MR DEHAL: Mr Chairperson, the second applicant will testify in Zulu and may he be sworn in?
TSUKU TSHIKA: (sworn states)
EXAMINATION BY MR DEHAL: Thank you.
CHAIRPERSON: Mr Dehal, if you - I'll leave it to you but if you've prepared a statement you could hand it in, I assure we wouldn't take recognisance of what's not relevant in this but it may assist you in leading and it may assist us in dealing with the matter.
MR DEHAL: Mr Chairperson, I'm pretty sure it will assist a great deal if I were to hand the statements. Could I ask for a short adjournment at this stage so I could clean it up the best I can, namely to delete the correct aspects in consultation and not the others. I did not intend to hand it in so once that's prepared I could send it to you in chambers and see whether we've got ...(intervention)
CHAIRPERSON: Yes, if possible I thought we may be able to finish before lunch time with the evidence, I don't want to delay things.
MR DEHAL: I'd be at most five minutes.
CHAIRPERSON: Okay, thanks.
MR DEHAL: Thanks.
CHAIRPERSON: Would it shorten the proceedings if you use the statement instead of the oral evidence?
MR DEHAL: It would indeed, yes. Rather, it would help to follow it from your perspective, thank you.
COMMITTEE ADJOURNS
TSUKU TSHIKA: (s.u.o.)
MR DEHAL: Thank you.
ADV BOSMAN: For the record then that would be Exhibit B then?
MR DEHAL: Indeed.
CHAIRPERSON: As far we could grant forgiveness, we're forgiving you.
MR DEHAL: Thank you. The applicant has been sworn in I presume?
CHAIRPERSON: Yes.
EXAMINATION BY MR DEHAL: Thank you. Mr Tshika, you are the second applicant in this matter. You do know the first applicant do you not? He was your commander for these operations that we are dealing with today, correct?
MR TSHIKA: Yes I do.
MR DEHAL: Your application for amnesty is contained within this bundle on pages 12 to 18. If I may just take you to your copy of the bundle, that is your application, you confirm that?
MR TSHIKA: That is correct.
MR DEHAL: Do you see that throughout your application given the ...(indistinct) of information you had, namely the absence of the indictment, you could not give much information about the dates of the incidents, the various incidents in it's individual detail, the persons who were injured, the names, places, etc, correct?
MR TSHIKA: That is correct.
MR DEHAL: But what I see you did is that on page 13 you referred to - you may look at my copy because we're seated next to each other. On page 13 you refer to Durban and Newcastle incidents. So that encompasses the application, your general application for amnesty for all those incidents in Durban and Newcastle, correct?
MR TSHIKA: That is correct.
MR DEHAL: And when in the proceedings paragraphs you dealt with convicted of Terrorism Act No, that of 1982, were you referring to the indictment itself and not just the one count of terrorism but all of those counts you regarded them as terrorist activities as viewed by the then government?
CHAIRPERSON: Well he is referring to the court case, so he is incorporating at least the acts referred to in the indictment.
MR DEHAL: Thank you. That was the point being made, thank you.
Yes and then generally, in the last paragraph, you say on page 14, paragraph 10(a) that your political objective sought to be achieved was to liberate the oppressed majorities, to overthrow the racist apartheid government and to put into power non-racial democratic elected government, correct?
MR TSHIKA: That is correct.
MR DEHAL: And in the next paragraph, the last paragraph of this application, you say that the political opposition to the apartheid policy was being suppressed and you objectives of the ANC political terror acts was to change this?
MR TSHIKA: That is correct.
MR DEHAL: Now before we proceed with your statement, you've heard the testimony of the first applicant, your then commander, do you confirm the correctness of his testimony insofar as it relates to you and insofar as it relates to the counts for which you seek amnesty?
MR TSHIKA: That is correct.
MR DEHAL: Mindful of course of the fact that today we are dealing only with the two incidents, the attack on oSizweni Police Station on the 10th October and the explosion at Glencoe railway station in Dundee, will you please proceed through Exhibit B, you statement, and deal with those? I think you have a copy there in front of you? Can I take you through that statement?
MR TSHIKA: Yes.
MR DEHAL: Firstly, these two operations are operations that you personally participated in, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: Secondly, in the oSizweni Police Station operation you carried out that operation under the command of the first applicant and with one Tembinkosi, correct?
MR TSHIKA: That is correct.
ADV BOSMAN: May I just alert our sound technician that I have no sound here please? Thank you, you may proceed.
MR DEHAL: Thank you ma'am. Mr Tshika, in Exhibit B you deal with the general background and you begin by saying that you're an adult male residing at 27 Flat Grown Road, Caversham Glen, Pinetown, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: You say you apply for amnesty for the incidents that occurred in Newcastle around 1986, those are the two Newcastle explosions, namely the one on the 11th November 1986 in Newcastle Court and the one around '96, also 11th November '96, sorry, at the Game Centre in Newcastle?
MR TSHIKA: That is correct.
MR DEHAL: In addition to those you also apply for amnesty for the three Durban incidents and you detail them there but of course we're not dealing with those today?
MR TSHIKA: That is correct.
MR DEHAL: You say that you were arrested and tried at the Pietermaritzburg Supreme Court in 1987 for the above acts, that Judge Broome was the presiding judge who convicted and sentenced you to 15 years of imprisonment, correct?
MR TSHIKA: That is correct.
MR DEHAL: The indictment contained in the bundle is an indictment that dealt with your trial on those days. You recall that indictment, you confirm that that is the indictment that you faced?
MR TSHIKA: That is correct.
MR DEHAL: Of course some of those counts referred solely against you and some of those counts solely against accused number three in that indictment?
MR TSHIKA: That is correct.
MR DEHAL: Then you deal with the general background, you say that you joined the ANC early in 1985 and you were a member of the Congress of South African Students known as COSAS in Lamontville?
MR TSHIKA: That is correct.
MR DEHAL: You took an early interest in politics and became increasingly unhappy with the prevailing conditions in the country in the 1980s?
MR TSHIKA: That is correct.
MR DEHAL: And then around 1985 you received training in South Africa, that's within the borders of South Africa, this course of training dealt with the handling of limpet mines and detonators?
MR TSHIKA: That is correct.
MR DEHAL: A gentleman, referred to as Belgium, was then your commander?
MR TSHIKA: That is correct.
CHAIRPERSON: Are you aware of his real name?
MR TSHIKA: I do not know his real name because we used the code names.
MR DEHAL: Do you know whether this Belgium is still alive or is he late?
MR TSHIKA: I do not have knowledge thereof.
MR DEHAL: But in Durban in the greater Durban area the general command was Mr Sishle Mbongo, correct?
MR TSHIKA: That is correct.
MR DEHAL: And Mr Sishle Mbongo was the upper commander of all ANC structures in Durban, beneath him was Belgium, Belgium gave instructions to Xondo and Xondo gave instructions to you and Belgium on occasions gave instructions to you?
MR TSHIKA: That is correct.
MR DEHAL: So the instructions that you really received for these operations in Durban were from Xondo and Belgium but this is just a brief statement you're making, you want to deal with it more fully when those operations are dealt with in your subsequent amnesty application, correct?
MR TSHIKA: That is correct.
MR DEHAL: You say that about this time when you dealt with Belgium, Sishle etc, you were an ordinary MK member. To the best of your knowledge Sishle gave instructions to carry out these attacks in Durban?
MR TSHIKA: That is correct.
MR DEHAL: I want you to then skip the subsequent pages - sorry, paragraphs 6, 7, 8, 9 and 10 because you don't want to deal with those now, that deals with other operations which we are not dealing with today. At the middle of paragraph 10 in page 2 you start off by saying
"In late December 1985 Xondo was arrested"
This is the Xondo we've just referred to, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: You say that you had learnt that Security Force members were wanting to arrest you as well. As a result you immediately left the country for Swaziland, your eventual destination was Angola so as to undergo further MK training there?
