatswana Government refused to take cognisance of any of the representations that they were making, and because their struggle was politicised by the Bophuthatswana Government, they themselves moved towards a more political struggle, which was not their original intention. It became inevitable.

JUDGE WILSON: Mokgatle said he applied for membership of the ANC. He didn't know if he has been a member. You produced a letter saying I have got a letter showing you were. He said he then joined the PPC. Didn't he?

MR CURRIN: Yes, he did say that.

JUDGE WILSON: So he didn't say he was a member. He said in fact he wasn't a member, but had applied for membership.

MR CURRIN: I didn't understand his evidence that he said he was not a member. He said he applied for membership.

JUDGE WILSON: Yes.

MR CURRIN: But he certainly didn't say he was not a member, with respect.

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JUDGE WILSON: He never said he was a member.

MR CURRIN: I understood that he said he was a member.

JUDGE WILSON: You produced a letter to him and said I have got a letter showing that you are.

MR CURRIN: That is correct, I did, but I certainly understood his evidence that he said he was a member, but certainly Diali said unequivocally that he was a member of the African National Congress. I think also, and let's assume that they were not members, they were certainly supporters. They were supporters of the liberation movement, and there can be absolutely no doubt that they were supporters of the objectives.

JUDGE WILSON: They wanted the assistance of that movement to help theirs. That was their evidence.

MR CURRIN: That was part of their evidence, but didn't the evidence go further than that? My understanding of their evidence, was that they understood quite clearly, that there was no prospect of getting their chief back in office for as long as the then Bophuthatswana Government was in control, and their struggle went further than just the local conflict.

JUDGE MGOEPE: Mr Currin, I am just speaking for myself. I am not so sure that they needed to be members of the ANC after all, you know. Because they were members of an action committee, which was involved in politics, and to me politics does not necessarily mean national politics. It is Baphokeng politics, the politics of the tribe. That is a political issue. I would have thought that they don't need to prove that they are members of an ANC for them to get amnesty. Assuming that all other requirements are met, surely even if they are not members of the ANC, they don't

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need to be members of the ANC. If that assists you.

MR CURRIN: That would assist me if the Committee is saying that the action committee is a publicly known organisation.

JUDGE MGOEPE: It is.

MR CURRIN: Then I accept that we need not then take the point of the liberation movement any further.

JUDGE MALL: Your link ... (intervention).

MS KHAMPEPE: Mr Currin, that is the evidence of the second applicant.

JUDGE MALL: Their link with an organisation such as the ANC, is a tenuous link, thousands of people can come and say I am a member of the ANC. The fact that they claim to be members of the ANC does not automatically mean that whatever they are doing has been sanctioned by the ANC or is part of the ANC's decisions and so on. They may be members of the ANC and may belong to all kinds of other organisations we well, and do things in pursuance of the requirements of those other organisations.

MR CURRIN: I accept that.

We can then move off that particular point and refer to section 23 which is the section and I would just like to read the paragraph:

"Whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria."

Now before referring to those criteria, I would just like to make the point that quite clearly, the Act is worded in a way that those criteria are not pre-emptory and that all that needs to occur, is that when one is considering whether PHOKENG HEARING AMNESTY/GAUTENG

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or not an offence is associated with a political objective,

one needs to have reference to those particular criteria. If the applicants happen to fail, if they happen to fail in your minds, in respect of - with reference to one of those criteria, we do not understand that the application will be fatal. With that in mind, we would like to go through the various sections within 23 and argue our case as far as the offence is concerned, being an offence associated with a political objective.

In the first instance, we are dealing with a common law offence, which was associated with a political objective. In other words, in our view we need to satisfy you that the murder was associated with a political objective and not that the murder was in itself a political crime.

If we have reference to motive. We considered the evidence of the two applicants in trying to establish motive. What we have gleaned and teased out of that evidence, is that they both had as their motive - at least part of their motive, a fear of being arrested, tortured and possibly being detained.

Boy Diali added to that and said that he felt it was necessary to get rid of Glad Mokgatle in order to show the Bophuthatswana Government, and in particular, the President, that they were serious.

While talking about motive, dealing with motive, I think it is also necessary to emphasise that in the context of motive we believe there is the provision in the Act that specifically says that one would be excluded if a murder was committed or an offence was committed for personal gain. We do not believe that there can be any question of personal gain being achieved by the two applicants in regard to the

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offence which they committed.

