Amnesty Hearings

CHAIRPERSON: Are we now ready to proceed with the application of Peter Madyoli.

MR WESSELS: Indeed so Mr Chairman. My name for the record is J W Wessels, Advocate Wessels. I'm from the Port Elizabeth Bar. I'm appearing for Mr Madyoli, instructed by the attorney Namkosi Mshlantla and Associates also from Port Elizabeth.

CHAIRPERSON: Thank you. Shall we continue?

MR WESSELS: Thank you Mr Chairman. Mr Chairman, very briefly, this is an application by the applicant for amnesty pertaining to an incident when he as part of a group of people attack the occupants of a farmhouse in the Cradock area, and in the course of this attack the farmer, Mr Cronjé was shot and killed and his wife was shot and injured and there were also a large quantity of goods removed from the farm, and the motor vehicle as well was stolen. Subsequently the applicant together with a number of other persons appeared in the Supreme Court.

The applicant was convicted together with some of his co-accused and he ended up receiving the death sentence for the murder charge of which he was convicted. The death sentence was eventually set aside, well the conviction for the murder and the conviction for the attempted murder was eventually set aside on appeal and he is presently serving a term of 14 years imprisonment for robbery and housebreaking with the intent to steal and theft. The robbery and the housebreaking with the intent to steal and theft also pertains to that particular attack.

Just before I tender the evidence of the applicant in this matter, in order to possibly prevent confusion, I would respectfully refer the Committee to page two of the paginated documents, the bundle of documents, page 2, under paragraph 9(a). The particulars given under 9(a) 1 may be somewhat confusing and Mr Chairman. If you'd be prepared to just make the amendment there in the following sense and that is, what presently appears there is that:

"The act or omission or offences"

is given as:

"Murder, attempted murder and illegal possession of a firearm and ammunition.

That is not totally correct, it should read:

"Murder, attempted murder, robbery and housebreaking with the intent to steal and theft"

The illegal possession of the firearm can be deleted in toto. That conviction for the illegal possession of the firearm and ammunition was handed down by a totally different Court. That was the Regional Court here in Port Elizabeth. The applicant has served that sentence and it will serve no purpose to deal with that crime any further. So, there are only the four counts which pertains to this application.

Then again, on page 6 Mr Chairman, of the paginated documents, in paragraph (c) on page 6 we have the same situation that:

"On which charges"?

should read:

"Murder, attempted murder, robbery and housebreaking with the intent to steal and theft"

Again the:

"Illegal possession of firearms"

should be deleted.

ADV DE JAGER: Sorry Mr Wessels, is he now only serving a sentence for robbery?

MR WESSELS: And housebreaking with the intent to steal and theft.

ADV DE JAGER: He was not guilty on murder and attempted murder?

MR WESSELS: That was the position on appeal. The convictions on the murder and the attempted murder were set aside on appeal and he is presently serving a term of 14 years imprisonment for robbery and housebreaking with the intent to steal and theft, which sentence runs concurrently with the 14 years for the robbery. Those are the only sentences he is presently serving.

Just to take it further, if ...[intervention]

ADV DE JAGER: Ja, I don't understand because you say: he's served his sentence for the illegal possession and he's been acquitted or set aside for murder and attempted murder, so he can't be prosecuted on that again?

MR WESSELS: Not in a Criminal Court but as far as civil action is concerned, we are not aware of any civil action as yet, I don't know whether there were minors involved, so prescription would not necessarily run against minors so it would be necessary to apply for amnesty for the murder and the attempted murder even though he cannot be prosecuted for that again.

ADV DE JAGER: Ja, okay.

MR WESSELS: If I can just continue with what, the amendments we ought to make on page 6 of the paginated documents. I've dealt with 12(c), that is the top one, 12(c). The same position applies in respect of 12(e), again it is

"Murder, attempted murder, robbery and housebreaking with the intent to steal and theft"

In respect of 12(g), that is still on page 6 of the paginated documents, it reads:

"Sentence imposed if applicable: Death penalty, later altered to 14 years during 1991 after an appeal was heard"

Just for clarity's sake I'm just emphasising that the conviction for the murder and the attempted murder was set aside. So what remained for just the 14 years for the robbery and the 4 years for housebreaking with the intent to steal and theft, which was ordered to run concurrently with the 14 years.