MR TSHIKA: That is correct.
MR DEHAL: When you arrived in Angola you received further machinery training, you also went to East Germany and received further training there as an MK operative?
MR TSHIKA: That is correct.
MR DEHAL: After this training you returned again to Angola and then went - made your way to Swaziland. Whilst in Swaziland you met with Ralph and Charles Ndaba, two comrades who were also MK members?
MR TSHIKA: That is correct.
MR DEHAL: These two members that we've just referred to namely Ralph and Charles Ndaba then advised you the position in Newcastle and of Bafana Ndaba's death. They advised you that they had chosen you to replace Bafana in the mission and you accepted this position?
MR TSHIKA: That is correct.
MR DEHAL: You then met with the first applicant and arrangements were made for Msibi, the first applicant, to fetch you from Lothair?
MR TSHIKA: That is correct.
MR DEHAL: The first applicant, Msibi, met you at Lothair subsequently and you then proceeded to Newcastle?
MR TSHIKA: That is correct.
MR DEHAL: This is Newcastle in the northern Natal area where these operations, these two operations we're dealing today were carried out, correct?
MR TSHIKA: That is correct.
MR DEHAL: At Newcastle, first applicant Msibi and you made arrangements for you to visit him on a weekly basis to obtain briefings. It was your task to train and recruit new cell members, you educated the new cell members generally in politics and in the use of explosives and detonators. You also imparted the political ideology of the ANC to them, correct?
MR TSHIKA: That is correct.
MR DEHAL: You recall Msibi, the first applicant having testified to the effect that he was not visited by other cell members apart from you, this for logistical and security reasons so that his identity would not be exposed to any low ranking cell members in the unlikely event of them being arrested hence securing the commander, was that correct?
MR TSHIKA: That is correct.
MR DEHAL: You continue to say that Msibi always discussed the various targets that he had chosen with you and after lengthy discussions Msibi would then inform the command structure in Swaziland of the proposed targets. After his briefings in Swaziland he advised you of the command structures decision and you carried them out to the cell members?
MR TSHIKA: That is correct.
MR DEHAL: In view of the fact that Msibi, the first applicant, was not openly available to the cell members, these cell members had rather viewed you as being their leader for they did not know about Msibi's involvement, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: You then say that around or about August 1986, Msibi, the first applicant advised you that Swaziland command structures, that's the seniors outside the country, the ANC, had approved that the oSizweni Police Station attack, you were aware that he had chosen this as a target so that you could obtain the firearms that were stored at this police station, correct?
MR TSHIKA: That is correct.
MR DEHAL: You say you viewed the police generally as being government tools in carrying out the apartheid policy, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: Now at this stage may I just pause and ask you, you recall some of the excerpts we read from the Security Force hearings, the first day hearings where Mr Tim Modise and various governmental officials gave evidence about policemen as targets, even some good policemen, despite being regarded as the forefront of the apartheid regime and therefore targeted, that was the general view of the ANC and you understood that as being the guidelines, correct?
MR TSHIKA: That is correct.
MR DEHAL: And secondly, do you embrace, do you endorse as correct that the first and second submissions of the ANC contained in these bundles inasmuch as we have not gone through them to save time and to prevent burdening the record, do you confirm the ANC stance in regard to police stations, policemen, governmental buildings and places like railway stations being legitimate targets. Do you embrace their view thereon and do you agree that your activities of these two targets fell within the purview of those guidelines?
MR TSHIKA: Yes I do.
MR DEHAL: Thank you. You then proceed to say that it was agreed between the first applicant and yourself that you will carry out this operation as other cell units did not have the requisite experience to handle an attack of this nature and that after careful reconnaissance surveillance, you had agreed to attack the police station at night because there would be then only two policemen on night duty? Agreed?
MR TSHIKA: That is correct.
MR DEHAL: There were just three of you that went across, Msibi the first applicant, yourself and one Tembinkosi was part of the ANC cells, MK cells at the time. You took Tembinkosi to remain outside as a lookout and Msibi and you would attack the police station on the inside and obtain the weapons. On your arrival at the station, first applicant Msibi then threw the grenade into the police station, the police retaliated and started shooting. Shots were then exchanged and you retreated into the bushes, correct?
MR TSHIKA: That is correct.
MR DEHAL: You say the following day you went to the police station in order to evaluate the situation and get information from the people around. You were informed that the police did not know their attackers, is that correct?
MR TSHIKA: That is correct.
MR DEHAL: Is it also correct that you did learn that some policemen were injured?
MR TSHIKA: That is correct.
MR DEHAL: Can I take you to paragraph 17, for 16 is to be ignored, you say in November 1986 Msibi, the first applicant, instructed that you and him and yourselves had to attack and place a bomb at the Glencoe railway station. Tembinkosi duly did so on a Saturday so as to minimise the number of casualties, is that correct?
MR TSHIKA: That is correct.
ADV BOSMAN: May I just interpose here Mr Chairperson? ...(indistinct)
INTERPRETER: The speaker's mike is not on.
ADV BOSMAN: The "we" in paragraph 17
"In November 1986, Msibi instructed that we had to attack"
Can we just get clarity on who the "we" are, it's not quite clear to me.
MR DEHAL: Sorry, I think we altered the subsequent "we" to Tembinkosi, perhaps what I should have done is altered the first "we". May I just explain that Msibi the commander had given instructions to the second applicant who is now testifying, to see to it that this operation was carried out and he then engaged Tembinkosi within his cell.
ADV BOSMAN: Thank you.
MR DEHAL: Is that correct?
MR TSHIKA: That is correct.
MR DEHAL: You then say that you were arrested in December 1986 in Ndadelene, is that Ndadelene?
MR TSHIKA: Madadene.
MR DEHAL: Madadene, thank you. Newcastle, by the Newcastle security branch. You were constantly interrogated and tortured by the security branch. You were detained for a further three months and you appeared at the Newcastle magistrate's court in June 1987. You were only aware of the injuries that was caused by your actions and activities during your trial. You were convicted and sentenced to 15 years imprisonment in Pietermaritzburg and later transferred to Robben Island and released four years later, correct?
MR TSHIKA: That is correct.
CHAIRPERSON: Did he receive indemnity or on what basis was he released?
MR DEHAL: He received indemnity, yes.
You also say then finally that you maintained that all the incidents were carried out with the intention to destabilise the apartheid government, you wanted to free the Black comrades and fought for your own belief. You are deeply sorry about injuries that was caused because of your actions and beliefs, your main objective at all times was not to injure the innocent people but to fight for freedom and you apologised to those that have suffered, correct?
MR TSHIKA: That is correct.
MR DEHAL: You've heard about this gentleman who claims that he was shot at during the oSizweni Police Station operation. Do you know anything about him?
MR TSHIKA: No I do not.
MR DEHAL: Now if it is true that he was shot in this operation can you explain how it is possible that it might have happened that he was so shot at, his vehicle so damaged and him possibly so injured pursuant to, arising from this operation?
MR TSHIKA: Please repeat that question?
MR DEHAL: Sorry, if it is true that this man Mr Labena Mazibuko was indeed or did indeed suffer as he says he did arising from this oSizweni Police Station operation, can you explain how it may be possible that he came to be so injured? Sorry, I may be rephrasing that too broadly, you recall that the applicant Msibi in answer to my learned colleague the Evidence Leader's question said that he did not know about Mazibuko, that Mazibuko was not there to the best of your knowledge and that if Mazibuko was shot at it must have been in the crossfire, what do you say to that?
MR TSHIKA: I would confirm what Mr Msibi says.
MR DEHAL: Sorry, thank you. Did you see Mr Mazibuko on the day on which this operation was carried out, that's the oSizweni Police Station operation of the 10th October 1986. You were there, did you see him there? Did you see his vehicle there?