There is another very specific exclusion and that is out of personal malice, ill-will or spite directed against the victim. We do not believe that this crime was motivated by personal malice, ill-will or spite.

We do not believe that it is necessary, as we understand the Act, to persuade you that the murder was committed with a political motive. The Act does not place that requirement on the shoulders of the applicants. We need to show that the offence was associated with a political objective.

Had that been the requirement, the Act would have said quite unequivocally that the offence would have - should be an offence with a political motive.

With regard to context. The offence was committed without any doubt, in the context of political uprisings, in the context of certainly a political uprising or disturbance. If one looks at the very broad context of political uprising, we think one can go beyond just the uprising right here, and say that it was also part of - there was a greater uprising, namely within Bophuthatswana, in the context of reincorporation in South Africa. But then of course, there was the particular uprising in Phokeng. So certainly, Sir, and members of the Committee, there can be no doubt at all that the context in which the murder was committed, was in itself a political context. And we think that is important, in fact, critical.

Subsection (3) talks about the legal and the factual nature of the Act, including the gravity of the Act. Now we know the legal nature of the Act. We know that it was murder. We know the factual nature of the Act. We have

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heard detailed evidence about how the murder was committed.

We are not going to go through that evidence, but we realise that we need to address you on the question of gravity.

There can be no doubt whatsoever, that this murder was a grave crime, and that it was a brutal crime. We won't try and persuade you otherwise. Having said that, when one refers to gravity in our view, one does it in the context of the particular crime. In other words, one can't necessarily say that because it was a murder it was more grave than it would have been had it have been a serious assault. Gravity must be considered in the context of the crime. So we look at gravity in the context of murder. We would argue that in certain circumstances a murder could be so grave that it would play a very, very significant role in your minds in possibly concluding that an application should not be granted.

In this particular case, however, we believe that there are a number of factors and we would like to call them for the sake of convenience, we would like to refer them to mitigating factors. Factors that mitigate against the gravity which we concede and factors which we believe you should take into consideration when deciding on the applicants' fate.

First of all, it is quite clear that the murder was not premeditated.

JUDGE MGOEPE: Sorry, Mr Currin, do you want to convince us that this matter was not grave?

MR CURRIN: No. No, Sir, I have already made the concession that the murder was grave.

JUDGE MGOEPE: So what are you wanting to do now?

MR CURRIN: We are wanting to say to you that one could

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argue that many crimes are grave, and we are not trying to

say this was not a grave crime, but we are saying to you that when you consider that particular paragraph, in deciding whether or not to grant the application, there are certain factors that you should take into consideration, when looking at gravity. We would like to mention some of those factors, which don't take away the gravity. I am not sure that gravity is an absolute term. We are saying that it is not an absolute term. We are trying to illustrate to you that there are factors which you should take into consideration when considering the gravity, without saying it wasn't grave.

The first one is, as I have already indicated, that the murder was not premeditated. Having said that, we ask ourselves: why was this murder committed. We have heard that it was committed in extraordinary circumstances. It was committed against a particular political background, immediate circumstances and we have heard also about the crazy mad frenzy that was happening at the time. We have heard about the anger, we have heard about the frustration. We also know from the record, from the judgment on sentence, that there was evidence dealing with de-individuation.

We would submit that that is also a factor that should be taken into consideration as a mitigating factor in the context of gravity.

JUDGE MALL: De-individuation is a factor you are take into account where the accused had gone into the box and given an explanation of how they were affected by joining a mob - you understand - and lost control of their own emotions, were carried by the emotions of the mob. Now I don't have the record of the proceedings to find out whether the accused

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gave that evidence or not. But I think in the absence of

any evidence of that kind, de-individuation remains just another term, a political term, which might be valid in the appropriate circumstances.

MR CURRIN: We accept that. Like you, we had extreme difficulty in fact, we did not succeed in all our attempts to get a copy of the proceedings, and of the judgment on the merits which would have helped. We accept that there was no evidence, direct evidence led on the de-indivudation. But having said that, we did hear evidence about how an objective to get the keys, an objective to take hostage, suddenly almost unexplicably on the spur of the moment, developed into a frenzy where people then committed a crime which they had not considered, which they had not planned to commit shortly before. We are saying that that is a factor which should be taken into consideration, and probably that factor, if one leaves out the de-individuation, relates to the point we have already made about there being no premeditation.