Then on page 8 of the paginated documents - I apologise for these mistakes that have crept in but if we don't rectify it now it could lead to confusion. ...[intervention]

ADV DE JAGER: The trouble is, I think you should address us on whether you could have these amendments, it's new offences, different offences, for which no amnesty had been applied for timeously.

MR WESSELS: The Sentence Judgment of the Court a quo and the Judgment of the Appeal Court forms part of the documents and it is clearly set out there. What I ...[intervention]

ADV DE JAGER: It forms part of the documents and the application as submitted before us, but was it part of his application for amnesty when he applied for amnesty? Was it annexed to the application?

MR WESSELS: Well, our Evidence Leader might be able to assist. I do not have that information. I acted for the applicant at his trial together with my leader, Mr Fourie but that was many years ago. I did not prepare the documents in this matter. What I presume must have happened here is that when the application was prepared, the person drafting the application did not have all the information at hand, but there can be no doubt that that attack on the farm was, resulted in the applicant being convicted on a charge of murder, a charge of attempted murder, a charge of robbery, because the robbery was directed at attacking the occupants of that house and robbing them of their goods, and then the housebreaking charge which pertained to the breaking open of the garage and the stealing of the motor car of the deceased, which was eventually then taken to the location and burnt out.

So all along it's been one incident under different, well different offences were mentioned there but it was for that incident which the application for amnesty has been tendered all along. It's just a matter of getting all the details properly before the Committee.

CHAIRPERSON: May there not be a difference between the murder and attempted murder as being politically motivated? And the robbery and housebreaking has not been, which is why there was not an application for amnesty in respect of them, because as Mr de Jager has said, there is no application before us at the present time before us at the present time for amnesty in respect the robbery or the housebreaking and the cut-off date is long since passed.

MR WESSELS: Yes, that is probably correct as you put it Mr Chairman, that the reference to the robbery and the housebreaking was never mentioned in the documents before but if cognisance is taken of the contents of the statements which forms part of the documents as it appears on page 8, 9 and 10, then it appears that the whole intention, the whole motivation of going to that farm was to rob the occupants of their firearms, that is what it was all about. The murder ...[intervention]

CHAIRPERSON: ...[inaudible] his weapons. Page 9

"I, together with two others were instructed to disarm a certain farmer, remove his weapons"

MR WESSELS: And that was the robbery, that is where the robbery - that in fact was the basis of the robbery charge against the applicant, the robbing of the farmer of those items and the housebreaking pertained, as it appears in the Judgment of the Appeal Court - in fact we can look at the Judgment of the Court a quo, if I can just get the reference there, at Count 5, that was the housebreaking charge, Count 5 pertained to the breaking open of the garage and the stealing of the motor vehicle of the deceased.

ADV DE JAGER: But there's no mention been made in the application, even in the Annexure to the application, of anything being stolen.

MR WESSELS: If the Committee will just bear with me a moment, my recollection is that there is in fact reference to that. Again if I could just identify that? I think that is contained in the document which starts on page 12, the hand-written document, page 12 to 15. For instance on page 15

"When they got into the house they carried some goods and money which I don't know what they did with it. The following day we told Mhlauli that we didn't find any weapons there"

Then he says that he never took any goods. Now the conviction for the housebreaking and the conviction for the robbery was based, not only on his own participation but also on the basis of common purpose, as it appears from the Judgment of the Trial Court, which forms part of the ...[intervention]

CHAIRPERSON: Doesn't it appear that his instructions here was that he wasn't, there was no common purpose? He didn't steal anything, he doesn't know what they

"they carried some goods and money which I don't know what they did with it"

It was not stolen for the use of the party, on his basis here.

MR WESSELS: I think this particular aspect has been addressed in full in the affidavit which does not form part of the bundle of documents but which we have handed to the Committee Members in chambers and to which the applicant will be tested ...[intervention]

CHAIRPERSON: Yes, but that is after the time. The point that is being made by Mr de Jager is, was there an application made timeously in respect of these offences. He does at page 15 say

"I stole a Datsun van"

but he then says:

"I never took any goods from that farm"

MR WESSELS: Yes, that is as far as the applicant and that will be his evidence all along, that he personally did not take any goods.

