Amnesty Hearings

MS MTANGA: The next matter would be Joel Macord Makhanya, that's reference number 6627/97.

CHAIRPERSON: Who is appearing for the applicant? Mr Khweza. Are we ready to proceed with that one?

MR KHWEZA: Could you kindly put on record what we've done, what the Amnesty Committee has done as regards the notices to victims and implicated persons?

MS MTANGA: Thank you Chairperson. The victim concerned in this matter is a policeman. In the application the name was not given by the applicant because he was unaware of the details and in our investigations we discovered that the name of the policeman involved was Fanie Groenewald. We also further discovered that this Fanie Groenewald had since left the Police Services in KwaZulu Natal and he left and he is apparently somewhere in Gauteng. An advertisement was put up in the paper on the 7th March. I've got it here, a copy of the tear off sheet of the advertisement where he was advised about the hearing and notified about the date of the hearing but we have not heard from him. Further to that we also asked the witness protection unit in our office, the head Mr Mike Barnado to assist us trace him through Police Services and that also has not come up with anything so Mr Fanie Groenewald has not contacted us at all.

CHAIRPERSON: That's strange because usually an ex-policeman would receive some sort of pension or whatever and he should be on record because if he left the police he will still be liable to be called up as a reservist but it seems as though you've done everything in your power to try and trace him and we've had no response?

MS MTANGA: Yes Chairperson because the first stage of the tracing started at the police station and our contact person there was Inspector Shange who had given us all the details about Mr Fanie Groenewald and from there they were unable to assist us about the address where - his first address in Gauteng, they were unable to assist us on that.

ADV BOSMAN: May I just ask which newspaper the advertisement was placed in?

MS MTANGA: ...(inaudible) Star.

ADV BOSMAN: Thank you.

CHAIRPERSON: Yes he might have been a reader of the Beeld rather than the Star but - right are you ready to call the applicant?

MR KHWEZA: The applicant is here, Mr Chairperson.

CHAIRPERSON: Yes, he would give evidence in which language?

MR KHWEZA: He prefers Zulu, Chairperson.

JOEL MACORD MAKHANYA: (sworn states)

EXAMINATION BY MR KHWEZA: ...(inaudible)

INTERPRETER: The speaker's mike is not on.

MR MAKHANYA: I remember that it was in July 1991 although I do not recall the exact date. I was at my home in Umkomaas when I was telephoned by a comrade by the name of Bobbie Matabata. He was in Port Shepstone in Gamalaki. He requested that I should go collect them, he was in the company of two other persons. I proceeded to Gamalaki.

CHAIRPERSON: Just a moment, can you assist us here? You said you've been phoned by a comrade. Who was this comrade?

MR MAKHANYA: Bobbie Matabata.

CHAIRPERSON: And you referred him as a comrade. Did you belong to any political party?

MR MAKHANYA: Yes it was the African National Congress.

CHAIRPERSON: And he, was he also a member of the African National Congress?

MR MAKHANYA: He was also in the ANC as well as a member of uMkhonto weSizwe.

CHAIRPERSON: Where did you meet each other, how did you know each other?

MR MAKHANYA: I knew him because the guerrillas from the Umgababa area were based at my home.

CHAIRPERSON: Right, thank you.

MR KHWEZA: And you say the said Bobbie phoned you and what did he tell you?

MR MAKHANYA: He requested me to collect them from a certain house in Gamalaki but I do not recall the exact house but it was somewhere in Gamalaki. I collected them and on our way back we were stopped by the Police.

MR KHWEZA: You say Bobbie was with two other people. Do you know who were they?

MR MAKHANYA: It was Sonny and Dumakaba.

MR KHWEZA: Apart from telling you to fetch them did they say anything?

MR MAKHANYA: No they did not tell me any other thing.

MR KHWEZA: Proceed?

MR MAKHANYA: On the way back I was stopped by a policeman. I stopped and ...(intervention)

MR KHWEZA: Before we come to that did Bobbie and the other two gentlemen have anything in their possession?

MR MAKHANYA: They had bags.

MR KHWEZA: How many bags?

MR MAKHANYA: There were two.

MR KHWEZA: Then proceed?

CHAIRPERSON: Do you know what was in the bags?

MR MAKHANYA: Yes I do.

CHAIRPERSON: Did you know at the time when you picked them up what they carried in the bags?