ADV DE JAGER: Mr Currin, that is a problem I have got. If they have applied for amnesty for abduction, it is clear about the political associated motive for abducting the late Mr Glad. But, they told us, and you said it is not a premeditated murder. When did they form the political objective or an objective associated with a political motive for murder. If they acted in a frenzy then they couldn't have formed a political motive at that stage. I would like you to address me on that because that is causing me personally a problem.

MR CURRIN: I understand that problem, but I do not believe that it should be a problem because there is nothing in this PHOKENG HEARING AMNESTY/GAUTENG

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Act that says that an applicant must have a political

objective in relation to the offence. You will find that nowhere in the Act. What the Act says is that the offence must be associated with the political objective. And what was the political objective? With what political objective was the offence associated? The political objective was to obtain keys of this building and this entire structure. That was the immediate political objective that was verbalised and motivated by the applicants and others. We, as lawyers, know the significance of keys in the context of law. We know that there was a time in Roman Law when they spoke about, in common law when they spoke about the transfer of property through the handing over of keys. That is really what the keys symbolised. Their political objective, their associated political objective was not only to get keys, and we heard that, it was to take over the - to take back the affairs of the tribe, to take back governance of the tribe. To take back that power of the tribe of their own people. That was the political objective. The question that we need to ask and in respect of which we need to satisfy you, is merely whether the offence which we say was an ordinary common law offence, is associated with that political objective. And not that the murder had that as its objective. We have never argued that, we have never tried to lead any evidence that that was the objective of the murder. We don't believe that that is a requirement of the Act.

JUDGE MGOEPE: But Mr Currin, I must confess that did not make that impact. On the face of it you are right. You associate with it at a lower - the threshold is a bit lower than with objective to. The threshold is lower but then the

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consequence, the logic of your argument, as I understand it, is that at the time when the person committed that offence,

he need not - for example, he need not have had - he need not have committed it with the intention to achieve a political objective. Even if that kind of intent and purpose was absent at the time when you committed the offence, we can later on look objectively at what he has done, and if in our evaluation what he has done can be associated with a political objective, even though the individual at the time did not entertain any political objective, then you will say that that will be correct.

MR CURRIN: That is precisely what our interpretation is, and we believe that it is the correct interpretation. In fact, if one has reference and we do have copies of articles which we could hand to you, articles that deal with extradition in political offence - in the instance of political offences, where there is debate and discussion around a political offence and what they refer to as a related political offence, and they refer to an offence which is connected with the political objective. That crime, where they talk about that offence, which is connected with the political objective, is an ordinary common law crime. It is not a political crime, it is not a crime that was necessarily committed with a political objective, and there are instances where in such cases, extradition has been refused on the basis that in the broader sense it is defined as a political crime.

So we are saying that this argument is not a new one, but there is such a thing as an offence associated with the political objective. Take terms for example, like motive. It strikes one that nowhere in the Act do they refer to

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political motive.

JUDGE MGOEPE: Thank you, Mr Currin, thank you, I really

thank you very much. I didn't realise this.

MR CURRIN: Thank you.

ADV DE JAGER: Just complete it on that point. It is one of the factors that could have been taken into consideration if you look at 3(a). It is only a factor for interpreting whether there was a - it is not the only factor, it is one of the factors to consider.

MR CURRIN: Yes.

ADV DE JAGER: Thank you.

MR CURRIN: That is correct, one of the factors. But the one, the next one which we really turn to then really, is you have to consider - if one looks at (d) - the objective of the offence and in particular, whether the offence was directed at a political opponent or State property or personnel or against private property or individuals. Now we have already argued that in our view the political objective was to regain control and power over their own affairs. That objective was certainly aimed at a political opponent. There is evidence of that and I think that is indisputable.

The next aspect to which you need to have reference, is whether the act, whether the offence was committed in the execution of an order or on behalf of all, with the approval of an organisation, institution, liberation movement or body of which the person who committed it was a member or agent or a supporter.

Now I have already heard you on an issue which is similar to that one, but not identical. All we would like to say there is that the two applicants were either members

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or supporters of a liberation movement. It is not our case - we would like to emphasise - that the offence was

committed either as an order or on behalf of or even with

the approval of the tribal council or the action committee. It has never been our case. Our case is though that it was committed or the case of the applicants, that it was committed with the approval of the political organisations to which they belonged.