CHAIRPERSON: And he doesn't know of any other goods taken by anyone else. He took something but he doesn't know what they did with it. So he is now seeking, as I understand it, to ask for amnesty in respect of robbery and housebreaking in respect of stolen goods and cash worth more than R19 000?

MR WESSELS: That is indeed so Mr Chairman, that is the, of which he was convicted because in toto that was what was missing there, that includes the value of the motor vehicle.

ADV DE JAGER: Mr Wessels, I don't know when this document on page 13 was lodged, but according to a date on the top it seems to faxed on the 9th of February 1998.

MR WESSELS: Yes again I am unfortunately not in a position to shed any light on that. Mr Mapoma might be able to assist as far as that is concerned but looking at the date, ex facie the document, it appears that that information was in response to an inquiry from the Amnesty Committee. So we possibly have to look at the correspondence which passed between the parties prior to that date. I don't have access to that.

ADV DE JAGER: You see Mr Wessels, I don't have a problem with amending certain particulars about an offence already sort of in the papers but introducing a new offence after the cut-off date I think, well perhaps we could leave it but I would you to address us as to whether can do it in all in terms of the Act.

MR WESSELS: Again, it is most unfortunate that the initial application, the Form 1, was not prepared with all this information but it's not a new incident, it all goes hand in hand with the ...[intervention]

ADV DE JAGER: And with the same incident ...[intervention]

MR WESSELS: With the very same incident where the farmer and his wife, where the farmer was killed and his was shot and injured. In that sense it's not something new, it is just elaborating upon what took place there and that will be the nature of his evidence, which is borne out by his convictions in the Court a quo and later in the Appeal Court. There's nothing new about all of this. He will only be elaborating on his personal participation in what took place there on the night of 1986.

So in that sense if it's necessary in that regard, I would ask the indulgence of the Committee to hear his evidence in this regard and if there's no objection from possibly the Evidence Leader or any other interested party in this, I will ask the Committee to allow him to elaborate on that, on those offences and to in fact apply then for amnesty for those offences.

What is important here as far as the applicant is concerned is the very fact that he is in no danger to even be charged again for the murder or the attempted murder. He still comes to this Committee admitting now for the first time that he was in fact the person that shot and killed. So that is possibly something that should rather be seen in his favour, that he is attempting to make full disclosure ...[intervention]

ADV DE JAGER: Ja, but you rightly pointed out that he could sued civilly for it.

MR WESSELS: That is so, only in the sense if there were minors involved, otherwise as far as Mrs Cronjé the farmer's wife was concerned, her claim would have prescribed and ...[intervention]

ADV DE JAGER: If she'd known who was the Defendant.

MR WESSELS: I beg your pardon, I didn't get that?

ADV DE JAGER: If she had known who she could sue, who was the Defendant and it's been denied and it's only coming forth now that he in fact should be the Defendant.

MR WESSELS: No, as far as Mrs Cronjé is concerned the applicant was convicted in the Court a quo.

ADV DE JAGER: Ja.

MR WESSELS: So there was a finding of the Court that he was responsible, so if she intended to sue then she had ample time to sue but ...[intervention]

ADV DE JAGER: But that very finding was overturned on appeal?

MR WESSELS: Only in 1991 which was long after the period of prescription would have started running against Mrs Cronjé but as far as minors are concerned, if there are any minors losing a breadwinner, we don't have any information as to whether there is a possibility of minors that would qualify for that.

ADV DE JAGER: Okay, just carry on.

CHAIRPERSON: Do you know who filled in this form?

MR WESSELS: Mr Chairman, I do not have that information. My instructing attorney is presently overseas with knowledge of the Evidence Leader, so I do not have information about that.

CHAIRPERSON: Who is your instructing attorney?

MR WESSELS: It is Namkosi Mshlantla and Associates. It is in particular Ms Mshlantla.

CHAIRPERSON: So this is yet another attorney acting for the applicant?

MR WESSELS: Well I don't know whether she acted right from the outset ...[intervention]

CHAIRPERSON: Well if you look at page 11 there's a letter from Cradock Advice Officer which says that during the trial the instructing attorneys were Smith Thabata and van Heerden.