MR MAKHANYA: Yes I did.

CHAIRPERSON: What was in the bags?

MR MAKHANYA: There were firearms, AK47s as well as handgrenades.

MR KHWEZA: Do you know what they were going to do with the bags?

MR MAKHANYA: As freedom fighters I knew that they would do whatever they were ordered to do with those firearms.

MR KHWEZA: Did you know where they got these bags from?

MR MAKHANYA: No I did not know because they would get these bags from time to time, maybe they had been given by some commander.

MR KHWEZA: And did you know where they were coming from, these bags?

MR MAKHANYA: They were from Gamalaki.

MR KHWEZA: To do what there?

MR MAKHANYA: They must have been involved in some activity that they were doing as guerrillas.

MR KHWEZA: Then proceed when the policeman asked you to stop, what did happen?

MR MAKHANYA: The policeman stopped me and requested to search the vehicle. He asked me to open the boot which I did.

MR KHWEZA: Who was driving this vehicle?

MR MAKHANYA: I was the driver.

MR KHWEZA: Who was the owner of the vehicle in question?

MR MAKHANYA: It was mine.

MR KHWEZA: The policeman stopped you and you got off the motor vehicle and what happened?

MR MAKHANYA: I stepped out, he requested to search the vehicle and asked me to open the boot.

MR KHWEZA: And at that time where were the other three gentlemen?

MR MAKHANYA: They were seated inside the vehicle.

MR KHWEZA: What type of vehicle was that?

MR MAKHANYA: It was Ford 3 Litre.

MR KHWEZA: Was it a van, was it a kombi or was it just a private car?

MR MAKHANYA: It was a private car.

MR KHWEZA: So when this policeman was searching the boot or was looking at the boot, the other three gentlemen were remaining, sitting inside the vehicle?

MR MAKHANYA: Yes they were inside the vehicle.

MR KHWEZA: And what happened?

MR MAKHANYA: I then opened the boot and there was nothing in there except for a cylinder head. I then closed the boot. He then proceeded towards the front door.

MR KHWEZA: Then what happened?

MR MAKHANYA: As I was the closing the boot I heard a gunshot going off.

MR KHWEZA: What happened thereafter?

MR MAKHANYA: Then Bobbie ordered me to drive, proceed.

MR KHWEZA: Do you know who shot this policeman?

MR MAKHANYA: Yes, it was Bobbie Matabata.

MR KHWEZA: What happened to the policeman when he was shot?

MR MAKHANYA: I did not see, I just saw him stepping backwards at which point I got into the vehicle and drove off.

MR KHWEZA: And proceed, what happened?

MR MAKHANYA: I then drove towards the direction of Durban and certain cars started chasing us.

MR KHWEZA: Proceed?

MR MAKHANYA: We encountered a road block somewhere near ...(indistinct) when we did not stop and the police started shooting at us.

MR KHWEZA: Who fired the shots at that stage?

MR MAKHANYA: The police shot at us and the people inside the vehicle exchanged fire with the police.

MR KHWEZA: Proceed?

MR MAKHANYA: We drove on and as we approached Umtwalomi the car was hit by a shot so we could not proceed anymore.

MR KHWEZA: Then what happened?

MR MAKHANYA: We then alighted the vehicle and ran towards the sugar cane fields. We then took separate directions and that was the last time I saw them.

MR KHWEZA: Do you know what happened to Bobbie and the other two gentlemen?

MR MAKHANYA: I learnt that Sonny Majosi was arrested and that Duma was shot and killed from a helicopter. Bobbie was shot and injured, he was taken to King Edward where his legs were amputated.

MR KHWEZA: And the other gentleman, what happened to him?

MR MAKHANYA: Sonny was arrested.

MR KHWEZA: Do you know the outcome of ...(intervention)

CHAIRPERSON: I think you've given us Sonny's surname a moment ago, what's his surname?

MR MAKHANYA: Majosi.

MR KHWEZA: You understand that he was later apprehended and do you know what happened to him eventually?

MR MAKHANYA: I just heard recently that he has been released.

MR KHWEZA: When was he released?

MR MAKHANYA: I think it was around December last year.

MR KHWEZA: Did Bobbie and the two gentlemen tell you on the day in question as to what they were going to do?

CHAIRPERSON: Sorry, before we come to that, while we are dealing with him being arrested, he was then charged and convicted, is that correct?