Now we have ... (intervention).

JUDGE WILSON: (Indistinct - microphone not on).

MR CURRIN: I don't see that the Act refers to prior approval. It refers to approval. What I would like to submit is that it is common cause that the African National Congress had a particular policy with regard to people they referred to as collaborators.

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: No, that was - I am saying, and I think it is common cause, that was the policy of the African National Congress. That doesn't necessarily relate to the mindset of the people that committed the offence.

What I am saying, Judge ...

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: I am talking about the removal of collaborators. I believe it is common cause that that was a policy of the African National Congress. Is it an issue in respect of which you ...

Sorry, Judge, is there something ...

JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: No, I am not saying that, Judge, with respect, you are not hearing me. Maybe I am not expressing myself well enough.

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JUDGE WILSON: (Indistinct - microphone not switched on).

MR CURRIN: For a particular purpose. For a particular

purpose. Whether it was the intent or not, they committed an act which removed from society a person who was perceived as a collaborator. That is a fact. That is what actually happened. Now having done that, having done that, the question is: that act and other similar acts, was there general approval of that type of act in the political context that we experienced in this country at that particular time. That is all I am saying.

JUDGE MALL: Mr Currin, I think that you are travelling into very deep water. To start off, there is no evidence as to what the policy of the ANC is. You can't take judicial notice of such things. But be that as it may. Surely, it is not - I am going back to what I mentioned to you earlier on. Let's forget about this ANC story. If you read this (e) further on, it says

"In the execution of an order of or on behalf of ..."

And then it goes on -

"... or body of which the person who committed the act was a member."

MR CURRIN: "... or agent or supporter".

JUDGE MALL: Yes. Didn't they on their version, didn't they commit this - the applicants, when they committed this, was it not on behalf of or the body - were they not members of the body known as an action committee?

MR CURRIN: They were.

JUDGE MALL: Yes.

MR CURRIN: They were.

JUDGE MALL: Yes.

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MR CURRIN: But it wasn't committed with the approval of the action committee.

JUDGE MALL: Sorry?

JUDGE MGOEPE: It was on behalf of the body of which they were members.

MR CURRIN: Okay. If your understanding of the evidence is that, that they committed it on behalf of the action committee, I will not take that any further.

JUDGE MGOEPE: It was ten of them. Almost the whole, the full committee membership of the committee.

MR CURRIN: If you will accept that that is the case then I will not take that point any further.

JUDGE MALL: Yes.

ADV DE JAGER: And to add to that, the second defendant, the second applicant gave evidence that they had a sort of discussion and that the majority voted in favour of killing. MR CURRIN: That is correct. If one accepts that in those circumstances decisions were taken. And if that is the conclusion that you have come to, I will accept that and not take the point any further.

JUDGE MALL: That eliminates the argument of the de-individuation once and for all, doesn't it?

MR CURRIN: It would do.

The next issue, in respect of which you need to have reference is the relationship between the offence and the political objective pursued. And that would then obviously be the associated political objective, which is referred to in the Act. In particular, the directness and proximity of the relationship. I would like to pause there for a moment. In relation to proximity between the offence and the objective. The proximity is direct. The proximity could

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hardly have been closer. The proximity, the offence associated with the political objective was aimed at the person who represented in this local community the

Government of Bophuthatswana. It was directed against the person who almost symbolised the power which had been taken away from the tribe. We believe that proximity could hardly been closer.

The section goes on and then refers to the proportionality of the act to the objective pursued. Again, we would imagine that we need to deal with that in some detail.

We have already dealt with the associated political objective. Namely, regaining governance, power over their own affairs. We ask ourselves: what was done in order to do that, in order to achieve that? Regretfully, a life was lost. Regretfully, the liFe was lost in a brutal fashion and caused pain to this community, and we have heard about that pain.

Having said that, and not in any way wanting to diminish that pain, and the seriousness of the offence, one can say that it is almost a miracle that many people were not killed in that immediate conflict. That one person was murdered during an attempt to regain control of their own governance.

Furthermore, one needs to see it in the context of their own suffering as a people. The context of the oppression, of the exploitation, of the brutality, of the torture which they suffered at the hands of the security forces under the control of the then government.