MR WESSELS: Those were in fact my instructing attorneys at the criminal trial.

CHAIRPERSON: Yes.

MR WESSELS: So that is quite correct.

CHAIRPERSON: And then Moosa Waglay and Petersen appears to have arrived on the scene.

MR WESSELS: Yes, the were, according to the information there, from Athlone. Whether they handled -I see their name appears on a number of other applications too, whether they acted as the corresponding attorney for the filing of documents at the TRC, that is possibly their involvement Mr Chairperson.

CHAIRPERSON: Well we'll carry on and we will, we have not condoned this, we will hear the application and you can then argue the question and we will come to a decision as to whether he is entitled to apply. Does that suit you?

MR WESSELS: Very well, thank you Mr Chairman. Could I possibly just proceed along the lines that I dealt with to apply for the amendment then. I've dealt with 12(c), 12)e), the 12(g), I've given those particulars to the Committee, that is that he is effectively serving a 14 year period of imprisonment. Page 8 I've applied for those amendments, can I take it tentatively it has been noted but not necessarily granted? And then on page 9 of the bundle of documents, the second paragraph from the bottom, that as it stands there is misleading. It should read

"We were later arrested and charged. The case was heard at the Supreme Court Port Elizabeth during 1988 and 1989. I was found guilty on all counts. A death penalty was imposed. The sentence were altered on appeal to a term of imprisonment of 21 years"

That is incorrect, the documents, the Appeal Court Judgment is here. What happened here is the conviction and sentences were altered on appeal. It should read:

"The convictions and sentences were altered on appeal to guilty"

I'm sorry, to:

"merely guilty of robbery and housebreaking with the intent to steal and theft and sentenced to a term of imprisonment of 14 years"

I have the founding affidavit to the Committee Members. I will be dealing with the founding affidavit in the evidence but if the Committee will just permit me to the refer the Committee to paragraph 12 of the founding affidavit at this stage already, paragraph 12 of the founding affidavit which reads that:

"I was arrested together with Andile Dakusi, Luyanda Klaas and Mongezi who however escaped before the case was heard. We were charged"

Now that is quite correct, they were charged with a number of offences. I think there were eight offences in all. The one offence with which he was charged was the unlawful possession of firearms and ammunition. That is correct, he was charged with that but he was not convicted of that. So in paragraph 13 where he says that:

"I was convicted on all counts"

That is wrong, he was only convicted on Count 1, 2, 4 and 5, that is the murder, the attempted murder, the robbery and the housebreaking.

A little bit further down in paragraph 13, again there is mention of the period of 21 years. I don't know where the 21 years comes from, it is only 14 years.

CHAIRPERSON: They didn't alter the sentence did they?

MR WESSELS: No, they did not alter the sentence. The initial sentence for the robbery was confirmed, that was 14 years and the 4 years for the housebreaking was confirmed. The initial order that the 4 years run concurrently with the 14 years, that was also confirmed. It was just the 12 years for the attempted murder and the death sentence for the murder that was set aside after the convictions for those three counts were set aside.

There's just one last matter and that is, part of the bundle of documents at page 16 and 17, there is an indication that the former co-accused Andile Dakusi who was also present during this attack on the farm, that he applied for amnesty and his application was refused for the reasons set out on page 17.

Now I've not had sight of his application, I did not handle application. It would appear from what I gather from these two documents there was no formal hearing, it was just his application based on what he set out in his application form. It was on that basis that his application was refused and in particular it appears from page 17, that there he gained financially. Whether that was one of the strong motivations for refusing that application I do not know but what I do know, as far as Andile Dakusi is concerned, is that subsequent to the trial in the Supreme Court where we dealt with this attack on the farmer, I appeared for Mr Dakusi in the Regional Court at Cradock where he was also charged with a number of unrelated housebreaking charges.

Whether he applied for, whether those formed the basis of his application or whether they were part of his application I do not know. What I would ask the Committee to bear in mind is that the mere fact that Andile's application was not successful, not to hold that against the present applicant under circumstances where we do not know the details of Andile Dakusi's application and what facts he placed before the Amnesty Committee at the time.

Having said all of that Mr Chairman, I then propose to call the applicant, Mr Peter Madyoli. He will be testifying in Xhosa.