MR TSHIKA: No I did not, I did not see his vehicle.
MR DEHAL: Did you see any vehicle?
MR TSHIKA: I did see a police van parked outside the police station.
MR DEHAL: Is that the only vehicle you saw?
MR TSHIKA: That is correct.
MR DEHAL: And do you confirm the details relating to the arms that you carried, that your commander Mr Msibi, the first applicant, carried, the objectives for which you pursued this operation as testified to by Mr Msibi?
MR TSHIKA: Yes I do.
MR DEHAL: The Evidence Leader has asked Mr Msibi some questions about whether it may be - sorry, the Evidence Leader had asked Mr Msibi questions relating to the indictment and that on certain pages of the indictment there is reference to this Mazibuko. You were charged in this trial, this is an indictment that you faced, you recall the reference to Mazibuko, is that the first time you'd ever heard about this Mazibuko?
MR TSHIKA: I heard about him for the first time in court.
MR DEHAL: And is it correct that you had not testified in your trial and you were convicted purely on the state's witnesses testimony?
MR TSHIKA: That is correct.
MR DEHAL: If it is ever suggested to you that you had alternatively that you and Tembinkosi had, alternatively Tembinkosi alone had shot Mazibuko, would you deny that?
MR TSHIKA: I wouldn't deny it because I do not recall Tembinkosi firing at anyone when we fled from the police station.
CHAIRPERSON: Mr Dehal, we'll accept that but you're at risk now. If for instance there's a civil claim you're not admitting to admitting any offence so we can't give you amnesty for that, for the shooting at the car, you're aware of that?
MR TSHIKA: Yes.
CHAIRPERSON: But if it was included and foreseen then we can give you amnesty. If not and if the offence is denied we can't give you amnesty.
MR DEHAL: Yes, I was just going to embark on that second aspect now on the next question on the foreseeability aspect.
CHAIRPERSON: Yes.
MR DEHAL: Thank you. Mr Tshika, you've heard Mr Msibi say that in response to Mrs Bosman's question about the possibility - sorry, about the fact that when you got to the police station you must have expected that policemen could possibly die in this operation. You recall that, you agree with that, do you?
MR TSHIKA: Yes I do.
MR DEHAL: Do you recall also Mr Msibi's testifying that it may be possible, this is in response to Judge de Jager's question that Mr Mazibuko, this person was caught in the crossfire allegedly may have been caught in the crossfire as a result of a bullet ricocheting and catching on to him. A loose stray bullet or a bullet simply ricocheting onto him.
CHAIRPERSON: I didn't put it that it ricocheted, I said it may be that the car could have been struck by a bullet, a stray bullet or a bullet in a sort of crossfire but not one ricocheting that would involve hitting something and ricocheting to another, I've never put that.
MR DEHAL: I see but at the level that Judge de Jager is now correct, would you agree with that?
MR TSHIKA: Yes I would.
MR DEHAL: Now to that extent if at all it is true that Mr Mazibuko was involved - sorry, was injured in this operation you apologised to him for the injuries caused to him and you apply for amnesty for that?
MR TSHIKA: That is correct.
ADV BOSMAN: And then what about the possible malicious injury to property, Mr Dehal?
MR DEHAL: Sorry, the problem we have is that we did not go through Mr Mazibuko's Afrikaans statement and I said to the Evidence Leader that neither of my two clients nor I am so familiar with the Afrikaans so we heard for the first time today that his vehicle had gone missing.
CHAIRPERSON: When did you receive the bundle?
MR DEHAL: Fairly lately last week, I think on Thursday last week, on Friday last week.
CHAIRPERSON: And you couldn't prepare on the basis that you could get an interpreter to help you?
MR DEHAL: Certainly not in those last few days, yes. We'd got them I think on Thursday and we began consulting on Thursday with the one applicant on Friday, with the other applicant we were told that this witness was not going to be called so we didn't think it even important. We were even told today, this morning that he's not going to be called.
CHAIRPERSON: Well a victim can always on his own accord give evidence and we can't deny any victims a right to give evidence. The purpose of the whole Act is to accommodate victims. They are the persons losing rights, they're not gaining anything by amnesty so they're entitled to give evidence for whatever and we're obliged to give them the opportunity to give evidence if they want to.
MR DEHAL: I have no difficulty with that Chair, my only difficulty is that we did not pay much weight to this page 64 onwards given it's Afrikaans content, especially given the fact that we were told he would not be called.
CHAIRPERSON: Well it was in the charge sheet too? He was charged with this.
MR DEHAL: Yes but ...(intervention)
CHAIRPERSON: So he was aware of it.
MR DEHAL: No, no, no, I think we're at cross purposes here. Yes, he was aware of Mazibuko, he said so, he said - the present applicant says he heard of him for the first time at the trial. What we are dealing with now if Ms Bosman's question about the injury to property, namely the car of Mr Mazibuko. Now that's not the ...(indistinct) in the indictment to the best of my knowledge and it's an aspect ...(intervention)
CHAIRPERSON: If the car was shot wasn't it damaged and wouldn't that be injury to property, malicious injury to property?
MR DEHAL: Yes.
CHAIRPERSON: So we're arguing really about something that's been known since 1996, it's about 14 years.
MR DEHAL: And I think just one question would solve that problem. Mr Tshika, to the extent that you concede, confirm that Mr Mazibuko may well have been caught in the crossfire and injured thereby and to that extent you seek amnesty therefore and you're apologetic to him, likewise on the same basis if his vehicle was damaged in the crossfire do you apologise for that and seek amnesty therefore?
MR TSHIKA: That is correct.
MR DEHAL: Thank you. I take you to your application for amnesty in the bundle itself. I just wanted to deal with one aspect. Do you see your bundle pages 12 onwards? On page 13 at the bottom you start with the last word or the last two words you say "I do" and then you go onto the next page, you say
"I do not know whether I have to apply for amnesty or not since I was released from Robben Island Prison on the 20th April 1991 on political amnesty. The case in question was State vs Tshika, I do not have the trial record."
Do you recall saying that?
MR TSHIKA: Yes I do.
MR DEHAL: Now this amnesty that you received before your release from Robben Island, was that the general political amnesty that all Robben Island prisoners received pursuant to the ex-State President Mandela's release when all of you were given amnesty and allowed to be released from Robben Island?
MR TSHIKA: That is correct.
CHAIRPERSON: I think you should pay attention to the question whether there's still any offence? Wasn't the offence sort of expunged by the indemnity and wouldn't -I think it's Section 43 of the Act, say that that should be acknowledged and there's no offence any more?
MR DEHAL: Mr Chairperson, that is my understanding but the applicant had raised this with me and I couldn't find any parallel provisions apart from Section 43 to seek reliance upon but we made some investigations and found that the so-called SAP69 still referred to previous convictions and to that extent that it was not expunged, we considered it prudent to pursue this application.
CHAIRPERSON: Yes but we could only give amnesty for an offence or a delict still existing?
MR DEHAL: Yes, I'm not too sure whether ...(intervention)
CHAIRPERSON: And the inscription on a SAP69 isn't an offence or a delict that amnesty may result if once amnesty is granted that it's expunged?
MR DEHAL: Expunged, yes. My problem is I'm not really au fait with what the ambit of those initial amnesty provisions were and whether they do indeed obliterate so-called activities, acts committed at the time to the extent that it does not then the amnesty is pursued with. Thank you.
Mr Chairperson, that is the evidence of this applicant.
NO FURTHER QUESTIONS BY MR DEHAL
CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, I do have, thank you. Mr Tshika, at the time you left the police station were the three of you all together at the time you retreated from the operation?
MR TSHIKA: That is so.
MS MTANGA: You've heard the evidence of Mr Msibi when he stated that at some point during the operation Tembinkosi disappeared and then he reappeared later. Do you recall that?