In that regard we have been told that the Human Rights Violations Committee will be here tomorrow, to begin to take PHOKENG HEARING AMNESTY/GAUTENG

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statements from the people about that suffering.

We are saying that if one looks at the killing, at the murder in that context and in the context of what the action

committee which had been elected and which represented the people, set out to achieve, that we do not believe that the offence was disproportionate to that objective.

JUDGE MGOEPE: No, I think the difficulty with proportionality is this; we know that possibly there was a political objective sought to be achieved, and as a way of achieving whatever they wanted to achieve, they wanted to get the keys. But the question of proportionality arises in this context: do you, in order to get the keys, do you have to kill a person. You see, it arises in this context. Couldn't you just get a sjambok, for example, and just hit him and hit him until he tells you where the keys are, rather than kill him?

MR CURRIN: We accept that, and we accept that it wasn't necessary to kill him to get the keys. But what we need to do is, we need to decide as we understand the Act, whether -we have to look at the proportionality of the Act, to the objective that was pursued. The objective that was pursued - your argument will be correct, with respect, Judge, if the objective that was sought to be achieved, was to get some keys. But that was not the objective. It was much wider than that. You yourself, I think, asked a critical question at one stage, when you enquired as to the symbolism of the keys, and control of this building and the entire administration. Certainly, if it was their objective to get the keys, to get keys, to get any keys, and that is it, it would have been disproportionate and we could never even try to address you on that. Precisely, precisely. But it goes PHOKENG HEARING AMNESTY/GAUTENG

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so far beyond that, and we are saying that the objective, the associated political objective was enormous. It was great in the context of the minds of the people. In that

context we say that it was proportionate.

MS KHAMPEPE: Mr Currin, I am still not with you. What then was the objective, the broader objective that you are referring to, which was in the minds of the two applicants?

MR CURRIN: The broader objective was to regain control of a building and of an administration which belonged to the tribe, to retain governance of their own people. We have heard that the group that governed, that had control of this building, did not have the support of the people.

We have also, I think, heard from the responses during the course of these proceedings, that there were certain sentiments, and they become quite obvious, and I think that those sentiments certainly support the concept that that administration was by no means a popular administration.

JUDGE WILSON: Haven't we got the very moving evidence of one of the sons of the deceased, about how the family was treated by other members of his tribe?

MR CURRIN: Precisely, and that of course makes the point extremely strong here.

MS KHAMPEPE: But was it necessary to decide to hold the person hostage in order to gain control?

MR CURRIN: If all they had done was taken the person hostage, in order to get the keys and to gain control, I don't think we would be debating the issue at all. The only reason why I think we are debating it, with respect, is because they went further than that and they killed him. We concede that that was not necessary, and that was not the only way to get the keys, but seen in the context of what PHOKENG HEARING AMNESTY/GAUTENG

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they were really trying to achieve, we say it wasn't disproportionate.

We would also like to just briefly refer you to

subsection (4) of section 20, which says that

in complying the criteria contemplated in subsection (3), the Committee shall take into account the criteria applied in the Acts repealed by section 48.

Now we know that you have been given a document by Mr Kleynhans of the Department of Justice that enlightens you in some respects about the way in which these Acts were repealed. We have prepared a document which we would - we are not submitting as evidence. We are merely submitting it to you as information regarding how those Acts were applied in the past. We have taken the liberty of doing that, because from 1990 up until last year, I was involved in that process and on the off-chance that the document may be of some assistance to you, we are handing it up.

(Indistinct - microphone not switched on).

MR CURRIN: I was afraid ... (intervention).

ADV DE JAGER: And Mr Currin, I am not in posession of a document by Mr Kleynhans. I believe he had been subpoenaed or asked to appear here. There was no such document handed in at this hearing.

MR CURRIN: Did you not get the document? We gave the legal representative of the Commission - I know that he got a copy of the document. What happened after that I certainly have absolutely no knowledge of at all.

ADV DE JAGER: It is not evidence in this hearing.