ADV POTGIETER: Your full names are Peter Madyoli, is that correct?

PETER MADYOLI: (sworn states)

EXAMINATION BY MR WESSELS: Thank you Mr Chairman.

Mr Madyoli, let us just first deal with your personal circumstances, how old are you?

MR MADYOLI: I'm 33 years old.

MR WESSELS: And are you married?

MR MADYOLI: No.

MR WESSELS: Do you have any dependants?

MR MADYOLI: Yes, Sir.

MR WESSELS: Children or other family members?

MR MADYOLI: I have two children and my mother as well.

MR WESSELS: During 1986, you resided at Cradock?

MR MADYOLI: Yes.

MR WESSELS: And in those years, 1984, '85, '86, was there a lot of unrest in Cradock?

MR MADYOLI: Yes, Sir.

MR WESSELS: Did you become a member of any organisation?

MR MADYOLI: Yes, Sir.

MR WESSELS: What was the name of the organisation of which you became a member?

MR MADYOLI: It was Cradoya.

MR WESSELS: Could you just explain, what was Cradoya, what sort of organisation was that?

MR MADYOLI: It was the residents organisation affiliated to UDF at the time.

INTERPRETER: Could the speaker either speak English or Xhosa please?

MR WESSELS: Mr Madyoli, will you be giving your evidence in Xhosa?

MR MADYOLI: I'll be speaking in Xhosa Sir.

MR WESSELS: Very well, let us proceed. What role did you play in this organisation?

MR MADYOLI: I was trying to acquire peace in the community. I was also helping the Area Committee with the things that occurred in the community.

MR WESSELS: Did you hold any rank in this organisation?

MR MADYOLI: As a comrade, a youth comrade, I was just trying to help or fight things that we were against at the time.

MR WESSELS: In your affidavit mention is made of a Marshall, could you just elaborate, what does that mean?

MR MADYOLI: A Marshall would hold peace. They would work in rallies to hold discipline, also in meetings.

MR WESSELS: Is that what you did?

MR MADYOLI: Correct.

MR WESSELS: So could you then conveniently be referred to as having been a Marshall at the time?

MR MADYOLI: Yes.

MR WESSELS: Now apart from being a Marshall of Cradoya, were you also a member of the self-defence unit?

MR MADYOLI: That is so.

MR WESSELS: And what was the purpose or objects of the self-defence unit at Cradock?

MR MADYOLI: It was to defend the community in the township or residents from the Boers who were shooting people, who threw teargas cans at us. The comrades would have meetings or the Area Committee would hold a meeting when there were complaints from the community. We then reached a decision to defend ourselves from Boers.

MR WESSELS: How did you go about reaching this decision?

MR MADYOLI: Comrade Mhlauli and all other comrades were there. We would talk to them and we would reach such decisions together.

MR WESSELS: When you refer to the Boers, who do you refer to?

MR MADYOLI: I'm talking about the people who did not want change, because at the time these people - Goniwe tried to show them and reason with them but they did not want to listen. I'm talking about the SAP, South African Defence Force, the CID. They would also be reserve farmers who would help the Boers.

MR WESSELS: Now you've mentioned the name of Mr Goniwe, could you just for the purpose of your application tell us who was Mr Goniwe?

MR MADYOLI: Matthew Goniwe was leading Cradoya at the time. Also when the Boers would come to the township he would be the one who tried to talk with them and reason with them that they should not provoke the people. He would work together, especially with comrade Mhlauli but I would also would work with him. I would go to his house sometimes, that's how I know Matthew Goniwe.

MR WESSELS: But in essence you would be taking your instructions from Mr Mhlauli?

MR MADYOLI: Correct.

MR WESSELS: When you talk about the self-defence unit there at Cradock at the time, was this only a small unit or did it consist of quite a lot of members?

MR MADYOLI: It was a small unit, we worked underground at the time.

MR WESSELS: And were you - I see in your application on page 1 of the paginated documents, you state that you were also a member of the ANC at the time, is that correct?

MR MADYOLI: Correct.

MR WESSELS: When did the problems involving the police take a particular turn or become particularly severe?

MR MADYOLI: It started in 1984.

MR WESSELS: And how did that affect you personally?