MR TSHIKA: Yes I do recall that.
MS MTANGA: When did he reappear?
MR TSHIKA: When the exchange of fire began we were not all standing at one place, we were at different positions. When we retreated he as the commander had the responsibility to ensure that we were all there, accounted for. We then retreated together but fled in separate directions and later re-converged at a certain spot.
MS MTANGA: At the time you were retreating was there a point when you and Mr Msibi were actually walking together away from the police station without Tembinkosi?
MR TSHIKA: If I recall correctly yes there was and there was also a time when I was just alone. We were not fleeing in formation.
MS MTANGA: And what I also want to know is as you were retreating from the police station where were your firearms that you were carrying. I believe the evidence of Mr Msibi was that you had AK47s and some magazines. Where were those weapons?
MR TSHIKA: I had mine in my possession.
MS MTANGA: And did the two other persons have firearms, do you remember?
MR TSHIKA: The weapons were not left on the scene, they had their firearms as well.
MS MTANGA: I wish to put it to you, Mr Tshika, that Mr Mazibuko is going to testify that the point of attack, the point where he was attacked by two people, two kilometres away from the police station and the two people who were attacking and were carrying firearms similar in appearance, he cannot describe what kind of firearms they were and they tried to stop his vehicle, fired a shot at his vehicle but he didn't stop, he ran away. Do you recall this incident?
MR TSHIKA: No, that is difficult to recall because when we went to the police station we had long overcoats on to hide our firearms and when we retreated from the police station we still had those same long overcoats under which we had hidden our firearms. As we were fleeing we might have encountered police along the way so we had ensured that they did not realise that we were the attackers.
MS MTANGA: What you are saying now actually ties up with what Mr Mazibuko is saying, he alleges that the two people who fired shots at him were carrying firearms that were hung on their shoulders across their bodies and these people tried to stop him, they fired shots at him and he ran away. What do you say to this?
MR TSHIKA: As I've mentioned before I do not know anything about that.
MS MTANGA: I further wish to put it to you that Mr Mazibuko will take a stand and give evidence to this effect and that will be the sense of his evidence that this took place two kilometres away from the police station and that he has heard the evidence of Mr Msibi saying that if this did occur it should be regarded as a ...(indistinct) that occurred as a result of the crossfire and the position that Mr Mazibuko is going to take is that an incident that took place two kilometres away from the police station cannot be regarded as resulting from that crossfire. What do you say to that?
MR TSHIKA: Please repeat that question?
MS MTANGA: Mr Mazibuko will testify that if this incident took place two kilometres away from the police station it cannot be regarded as an incident that was consequent to crossfire that took place at the police station and therefore it should be regarded as a separate incident where he was just fired at by two people carrying firearms hung around their bodies?
MR TSHIKA: I do not know about that.
MS MTANGA: You heard the questions that I put to your co-applicant, Mr Msibi, that after this incident, the vehicle that's the subject matter of this application now, the vehicle driven by Mr Mazibuko disappeared and this vehicle was to be used as evidence in your trial against you and your co-accused. Do you know anything about the disappearance of that vehicle?
MR TSHIKA: No, I do not know anything about it.
MS MTANGA: This is the end of my questioning, Chairperson. Thank you.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: At this stage could I enquire from the staff and the representatives, should we continue for another say twenty minutes or would you like an adjournment now or could we finish perhaps with the whole application?
MR DEHAL: Mr Chairperson, insofar as we are concerned, if the evidence of Mr Mazibuko is going to be very minimal and not too long, say twenty minutes, then I don't mind proceeding through the lunch break and then we can adjourn for the day but if it's going to be unduly lengthy then surely we should do that later.
CHAIRPERSON: I can't imagine it being lengthy because of the substance he is giving evidence about it seems to be very short?
MR DEHAL: I agree.
CHAIRPERSON: What about the rest of the staff? The interpreters? Would you prefer us going on or would you prefer an adjournment now? Yes, if they're in agreement we'll carry on, if not kindly advise us?
INTERPRETER: We do not mind carrying on until we've completed the application.
CHAIRPERSON: Thank you. Mr Dehal, any re-examination?
MR DEHAL: I have no further questions, thank you.
CHAIRPERSON: In the Glencoe railway attack were you only sort of carrying a message from Mr Msibi to Tembinkosi or did you partake in the attack itself?
MR TSHIKA: I only passed on the message to Tembinkosi, I did not accompany him when he went to place the explosive.
CHAIRPERSON: So you weren't present when the explosion took place?
MR TSHIKA: No I was not.
CHAIRPERSON: Thank you.
ADV BOSMAN: I have no other questions, Chairperson.
CHAIRPERSON: Right, any further witnesses?
MR DEHAL: Mr Chairperson, that concludes the evidence insofar as these two counts alone are concerned of both these applicants, thank you.
WITNESS EXCUSED
CHAIRPERSON: Thank you. Are you calling Mr Mazibuko?
MS MTANGA: Yes Chairperson, as the Committee pleases I would like to call Mr Mazibuko.
CHAIRPERSON: Would he give evidence in Zulu?
LABENA ISMAIL MAZIBUKO: (sworn states)
EXAMINATION BY MS MTANGA: Thank you Chairperson. Mr Mazibuko, would you state your full names for the record?
MR MAZIBUKO: Labena Ismail Mazibuko.
MS MTANGA: Mr Mazibuko, are you employed?
MR MAZIBUKO: No, I'm unemployed.
MS MTANGA: At the time of this incident were you employed?
MR MAZIBUKO: I had just recently been retrenched when this incident occurred. I had just completed repairs to my vehicle because I was aware I was going to be unemployed a short while. At the time I had not even completed payments for the repairs to my vehicle.
MS MTANGA: Can you please tell the Committee what happened to you on that day when you and your vehicle was shot at?
MR MAZIBUKO: My home is close to the police station and from the police station my home is in a northerly direction. I left home with my brother-in-law, Mishak Radebe, and we were proceeding to his house. The route towards his house passes by the police station. It was late, after dusk. We went to his place and we spent some time there. On our way back we were not aware that the police station had been attacked at that time. There was a site where ash was dumped on our way back. As I came across and I was driving along a route outside the township, as I came upon there I saw two people.
MS MTANGA: Mr Mazibuko, can you try and - when you give evidence, can you try and give distances, estimate the distances that you are talking about? You said you left your home going to Mr Radebe’s house? How far is this house from the police station?
MR MAZIBUKO: The house is more than two kilometres away because I was shot at at a distance of about two kilometres from the police station. The house could be half kilometre away from the spot at which we were shot at.
MS MTANGA: So is it your evidence that from your house you go past the police station and then you get to the point where you were attacked and then you get to Mr Radebe’s house?
MR MAZIBUKO: Yes that is so.
MS MTANGA: Okay carry on, you can carry on with your evidence?
MR MAZIBUKO: As I approached I saw ...(intervention)
CHAIRPERSON: Could you just wait a minute so that they could interpret to us what you've said?
MR MAZIBUKO: As I saw these two person they were trying to stop me and I was surprised because there were gold lines running across their bodies and I could see that they were carrying something that looked like bags so I slowed down and the vehicle proceeded slowly.
CHAIRPERSON: Could I have clarity about this, you say they had gold lines across their bodies. Would that be the same that sometimes you'll find during a road block, people carrying a sort of - not that kind of thing that would illuminate at night and warn you there's a roadblock for instance?