MR CURRIN: It was not submitted as evidence, it was also just submitted as general guidelines, because I don't think it is intended in the Act that it should be evidence. It is PHOKENG HEARING AMNESTY/GAUTENG

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merely that as Committee members you should have reference to the way in which those Acts were applied, and he did submit a document. When you receive that document, I would

just like to mention two points which I think are necessary. That is, he refers to many murders that were committed in respect of which people were "granted amnesty". Most of those that he referred to, were not granted amnesty in terms of those Acts repealed. They were either granted amnesty in accordance with the record of understanding or in accordance with special reprieves granted by the State President, but not through the Amnesty Committee. And I just draw your attention to that, because I think when you get the document you should have that in mind.

JUDGE MALL: What is the name of this document? What is it entitled?

MR CURRIN: I have a copy somewhere. I was given a copy. It is called the South African Amnesty Process. There it is, and I am sure that my colleague has a copy. He has a copy, Sir.

JUDGE MALL: You say that this document will be of assistance to us?

MR CURRIN: I believe that the document which we would hand in, called History of the Indemnity and Amnesty Process, 1990 - 1995 may be of assistance to you.

JUDGE MALL: Thank you very much. We haven't got it, but we shall ...

MR CURRIN: There is another one. This is the one - that is Mr Kleynhans' document, and this is the one that we would like to hand to you. As I say, on the off-chance that it may be of assistance to you.

JUDGE MALL: Thank you.

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MR CURRIN: In conclusion, I would like to refer you to the preamble of the Promotion of National Unity and Reconciliation Act, and just, I think, highlight, if I may,

that when considering this application and others, and in particular when you have reference to the criteria set out in section 20, we believe that that reference must be informed by the preamble, which we also know comes from our Constitution. The objectives of the Commission, and certainly of your Committee, I believe, are as set out in the preamble to the Act. I would just like to record the sections that we believe are pertinent, we believe provide the paradigm in which you need to apply yourselves when considering the criteria. And they are, the Commission states that:

"The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society."

We have heard here today, and yesterday, but particularly today, how reconciliation could be served, has already been served by the presence of this Committee, but we believe could be served even further, if the two applicants are released and granted amnesty.

Furthermore, the preamble to the Act refers to:

"A need for understanding, not for vengeance ..."

And we have heard, we have witnessed understanding -

"... and need for reparation, but not for retaliation, a need for ubuntu, but not for the victimisation."

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It is that context, and that is what we believe what should inform you when you apply your minds to the criteria set out in the Act.

We thank you.

JUDGE MALL: Mr Mpshe, do you wish to address the Committee?

MR MPSHE ADDRESSES COMMITTEE ON MERITS OF APPLICATION

As it pleases the Chairman, Mr Chair.

First for record purposes, Mr Chairman, I want to state this pertaining to the record of the proceedings in the criminal trial; that attempts were made by myself with the assistance of the Johannesburg Regional Office to obtain a copy thereof, as well as assistance of other people, from Mafikeng, but this did not materialise. I just wanted this to be on record.

Mr Chairman, I do not intend to belabour this Committee with all the provisions of Section 20. Particularly, section 20(1) and section 20(2), unless if the Committee would like to hear me on any part or portion of the sections I have just mentioned. However, I would address the Committee with particular reference to section 20(3) thereof. Because in my mind I feel the criteria laid down herein are of utmost importance when considering the submissions made for the applications.

I will move straight, Mr Chairman, to subsection (b) thereof, which reads that:

"The offence was committed in the course of or as part of a political uprising, disturbance or event or in reaction thereto."

My colleague has indeed attempted to paint a picture of a political uprising nationally. But I am of the opinion that PHOKENG HEARING AMNESTY/GAUTENG

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in as far as Phokeng, in particular, is concerned, no evidence has been tendered that there was a political uprising in Phokeng. Because it is important that this be

established as the action committee was operating within the Phokeng area.

ADV DE JAGER: Wasn't there at least a political event? Should it be an uprising, can't it be an uprising or a disturbance or an event?

MR MPSHE: I would accede to the point that there was a political event, but I am commenting on what my colleague tried to expose, by going particularly to the political uprising. But I do concede that there was a political event.

As pertaining to subsection (3)(c), particularly -

"... including the gravity of the act, omission or offence."

Much has been said about circumstances that led to the commission of this brutal act. The Committee is requested to consider the gravity of this brutal act in relation to the circumstances prevailing then.

Mr Chairman, I am not satisfied or convinced that the circumstances that prevailed then should be used as justifying measures for the type of the brutal act. In that there were other alternative means at the disposal of the applicants, which means they could have made use of and avoid embarking on such a grave brutal act.