MR MAKHANYA: That is correct.

CHAIRPERSON: Was he the only accused or was Bobbie also charged?

MR MAKHANYA: He was taken to hospital and he was under police guard but he escaped.

CHAIRPERSON: And what sentence did Sonny get?

MR MAKHANYA: I'm not certain but I think it was around 30 years imprisonment.

MR KHWEZA: Now coming to the contents of the bag in question, did you know what Bobbie, Sonny and the other gentleman were going to do with this bag?

MR MAKHANYA: I would say they normally had firearms so that they would be able to execute whatever duties they were ordered to.

MR KHWEZA: You told the court that prior to this incident you were staying with these three gentlemen. Since when did you stay with these gentlemen?

MR MAKHANYA: Since 1990.

MR KHWEZA: Why were you assisting these gentlemen to escape after they had shot the police officer in question?

MR MAKHANYA: I was aware that the police would be after us therefore we had to flee and the people were still returning from exile and it was proper that we should leave the scene.

MR KHWEZA: At the time when this incident took place you were a member of the ANC. Did you understand the position of the ANC regarding the armed struggle?

MR MAKHANYA: Yes I did although I cannot recall exactly whether at that time the armed struggle had been suspended or not but I think it had not been.

MR KHWEZA: Did you know who had given the orders to Bobbie, Sonny and the other gentleman to carry out the operation in question?

MR MAKHANYA: Bobbie was in charge of those guerrillas and he reported to somebody I did not know but he was the person in charge of the other persons.

MR KHWEZA: And as a person who was staying with these gentlemen what was your specific role in the whole set up?

MR MAKHANYA: I had also been trained inside the country. As an older person I used to transport them to wherever they needed to go.

MR KHWEZA: If you were to be specific, what goal were you aiming to achieve with this operation, what objective were you aiming to achieve?

MR MAKHANYA: We were still fighting for the liberation of our country when this incident took place.

MR KHWEZA: When this incident took place did you regret what you were doing?

MR MAKHANYA: No, I did not have any regrets.

MR KHWEZA: Why?

MR MAKHANYA: Because at the time we were still oppressed and the police were still harassing, shooting at us.

MR KHWEZA: So what did you want to achieve with your act?

MR MAKHANYA: We were fighting for our liberation.

MR KHWEZA: I have no further questions, Chairperson.

NO FURTHER QUESTIONS BY MR KHWEZA

CHAIRPERSON: Any questions?

MS MTANGA: I have no questions thank you Chairperson.

NO QUESTIONS BY MS MTANGA

CHAIRPERSON: Questions from the Panel?

ADV BOSMAN: Yes thank you Chairperson.

Mr Makhanya, on page 1 of your application form where it's asked from you if you are or were an officer, officer bearer, member, supporter of any political organisation, you wrote ANC/MK/SDU. Were you a member of an SDU, an MK member?

MR MAKHANYA: I was a member of MK.

ADV BOSMAN: And who was your commander, was it also Bobbie?

MR MAKHANYA: It was Bobbie.

ADV BOSMAN: And then on page 8 of the papers, if your legal representative could perhaps show it to you, paragraph 4, you state that, in the last two lines

"They jumped in the car with some bags which I did not bother to find out what they were carrying. I drove back to Umgababa."

Did you know that these were firearms at that stage?

MR MAKHANYA: Yes I did know.

ADV BOSMAN: When did you become aware of it exactly?

MR MAKHANYA: I knew that when they carried bags that there would be firearms in them, nothing else.

ADV BOSMAN: So the reason why you did not ask was because you knew, is that what you are saying?

MR MAKHANYA: Yes I did know it.

ADV BOSMAN: Thank you Chairperson.

ADV SIGODI: Was your car found after you ran away?

MR MAKHANYA: Yes it was found.

ADV SIGODI: Then was this your own car that registered in your name?

MR MAKHANYA: Yes it was registered in my name, I had recently bought it in Hillcrest.

ADV SIGODI: Now why were you not arrested together with the others?

MR MAKHANYA: I escaped and I hid under a bridge.

ADV SIGODI: No but surely the police would be able to trace the owner of the car back to your own address? Why were you not arrested?

MR MAKHANYA: The police were looking for me, I skipped the country.

ADV SIGODI: So after this incident you left the country. Where did you go to?