MR MAZIBUKO: No, I was surprised because I do know that which is used by the police but that looked like horizontal lines, that is why I did not stop immediately, I just slowed down so the car proceeded slowly. They must have thought I was stopping but when they realised that I did not stop but was passing, a shot was fired and it went through just above the rear wheel. In fact it went up through the canopy straight towards me. I just saw a ball of fire right in front of my face. So the bullet whizzed past me. I just saw a ball of fire and that was the bullet. We then proceeded, went past the police station. On my arrival at home I was eager to relate the story that somebody has shot at us. When we arrived at home all the lights had been turned out. It was dark. When we enquired what was going on we were informed that there was an exchange of fire at the police station and we were surprised because we had also been shot at. At that time we were using the phones, the type of phones that would go through the post office, we would request a number, so we had to request from the switchboard whether it was possible for us to use the road again because some people had shot at us on that road. They wanted to know who had shot at us and what had happened so we went, took the van there and the police questioned me greatly and searched my body whether I had been shot at or not. One of them even said that I was a lucky man because the bullet was right at the foot of the van and he took it from there and showed it to me. So he asked me to go point out the spot where I had been shot at which I did and they took photographs of that place and they also took photographs of the spot on the vehicle where it had been shot. Thereafter my vehicle was stolen. To this day I do not have a vehicle, I used this car for my business. I thought the applicants were going to admit to this, but they have denied ever having done it so I do not know how one is supposed to forgive them because they did shoot at me.
CHAIRPERSON: Right, Mr Mazibuko, was your car stolen after the arrest of the applicant while he was awaiting trial?
MR MAZIBUKO: I would say it was after that because after the incident it was widely reported in the media. Before the matter came to trial the car was stolen.
CHAIRPERSON: No, I understand, yes. You see if he was in jail then, in all fairness he couldn't be the thief? It must have been somebody else?
MR MAZIBUKO: I cannot say whether he was already arrested at that time because this happened shortly after the incident. I cannot say whether he had already been arrested or not but I suspected that my vehicle might have been stolen for that reason. I thought perhaps that they had stolen it because it could have been used as evidence.
CHAIRPERSON: No, I understand that too that you suspected that. You couldn't recognise any of the people shooting at you?
MR MAZIBUKO: No, I did not recognise them.
CHAIRPERSON: Even today you may have suspicion but as you sit there can you be sure it's one of the people sitting over there that shot at you?
MR MAZIBUKO: Yes it is them because the police said that the people who had shot at me had been caught and they were the people who were mentioned in court, that they were Tshika and Msibi.
CHAIRPERSON: Yes I think perhaps the police also suspected it to be them but if really we sit down we can't say that they're the guilty persons. Wouldn't we be doing an injustice to them if on the evidence presented here we sort of accept that they are the guilty persons? We may suspect that and it may be so but on the evidence before us and on the proof the incident wasn't - couldn't have been crossfire because it's two kilometres away and then it wouldn't fall within the ambit of the offence they're seeking amnesty for and as they deny shooting at somebody two kilometres away, that wouldn't be part of the application and if you later receive evidence about people involved there it may be, we'll consider it but it may be that even you could be free to proceed with action against them? I don't know whether you're following but that's my personal view at this stage and my colleagues could express their opinion too but if there's anything else you want to add please go ahead and tell us about it?
MR MAZIBUKO: I do understand what the judge is saying but they were convicted of shooting at my vehicle. What I would like to know is how could they be convicted of a crime that they did not commit? How can Mr Tshika be convicted of a crime that he did not commit because he was convicted in court for shooting at me.
ADV BOSMAN: Mr Mazibuko, was the bullet that was found in your car, was that before the trial court?
MR MAZIBUKO: Please repeat that question?
ADV BOSMAN: Was the bullet that was found in your car, which struck your car, was that before the trial court? Do you know?
MR MAZIBUKO: Yes it was evidence in court because it was mentioned that the bullets or the cartridges that were found at that police station were the same as the bullet that was found in my car and they had the cartridges at the time when I was approached, that is why I insist that it was them.
MS MTANGA: Mr Mazibuko, how long after this attack on your car was your car stolen, can you remember?
MR MAZIBUKO: I do not recall, that was about two months or one and half months that the incident, I'm just not sure of the exact time.
CHAIRPERSON: I see in the court papers that they say the bullet matched the firearm carried by Tembinkosi and they say it's an allegation here, it's not the evidence itself. On the date at near the place mentioned near the police station accused number three, that was Mr Tembinkosi, fired a shot with an AK47 machine rifle but the vehicle of Mr Labena Mazibuko, the bullet struck the vehicle behind the right hand door penetrating the vehicle narrowly missing the said Mr Mazibuko. So it seemed not that the present application fired the shot but it was fired by Mr Tembinkosi and you've heard the evidence that while the shooting took place, Mr Tembinkosi sort of had a shock and he ran away. Now that's the evidence we're having at present but we're talking cognisance of what you're saying and if there's any further evidence you want to add to it we'll also consider that in dealing with the application and if we're not satisfied that this forms part of the application and that the applicants are accepting responsibility therefore, then of course we can't grant amnesty for that. But that would affect a part of their application and not the whole application. There we'll have to consider other elements as well.
Thank you and if there's anything further you want to add please do so.
MR MAZIBUKO: I can state that the people who shot at me were two individuals, it was not just one person but we have only referred to one person here. It was obvious that I was shot by two persons who were together. Thank you.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you. Mr Dehal?
CROSS-EXAMINATION BY MR DEHAL: Thank you. Mr Mazibuko, look at page 65 of the bundle. 64 and 65. That is an Afrikaans statement, or a statement in the Afrikaans language being your statement and signed by you on page 65, do you agree with me?
MR MAZIBUKO: Yes.
MR DEHAL: Sorry, I don't hear the interpretation?
CHAIRPERSON: He said yes.
MR DEHAL: Oh sorry, thank you. Do you speak Afrikaans, do you read Afrikaans?
MR MAZIBUKO: Yes I do understand Afrikaans.
MR DEHAL: Can you read paragraph 7 on page 65 into the record? Read it loud in Afrikaans.
CHAIRPERSON: Oral interpreted - it's alright.
MR DEHAL: No, no, read it into the record, what does it say?
MR MAZIBUKO: "I do not know the persons who shot at me and I do not believe that I will recognise them."
MR DEHAL: Now you do understand that paragraph well, don't you?
MR MAZIBUKO: Yes I do.
MR DEHAL: And you stand by that?
MR MAZIBUKO: As I mentioned before I did not see who they were, I still insist that I did not see them.
MR DEHAL: You still insist as you sit here today that to the extent that you did not see them you cannot again identify them because that's what the paragraph says?
MR MAZIBUKO: That is correct.
MR DEHAL: So in answer to Judge de Jager's question as you sit there today you do not know really who shot at you, even these two applicants, the first and the second, you cannot say they shot at you because you didn't see them. You agree with me? That's really what you said in paragraph 7. You must agree with that?
MR MAZIBUKO: Yes that is correct. As they also mentioned they had dressed in such a way that they would not be recognisable but it was their cartridges that indicated who they were. The cartridges were evidence that pointed to the fact that I had also been shot by them.
MR DEHAL: Now before Mr Msibi gave evidence this morning the Evidence Leader had consulted with you at the back, do you remember? That's before she cross-examined Mr Msibi? The lady seated next to you is the Evidence Leader, she had talked to you before she cross-examined Mr Msibi, do you remember that?
MR MAZIBUKO: That is correct.
MR DEHAL: In consulting with you, you told her what had happened, you told her how it happened, do you remember?
MR MAZIBUKO: Yes I did.
MR DEHAL: You see, what worries me is that when she, the Evidence Leader cross-examined Mr Msibi, she said there was one person that had shot at you, not two persons and she referred to Tembinkosi. Now that accords with the indictment, Tembinkosi is the third accused in the indictment. Would you say those were your instructions to her? Those must have been your instructions to her otherwise she would not have put it to Mr Msibi, correct?
MR MAZIBUKO: I told her that there were two people who shot at me. Even in court I did testify to that effect. I did not see who they were, I could not recognise them. Even now I cannot say I recognise them because they were also dressed in a fashion that made recognising them impossible but I only say it is them because of the cartridges that were picked up from the police station as well as the bullets that was found in my car. Those two managed that is why I am convinced that it was them who shot at me. That is why I said I could not recognise their faces.