JUDGE WILSON: Do you agree, Mr Mpshe that this was entirely unforeseen? On the evidence before us, the only weapon that this group of ten men had, was one knobkierie, and that appears to have been the evidence led at the trial.

MR MPSHE: Judge, I agree that it was unforeseen at the PHOKENG HEARING AMNESTY/GAUTENG

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time when the applicants proceeded to the deceased's place. But one should not lose sight of the actual - although there is no evidence that the blow that was delivered by

Christopher Mokgatle is the blow that caused the death of the deceased, but all the same, I want to say this, that one should not forget that in his own testimony, he stated that when they were about to leave in the mini-bus, then he realised that this man was still alive, and there and then decided to kill him.

JUDGE WILSON: (Indistinct - microphone not switched on).

MR MPSHE: Yes, Judge, I agree, that is the evidence, but that does not in itself water down the gravity of the offence at all.

JUDGE MALL: In fact, it might be said that that was the gravity of the offence, isn't it? Isn't it so? That they actually killed the man simply because he was afraid that he would be identified. That is the gravity of the offence, isn't it?

MR MPSHE: Yes, Judge, I agree, that is so, that is so.

In respect of 3(e), I now referred to it. Reference has been made to the approval of the organisation, institution or liberation. My colleague has made it clear to this Committee that the applicants' case is not that the brutal act was approved or even sanctioned by the tribe, nor the action committee, but their case is that this was - this had the approval of the African National Congress. Then I find a problem in that submission, because the approval, if there was any approval by the ANC, came after the fact, then one finds it difficult to can link the sanctioning or approval of this act with the ANC.

It was further stated that what they did was on behalf PHOKENG HEARING AMNESTY/GAUTENG

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of the action committee. Still, I have a profound problem with that, in the sense that evidence is very clear that at the meeting held at the Roman Catholic Church, the intention

was to demand or ask for the keys, and to further perhaps hold the deceased hostage.

Now in as far as that is concerned, one has no problem in finding an approval, a prior approval of sanction of demanding the keys and perhaps even holding of hostage. The question of the killing or perhaps to use the most apposite word, the question of the murdering cannot be said to have been with approval of either the ANC - which is out of the question, it was after the fact - or the action committee, because the action committee never sanctioned the brutal murder.

JUDGE MGOEPE: Sorry, Mr Mpshe, I think we must decide whether we are talking about approval or on behalf of, because these two are different concepts. You see, if approval of means would mean there was - well, there was a go-ahead beforehand, but you see if you do something on behalf of somebody, you can do it without the knowledge of that person, without the approval of that person. Indeed, you can do it as I say, without that person knowing. You can just decide yourself that you are doing this thing on behalf of such and such a person. Now if this group of people, although initially they might have had the approval of the action committee to kidnap, if subsequently the ten of them wisely or unwisely - and we know in this case, unwisely - decided to act on behalf of, what is the problem about? You see, if they act on behalf of, they don't necessarily need the prior authorisation, because then you fall back to the concept of approval.

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MR MPSHE: Thank you, Judge, but in reply to that, I want us not to be forgetful of the fact that this action committee was or can be regarded as a body for political purposes, as

that is evident, and a meeting was being held, and that in such instances, where such bodies come together and somebody is authorised to do something, on behalf of that organisation or body, what is known as a mandate is given to the people. And it is not for the people, particularly where political inclinations are involved. It is not for them to decide for the masses outside the mandate given.

The point I am trying to make, is that the mandate was very clear, when a resolution was taken at the Roman Catholic Church, that we mandate you, we authorise you to go and collect the keys, and that was the mandate. So they went outside the mandate given.

JUDGE MGOEPE: There have been many people who were involved in the political struggle, on my behalf, without my authorisation. Some of them got involved in the struggle on my behalf even before I was born. On behalf of the masses, on behalf of the people, without prior mandate by the people. They waged the struggle on behalf of the masses, without first having had a meeting at the Roman Catholic Church, to get the mandate. This is what I am trying to explain; that when you act on behalf of, you don't need a mandate. At least in the concept that is being used here.

MR MPSHE: Well, Judge, on the basis of the explanation given now, I will rest my case there. I cannot take it any further.