MR MAKHANYA: I went to Transkei and I was transported there by some attorney. I remained in Transkei until 1996.

ADV SIGODI: Okay thank you Chairperson.

CHAIRPERSON: Do you remember that you've made an affidavit on the 25th January this year?

MR MAKHANYA: Yes.

CHAIRPERSON: You've been referred to that affidavit and I wish to refer you to paragraph 4, page 8 and I'm asking you this question because you told us that the other people were staying with you for almost a year before the incident, is that correct?

MR MAKHANYA: That is correct.

CHAIRPERSON: Now why did you state in this affidavit

"I can only remember one by the name of Duma who died on the scene of this incident which will be discussed below."

MR MAKHANYA: When I wrote the affidavit I had not as yet learnt their full names because at the time we used to call them by their code names but now I do know their full names were Sonny Majosi and Dumaklaba.

CHAIRPERSON: Who told you about their full names now, in this preceding two months?

MR MAKHANYA: I heard from comrade Sithole.

CHAIRPERSON: And another thing

"I did not see who was shooting but I saw this white traffic officer taking a few steps backwards."

Now you've told us that it was Sonny who fired the shot - not Sonny, it was Bobbie who fired the shots. How did you come to know that at this stage?

MR MAKHANYA: I realised that it was him because the policemen opened the front door where he was seated.

CHAIRPERSON: But why didn't you realise that on the 25th January when you made the affidavit?

MR MAKHANYA: I do not recall that I did not mention it. If that is the case I must have missed it but with regards to who fired the shots, I assume that it was Bobbie because he was the person who was sitting in front.

CHAIRPERSON: Right, perhaps I should address this to your attorney. You're only applying or your client is only applying for amnesty to assist them to escape, he is not applying for attempted murder?

MR KHWEZA: Yes that is correct.

CHAIRPERSON: It's your contention that what happened there was unforeseen, he didn't associate with it and he didn't foresee that a policeman could be wounded or killed?

MR KHWEZA: That is correct, Mr Chairperson.

CHAIRPERSON: Thank you.

CHAIRPERSON: Sorry, and you're also asking amnesty for the transporting of illegal weapons?

MR KHWEZA: Yes that is correct, Chairperson.

CHAIRPERSON: Any other directly connected offence with the transporting of the illegal weapons and the assisting, there's nothing else you want amnesty for?

MR KHWEZA: There's nothing else besides that.

CHAIRPERSON: Thank you. Any further questions?

MR KHWEZA: I have no further questions.

CHAIRPERSON: Any further witnesses?

MR KHWEZA: No other witness.

MS MTANGA: I will not be calling witnesses, Chairperson.

CHAIRPERSON: Would you like to address us?

MR KHWEZA IN ARGUMENT: Thank you Mr Chairperson. This is a clear and straightforward matter. The applicant has disclosed the whole truth regarding the incident in question. Although there are some minor contradictions regarding his vive voce evidence when compared to his affidavit, the applicant did not at any stage of the proceedings fail to disclose the relevant facts in this application.

From what the applicant has told this house, it is clear that the applicant knew exactly what he was doing, was associated with a particular political objective. The applicant knew that his comrades were in a political mission and therefore he saw the need to assist them in escaping after the police officer in question was shot at. Mr Chairperson, it's my submission therefore that the applicant has complied with all the requirements as set down in the Act and I submit therefore that the applicant is a suitable candidate to be granted amnesty. Those are my submissions, Mr Chairperson.

CHAIRPERSON: Thank you. Anything you wish to add?

MS MTANGA: No Chairperson, I'll leave the matter in your hands.

NO ARGUMENT BY MS MTANGA

CHAIRPERSON: Any questions from the Panel? Thank you Mr Khweza, we will in due course let you know what we've decided

to do. Thank you. Alright, is that the roll for the day or is there anything that we could carry on with?

MS MTANGA: That's the roll for today, Chairperson.

CHAIRPERSON: I see, I think it's the members of - what are they called, the Correctional Services? We're proceeding tomorrow, would you be in a position to have the applicants here at 9 o'clock tomorrow? Would it be possible? Anybody here from Correctional Services? Ask them whether they'll be in a position to have the applicants here tomorrow by 9 o'clock. Would it suit us all if we could start at 9 o'clock tomorrow? We're adjourning until 9 o'clock tomorrow morning.

WITNESS EXCUSED