MR DEHAL: Yes now - sorry, the difficulty I have now is this ...(intervention)
CHAIRPERSON: Mr Dehal, shouldn't we analyse what we're busy with? If you're applying for amnesty for the shooting at the car then you should admit that it could be a bullet coming from your people. If that's not the case then you didn't commit an offence and you can't grant you amnesty for that so then it would fall outside the ambit of your application. If you would admit, your clients would admit that this bullet possibly could have been coming from you then of course there's another scenario and we could give you amnesty but on the evidence now that this shooting occurred two kilometres from the police station, could this be considered as part of your applicant's application, your version that even if it was a stray bullet it must have been I suppose in the vicinity of the - so on the evidence before us would you submit that even if we accept his evidence now that it occurred two kilometres from - it would still fall within a possible - possibly in the ambit of your application, being a stray bullet fired at the police station?
MR DEHAL: I see those difficulties as well but may I just say that the reason I'm cross-examining this witness on the lines I am doing is this, if one reads the indictment as I thought you did, Chair, together with his statement and together with the general background of the documents it seems that the Attorney-General, Mr Mike Imber had understood clearly from his statement, this witnesses statement and possibly from his brother-in-law's statement which we do not have, that the vicinity of the shooting must have been in the immediate vicinity of the police station otherwise paragraph 40 and 39 would not have read the way it did on page ...(intervention)
CHAIRPERSON: No, that may be what Mike Imber thought at that stage. On the evidence before us now there's no way we -I mean we - he's very firm on it, that it occurred about two kilometres away.
MR DEHAL: One of two things then can happen. Either we accept his evidence at that level and then our applications for amnesty do not stand because it only stands insofar as it is approximal consequential cause arising from our ...(indistinct). Now we've not come here today saying this is an event that occurred as a result of our activity, we're saying given the cross-examination, if indeed you find that it occurred there, we apply for amnesty for that because it was an anticipated consequence but to the extent that it's now distanced away from the scene to a two kilometre spot we said we never did that, none of our men did that and my cross-examination is designed to show that he may well be mistaken because Mr Mike Imber is a very senior man, with the statements before him he would never have misconstrued it as being in the immediate vicinity.
CHAIRPERSON: Right.
MR DEHAL: Thank you. Mr Mazibuko, I want to suggest to you that you may be mistaken about this distance of two kilometres away but before I do, can I just seek some clarity. At the time your car was shot at, was your brother-in-law, Mishak, still in the vehicle with you?
MR MAZIBUKO: Yes.
MR DEHAL: Okay and was he in the front seat of your vehicle?
MR MAZIBUKO: Yes he was with me, it was a bakkie that I was driving.
MR DEHAL: And you were the driver?
MR MAZIBUKO: Yes.
MR DEHAL: Now were you on your way back home or were you still on your way to Mr Mishak's home when you were fired at?
MR MAZIBUKO: We went to his home, he was there to do something and then later we left his home and we were on our way to my home. I do understand that some of you are saying it wasn't them. I saw them, they were approaching towards the eastern direction. They were on foot and I thought they were about to hi-jack me.
MR DEHAL: No sorry, my question is a simple one. You are saying that you were returning from Mishak, your brother-in-law's home, at the time you were fired at. Now the following is also a simple question, did you pass the police station before you were fired at or had you still to arrive at the police station?
MR MAZIBUKO: I was on my way towards the police station.
MR DEHAL: How far away from the police station were you?
MR MAZIBUKO: Like I've already estimated, I said about two kilometres and they came from the houses, we met, they were from a dark place, it was dark where they were from and they came right in front of the car. I got scared, I slowed down.
MR DEHAL: Yes, now we've heard the rest, thank you. Now when you say the bullet hit your vehicle, I just want you to deal with the trajectory of this bullet. You say it hit the back of your vehicle, at the back wheel and how did it move to the front?
MR MAZIBUKO: I don't know how but the car kept on moving and the police called me when I was at home. He said he wanted to check my car and also to check myself if I was not injured and he found that cartridge in that car.
MR DEHAL: Yes but - sorry, earlier in your evidence in chief you said that a bullet had hit the rear of your vehicle if I recall correctly, had gone through the canopy, is it? So that it raises itself. You're pointing with your finger, going up this way to the canopy and then to the front?
MR MAZIBUKO: That's how the hole was, it was at the back and then it came out in the front.
MR DEHAL: So from the back it goes upwards to your canopy, down to the front and then lands near your accelerator pedal, correct?
MR MAZIBUKO: Yes, as I'm sitting here it penetrated through where I'm pointing now. They found it near my feet. I didn't even see it but the police found it there because the police traced the holes until to the accelerator pedals.
MR DEHAL: And which back wheel was it fired at? The right or left?
MR MAZIBUKO: Right because I was facing to that direction, they came on my right hand side and they fired from there.
CHAIRPERSON: We're not really - I don't think it's disputed that there was a bullet hole in the bakkie. Whether it entered and whether it made a curve, the fact is unless you say that you disputing the whole story there was no bullet hole at all? I don't think it would assist us in coming to any conclusion, whether it's the right wheel or the left wheel or the petrol pedal or the brake or wherever it landed up?
MR DEHAL: Chair, can I just say the reason for this is to show at the end on submissions that this witness is an unreliable and unreasonable witness, that his version even on the trajectory is so palpably false that no bullet could reasonably behave that way and therefore his ...(intervention)
CHAIRPERSON: But nobody could follow the trajectory of a bullet?
MR DEHAL: No when it's shot from the front, it wouldn't hit the back wheel.
CHAIRPERSON: No, you can't see a bullet. He is sort of making deductions that it entered and it entered the cab somewhere ...(intervention)
MR DEHAL: That's the point. That's the point.
CHAIRPERSON: Where did it enter the cab, where did it land up in the end? It entered the cab and it landed somewhere in the cab in front?
MR DEHAL: Yes, I agree, that's the point I'm making.
Mr Mazibuko, these people who fired at your vehicle, fired from the front of your vehicle as you looked at them, correct? That was your evidence?
CHAIRPERSON: No, he never said that.
MR MAZIBUKO: No I didn't say it so.
MR DEHAL: So where were they when they fired at you?
MR MAZIBUKO: They were in front when they tried to stop me, I slowed down and they thought I was going to stop but I passed them. As they realised that I was passing that's when they started firing. At that time they were at the back.
MR DEHAL: Okay, tell me, do you know what's two kilometres? Can you show us in this courtroom using the distance from this court to the outside? Or within these courts what's two kilometres?
ADV BOSMAN: ...(inaudible) reasonable, Mr Dehal?
MR MAZIBUKO: I don't quite know this area but if I may refer to oSizweni area because I know oSizweni area because there are boards at oSizweni which tells one three kilometres from wherever you are to oSizweni therefore that's why I know to estimate but this one it's less, it was lesser, that's why I estimated it as two kilometres because of that board that says three kilometres.
MR DEHAL: Sorry, on your evidence there is no possibility at all that you were fired at outside the police station or within it's immediate vicinity, that you do not accept, is that correct?
MR MAZIBUKO: It wasn't in the vicinity, it was not close.
MR DEHAL: Yes, thank you. Now again on your evidence you don't know why accused number three Tembinkosi came to be alone charged for the incident relating to the shooting on you?
MR MAZIBUKO: The reason I said so it is because they've repeated mentioned Tembinkosi alone but according to my evidence the people who shot at me were two, not one that's why I'm saying it wasn't Tembinkosi alone, there were two.