Then I move to 20(f), 23(f), sorry, and directly to the aspect of proportionality. It cannot be disputed that the brutal murder is definitely not proportional to the intended PHOKENG HEARING AMNESTY/GAUTENG

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taking of the keys, as it is the evidence.

Much has been said about regaining governance of the Baphokeng people. Now one really finds it difficult to say

killing or murdering another to obtain a set of keys or a bunch of keys, can be regarded as being proportional. If governance was the issue, regaining was the governance of the issue, then one would simply pose a question and say the deceased was the chairperson of a tribal council. There was somebody who was in governance of the Baphokeng tribe then, who was then installed as the acting chief, one George Laboni. If then it was a question of governance, why was recourse not had to the chief then and not somebody under the chief, like it was done with Glad Mokgatle.

I want to make this submission then that the question of proportionality has not been satisfied by the applicants.

Thank you, Mr Chairman, that is all.

JUDGE MALL: Is there any reply from you, Mr Currin?

MR CURRIN ADDRESSES COMMISSION IN REPLICATION

Just two comments I would like to make. With regard to political uprising, I understood the evidence that there were a thousand people who had participated in a gathering on a particular day, that there was shooting of rubber bullets and tear-gas and so on. I would have thought that there was quite clearly a political uprising.

Secondly, also, just to reiterate and to put on record, that at no stage did we try to justify the act when we refer to gravity. My learned friend said that - suggested that we were trying to justify the act. But certainly, I think we made it quite clear, that we just believe there were certain factors that one could take into consideration as mitigating against the gravity, accepting that it was a grave and

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brutal crime.

In conclusion I am not sure that in my opening address that I formally requested you in the context of the facts

and the evidence and the argument, formally requested you to release on - and to grant the amnesty application on behalf of our two clients. And I just put that on record, that we would urge you to grant the application. We believe that we have provided sufficient evidence and motivation for the amnesty. Thank you.

JUDGE MALL: Thank you very much. This brings to an end the proceedings of this Committee today. The Committee will in due course consider the evidence and all the submissions that have been made on behalf of the applicants and on behalf of the State, on behalf of the Committee and in accordance with the provisions of the Act, will make known its decision when it is ready to do so.

I wish to place on record, the thanks of my Committee for the assistance that has been given to us by various people, that made it possible for us to work in an orderly fashion. Yesterday there was a report in the paper, in the morning, that there was some dispute or misunderstanding between people as to whether the Archbishop was going to sit on a particular chair or not and there was disagreement amongst members on the platform and so on. I honestly do not know where the reporter got that information from. He ought to have realised we all met for the very first time. We were not familiar with the setting. We did not know what the hall entailed, we did not know before we arrived what kind of seating arrangements needed to be made, and there was a little delay in organising these things, so that the work of the Committee could be done. I was disappointed to PHOKENG HEARING AMNESTY/GAUTENG

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learn that somebody saw it fit to report, that there were misunderstandings that caused this delay. If you will remember, we started very, very shortly after 10 o'clock. We

had intended to commence at 10 o'clock, but the delay unfortunately could not be avoided.

I also wish to thank this whole community that has sat patiently for the last two days and occasionally made known your feelings and your emotions, and I know that it is not difficult always to control one's feelings and emotions and powerful forces were at play. You have behaved very, very well. I thank you very much and I wish to remind you once again, that in the course of time the Committee which deals with the violations of human rights, will probably be sitting in this part of the world to consider representations by people who may have or who may desire to make representations to them, namely victims - not only the victims of this particular case, but victims of other political incidents and when that happens, I have no doubt you will be notified of the sitting of that Committee.

There may be some here who might not have felt courageous enough to publicly inform that they would like to make representations to us. To those who might want to yet make representations to this Committee, you may do so in writing as expeditiously as possible and I think that anybody who wishes to do so, should after we adjourn, contact Mr Mpshe or Mr Brink. They will give you the address to which you can send your written representations and it will be desirable if you do so within the next fortnight, without delay.

Once again, I wish to thank you very, very much, and I now bring these proceedings to an end.

PHOKENG HEARING AMNESTY/GAUTENG

MR MPSHE 171 ADDRESS

There is a meeting of the Human Rights Violations Committee tomorrow, and I am told that those who wish to give evidence or make representations to that Committee

should stay behind and give their details, the names and addresses to members of the Committee who will be here to receive them.

All right, that formally brings this meeting to an end. Thank you very much.

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