MR DEHAL: And then finally, Mr Mazibuko, you had as a matter of clarity only, you had earlier mentioned that these gentlemen, the two applicants were charged and convicted of this offence relating to you and therefore you say it's them. Now I just want to tell you that accused number - sorry, second applicant, Mr Tshika, has never been charged with a single incident, it was only accused number three, Mr Tembinkosi charged with it so he was not even convicted of it and insofar as the first applicant, Mr Msibi, is concerned he was neither arrested and therefore not even charged nor convicted or sentenced on the incident relating to you. Do you understand?
MR MAZIBUKO: Are you saying Tembinkosi was charged for this case, my case?
MR DEHAL: He was the only - Tembinkosi was the only one charged with the case relating to the shooting on you.
MR MAZIBUKO: That is why then I'm saying it might have been that it was an agreement between Tembinkosi and his colleague that Tembinkosi was going to take the blame alone but I know that they were two and I'm not working today because I was using my car to maintain my family but the people who shot at me were two, not one person.
MR DEHAL: Mr Chairperson, that concludes my cross-examination, I just want to confer with my clients, it seems like one wants to ask me a question. Bear with me?
Mr Mazibuko - sorry, thank you Chair. Mr Mazibuko, don't touch those buttons otherwise you switch mine off, okay? Following upon your incident, the second applicant, Tshika, was arrested by the Security Police and so was Mr Tembinkosi, that's after the incident on the oSizweni Police Station. Did the Security Police visit you and talk to you?
MR MAZIBUKO: When, after the incident? After the incident. I'm asking if they came to my house after the incident?
MR DEHAL: Well, did any Security Police visit you at any stage to discuss this matter with you? Whether they came to your house or you went to their office?
CHAIRPERSON: Or perhaps did any policeman visit you?
I don't know whether you want to know Security Police and whether there was a difference between the police visiting and operating there, whether there was a branch of the Security Police?
MR DEHAL: No Mr Chair, it seems like a policeman did deal with him because there's a J C van Niekerk who was a Lieutenant in the Newcastle Police Station who took his statement ten days afterwards.
CHAIRPERSON: Yes.
MR DEHAL: But we know that the Security Police were very active for the rest of us.
CHAIRPERSON: Yes, thanks.
MR DEHAL: Mr Mazibuko, the security branch, the Security Police, the special branch, do you remember them? Did they see you, did they visit you, did they discuss this matter with you?
MR MAZIBUKO: The last time I had contact with police it was when I was in the police station on the day of the incident. I never went to see them. We only talked about it on that day and I was questioned on that day and after that there were no police who came to my house and I never went to their offices.
MR DEHAL: So did you make your statement on the day of the incident, your statement to the police?
MR MAZIBUKO: Yes they did ask me and I explained to them and they took me to the place where I said the incident occurred.
MR DEHAL: Was your statement written out and signed by you on that day, the day of the incident, at the police station?
MR MAZIBUKO: I will say so because it happened a long time ago, I can't quite remember. I don't remember whether they've written it and they gave me another date to come to the police station. I'm not quite sure, I don't remember very well whether I was told or I was given another day to come to the police station but they never came to my house and I don't remember them calling me, I'll be lying.
MR DEHAL: Did you ever see Tembinkosi in custody, were you ever shown Tembinkosi's face by the Security Police or any other policemen as the person who was arrested relating to the shooting on you?
MR MAZIBUKO: First time I saw them it was in Maritzburg, in Pietermaritzburg Supreme Court and they were still young at the time and I even told the people in court that if the law allowed one to fight with someone who did something to them I will request that from the court to go out and fight with these men because they were still very young at that time.
MR DEHAL: Lastly, did you see this gentleman on my left at court? I'm pointing for the record to Mr Msibi, the first applicant.
MR MAZIBUKO: I'm not sure whether it was him but they were still very young. Maybe it was him but I don't know. Now they are grown up men and it's difficult for me to say yes.
MR DEHAL: Did you see the gentleman on my right, the second applicant, Mr Tshika, at court or do you have the same answer?
MR MAZIBUKO: As I've already mentioned I did say it's going to be difficult for me to recognise them and another thing, even after I've seen them in Pietermaritzburg they were young at that stage, they were very young, I only realised that they were young boys at that time.
MR DEHAL: Mr Chairperson, that concludes the cross-examination. Thank you.
NO FURTHER QUESTION BY MR DEHAL
CHAIRPERSON: Thank you. Any re-examination?
MS MTANGA: No re-examination Chairperson, thank you.
NO RE-EXAMINATION BY MS MTANGA
CHAIRPERSON: Thank you Mr Mazibuko. Thank you for coming and attending the trial and giving evidence here.
WITNESS EXCUSED
MS MTANGA: No further witnesses to call, Chairperson, thank you.
CHAIRPERSON: Are you ready to address us?
MR DEHAL IN ARGUMENT: Mr Chairperson, I do not intend to be lengthy as the evidence seems to indicate unequivocally that both the applicants have in fact made out a case for amnesty on the two counts that we are dealing with. Insofar was the first applicant is concerned, his role is a peripheral one except for the first count - sorry, for the operation dealing with the police station. To that ...(intervention)
CHAIRPERSON: If you could only assist us, how would you formulate the order you're asking for in both instances? Would you assist us in formulating an order that covers whatever you're asking for?
MR DEHAL: Yes Mr Chairperson, insofar as the first applicant is concerned, the two counts as we deal with would be the counts that would fall within the order namely the attack at oSizweni Police Station on the 10th October, the damage to the police station, the injury to the policemen.
CHAIRPERSON: Okay the attack at oSizweni?
MR DEHAL: At oSizweni Police Station.
CHAIRPERSON: At oSizweni. Malicious damage to property, is that correct?
MR DEHAL: Yes.
CHAIRPERSON: What else?
MR DEHAL: The injuries sustained to the two policemen, Mr Ndwandwe and Mr Msibi.
CHAIRPERSON: Yes?
MR DEHAL: And the second count insofar as ...(intervention)
CHAIRPERSON: Yes, I don't think that's all you're asking for, you're also asking for the illegal possession of explosives and firearms?
MR DEHAL: Correct, but I thought I'd deal with the second count first, that's the explosion at the Glencoe railway station in Dundee for Msibi, the first applicant taking political responsibility therefore, it's not been contested.
CHAIRPERSON: It's not Dundee.
MR DEHAL: Sorry, Glencoe. At Glencoe. I see the record says Dundee, that's incorrect as well and amnesty for all and any firearms, explosives, ammunition and other military weapons like limpet mines etc.
CHAIRPERSON: Yes?
MR DEHAL: That Msibi as commander brought into the country and disseminated into his command structures.
CHAIRPERSON: Alright?
MR DEHAL: Insofar as the second applicant, Mr Tshika, is concerned ...(intervention)
ADV BOSMAN: Before you proceed with that, may I just ask in regard to what you formulated as injuries sustained to two policemen. Would that be attempted murder or would that be assault to do grievous bodily harm, in legal terms how would you formulate that?
MR DEHAL: That would be attempted murder alternatively assault with the intent to do grievous bodily harm on the two persons whose names I gave.
ADV BOSMAN: Thank you, you may proceed.
MR DEHAL: Thank you. And then insofar as Tshika is concerned, Tshika the second applicant, the order would basically read that the first operation being the attack at oSizweni Police Station on the 10th October 1986, the malicious injury to property to the police station and amnesty for the injuries sustained to the two policemen, Ndwandwe and Msibi on the attempted murder alternatively assault and GBH of these two men and the malicious injury to property of the Glencoe railway station. These charges, however, may also be framed as high treason in the old days of the high treason.
CHAIRPERSON: Or acts of terrorism.
MR DEHAL: Or acts of terrorism in the indictment or sabotage as well within the old framework. And then lastly, if you accept my submissions relating to Mazibuko, then the order may well deal with him. The brief submission I have is I am convinced that Mr Mazibuko is either mistaken or lying. He is mistaken surely because Mr Imber, having regard to a detailed indictment which you will recall, Chair, in those days were formulated by senior security policemen, would have been - he is laughing now - senior security policemen would have formulated these dockets having regard to his brother-in-law's statement and indeed Mr Mazibuko's statement and the proximity of the incident relative to the police station would have been obvious. Mr Mike Imber, being the senior man he is, would not have made the mistake on page 100 of the bundle to cite the place as being in the immediate proximity of the police station. In the circumstances I would submit that if you, Chair, would accept and the Honourable Members accept, that Mr Mazibuko is either mistaken ...(intervention)
CHAIRPERSON: Where's his allegations?
MR DEHAL: On page 100.
CHAIRPERSON: Page 100?
MR DEHAL: Of the bundle, yes. Paragraphs 39 and 40 and that's to be read with the other submissions relating to this witness, Mike Imber records earlier.
CHAIRPERSON: On the date at near the place mentioned in paragraph 39, he's not saying in the immediate vicinity of the police station?
MR DEHAL: Yes but I'm pretty sure that near would not have intended to mean two kilometres either because if it had been two kilometres away this would have been cited as a separate count and kept distinguishable from the police incident as indeed Mr Mazibuko wants us to believe. In fact on Mr Mazibuko's own testimony the operation, not the operation because that would have been a criminal act, that that incident would fall immediately in the vicinity of his brother-in-law's house for it was half a kilometre away from that house.
CHAIRPERSON: Isn't it a fact that on the evidence before us the only shooting at a vehicle that we could give a - not a verdict but come to a conclusion about - occurred two kilometres away plus-minus from the police station. You people can't say or your applicants can't say where it occurred because they don't know?
MR DEHAL: Yes.
CHAIRPERSON: He is testifying about a board there indicating a distance, he's been driving a vehicle, he knows about the - he is not blindly estimating anything, I don't think there's any basis on the evidence before us on which we can accept any other distance than a distance about two kilometres away?
MR DEHAL: Well, if that be the approach then, Mr Chair, the attitude would be from the applicants' submission that we do not seek amnesty for that incident because we viewed it as being within the proximity on cross-examination by the Evidence Leader of the police station. In the circumstances there'll be no need in the order to even reject the application for amnesty because we're not seeking it. In the present context of it being two kilometres away, we say we are disassociating ourselves with that, it had nothing to do with us, neither any cell member of ours, nor we two had ever perpetrated that incident. It would be a criminal act and we did not do it. In the circumstances even if there be a civil claim for damaged by Mr Mazibuko, we would defend it on the basis that we had absolutely nothing to do with it, his uncontroverted testimony about his lack of identity of the persons will not help him succeed on any action against us.
Mr Chair, I don't want to submit or make any submissions on the first submissions to the ANC, the second and the first day security hearings, the credibility of the respective evidence and the weight to be attached to them all. I think that goes without saying that indeed the evidence of both the applicants relative to these counts is uncontroverted, unopposed and must be accepted within the purview of the Act itself, Section 20(i)(a) that evidence is clear and should be accepted and they ought to be granted amnesty.
To the extent that Mr Mazibuko has featured at the scene, he has not attacked any of the incidents for which we seek amnesty on any of the legs either as full disclosure or on the basis of proportionality or on any other basis. So to that extent there seems little point for me to make lengthy submissions unless you call upon me to address you on any particular aspect. Thank you.
MS MTANGA IN ARGUMENT: Thank you Chairperson. My position is that I'm assisting the victims who are not here today. In regard to the oSizweni Police Station as indicated on the affidavits of Mr Msibi and Mr Ndwandwe, I'm not opposing this applicant. On the Glencoe railway station there are no victims. And then my position in regard to Mr Mazibuko who is linked to the oSizweni Police Station attack, in as far as his evidence is concerned, this incident took place two kilometres away from the police station and on that basis it is his submission that it cannot be argued by the applicants that his attack was consequent to the crossfire that took place at the police station and therefore it falls outside the ambit of this act.
Further to that it is also his submission, my submission on his behalf, that the fact that the Attorney-General included this attack on the indictment and it could be specifically linked to one of the co-accused of the applicant, Mr Tembinkosi at that time. There must have been some legal basis or some evidence linking it to the three applicants or to this operation at the time. The Committee has heard the evidence of Mr Mazibuko, he clearly said that in court it was said that the bullet that was found inside his car was linked or positively linked to the weapons that were used at the police station at the time. Unfortunately, the Committee is not in possession of those documents or the court documents.
CHAIRPERSON: Would it satisfy both sides if we declined to grant amnesty, if we formulate amnesty on the basis excluding an attack on Mr Mazibuko's car which occurred two kilometres, plus-minus two kilometres away from the police station?
MS MTANGA: Chairperson, that position would be a position that affects the applicants. In as far as Mr Mazibuko is concerned if the applicants are applying for that incident his evidence is that the incident took place two kilometres away from the police station. In the event that the Committee ...(intervention)
CHAIRPERSON: I think that if we would formulate an order granting amnesty in respect of the attack excluding an attack or a shooting on the motorcar, of the car of Mr Mazibuko, which occurred plus minus two kilometres away from the police station.
MR DEHAL: Mr Chairperson, the difficulty I have with that is I would much rather the order not make any mention of Mr Mazibuko because it's not an application for amnesty we seek given the evidence that it is two kilometres away. I would rather we be silent on that and if Mr Mazibuko wishes to take it any further he may well do so otherwise he may well reply upon the wording on the order.
CHAIRPERSON: Yes but on the other hand it wouldn't be clear to a person reading the order if we include everything round that incident. It may be argued then that we indeed granted amnesty for the shooting on the car of Mr Mazibuko.
MR DEHAL: Well, I'd rather have it this way. You must remember Mr Mazibuko does not oppose the application for amnesty, he has not said that. He has not ...(intervention)
CHAIRPERSON: No, he was opposing.
MS MTANGA: Chairperson, he is opposing.
CHAIRPERSON: He is opposing amnesty as far as the shooting on his car is concerned?
MR DEHAL: Yes, but here we are dealing just with two incidents, we've not come here to deal with the shooting on his car, we're dealing with the police station and the railway station incident. On those two we do not have a single witness that opposes those two and those get granted.
CHAIRPERSON: He's not opposing that section but we should then give a clear order so that his rights wouldn't seem to be - in fact you're not asking for that so it wouldn't affect your rights?
MR DEHAL: Correct, then perhaps what I should say is differently, I'd rather have it this way, rather than saying that amnesty is not granted in regard to Mr Mazibuko's incident, perhaps for the Committee to say no finding is made on Mr Mazibuko's incident because if no finding is made then it doesn't show as though application is refused to the applicants because they don't seek amnesty?
CHAIRPERSON: Yes, well we'll consider that. Thank you. Anything further?
MS MTANGA: Nothing further Chairperson. Or just to mention that the basis for Mr Mazibuko to oppose would be that there is lack of full disclosure in regard to his attack. That ends my submission on his behalf.
CHAIRPERSON: Thank you. Thank you for postponing your lunch and I hope to see all interested persons tomorrow morning at 9 o'clock and not at 10 o'clock please.
MR DEHAL: Mr Chair, I'm not here tomorrow as I said earlier.
CHAIRPERSON: So then perhaps we'll be in a position to start at 9?
MR DEHAL: Mr Chairperson, could I just ask in regard to the balance of the matters, could we have them adjourned because they were set down for today sine die to be dealt with by another Committee as we were brief yesterday?
CHAIRPERSON: Yes so it's not a part heard as far as that is concerned. Any Panel could deal with it.
MR DEHAL: Thank you, I'm indebted to you.
CHAIRPERSON: Yes. Or do you specifically request another Panel?
MR DEHAL: No, I have no objections to this Panel, Mr Chair. I'd actually prefer this Panel.
COMMITTEE ADJOURNS