MR MADYOLI: Sometimes, when we would have a meeting in the community I would organise people to attend the meeting, even though at the time there were people who worked with the Boers. It then came out during that time that the Boers wanted me.

MR WESSELS: So was your name on a list?

MR MADYOLI: Yes.

MR WESSELS: And did you get to know of the names of others who were also on that list?

MR MADYOLI: Yes, Luyanda Klaas, Mongezi Zinalani and Andile Dakusi.

MR WESSELS: Yes, thank you. Now this gentleman Mongezi, his name will also be mentioned in another application which is to be heard by this Committee. Just tell us something about this Mr Mongezi, who was he and what sort of work did he do?

MR MADYOLI: Mongezi was a comrade of mine, we worked together in underground cells. The Boers were also after him at the time.

MR WESSELS: Was he shot and killed on a later date?

MR MADYOLI: Correct.

MR WESSELS: Were you working in 1984, '85, '86 and those years?

ADV DE JAGER: Could you kindly assist me, in paragraph 2

"I spent most of the time with Mongezi who had recently escaped from custody"

When was Mr Mongezi killed?

MR MADYOLI: In 1987.

ADV DE JAGER: Now here you state in paragraph 2 that he recently escaped from custody.

MR MADYOLI: That was 1984, that's when he escaped.

MR WESSELS: So subsequent to his escape in 1984, you had spent most of your time with Mr Mongezi, up until the time that he was eventually killed, is that what you want to convey to the Committee?

MR MADYOLI: Correct.

MR WESSELS: I asked you whether you were employed in those years, I'm referring particularly to '84, '85, '86?

MR MADYOLI: I was working in 1984.

MR WESSELS: What happened, or did anything in particular happen that you did not continue with your employment?

MR MADYOLI: I could not continue to work because the Boers were after me, I had to stop working.

MR WESSELS: What happened, can you just tell us? What resulted in you not continuing with your employment?

MR MADYOLI: The Boers wanted me because of my political activities. As I already said I used to help the Area Committee in organising certain things, that is how they got my name. They started harassing me, they would go to my workplace, they would also go home. They said that they could do anything with me if I did not want to work with them of help them. We looked at this carefully with the comrades and discussed it. Comrade Mhlauli was also involved as he was instructing us at the time.

MR WESSELS: Was your employer satisfied with you being harassed in this manner?

MR MADYOLI: No, because I used to work in a firm, in a factory.

MR WESSELS: Did you then leave your employment because of this?

MR MADYOLI: Correct.

MR WESSELS: And did you the continue solely with your political activities in the Cradock area?

MR MADYOLI: Correct.

MR WESSELS: You've mentioned that your family was also harassed the police.

MR MADYOLI: Correct.

MR WESSELS: Could you just elaborate on that very briefly, in what manner were they harassed?

MR MADYOLI: The reason they were harassed is because the Boers were looking for me. They would beat them up because they wanted to know where I was. They would say they don't know where I was and that they should look for me.

MR WESSELS: You then continue in the founding affidavit on page 2 where you state that the Cradock area was very active and the situation was very tense and volatile, do you adhere to that?

MR MADYOLI: Correct.

MR WESSELS: Mr Matthew Goniwe was eventually killed, in what year was that?

MR MADYOLI: 1985.

MR WESSELS: And after the death of Mr Goniwe and the other members that were killed with him, what was the atmosphere between the residents at Cradock and the police in particular?

MR MADYOLI: The people were very ill-treated during that time and politically it was chaos.

MR WESSELS: And would say as you state here in your founding affidavit, that in 1986 in particular the unrest was at its highest?

MR MADYOLI: Correct.

MR WESSELS: Now as far as the farmers were concerned, what was your understanding or belief as to the role that the farmers might have played in all of this?

MR MADYOLI: What would happen in that when our houses were being raided they would be present. They would provoke people, beat them up. Sometimes people would disappear because of these Boers, this is why we reached such decisions.

Comrade Mandire was also discussing this with us. We reached the conclusion that we should disarm these Boers so that we can defend the community against the SADF and the SAP because people were very tense.

MR WESSELS: Let us just get clarity on your use of the word: "Boers", are you including under Boers, the police?

MR MADYOLI: At the time - you when I'm referring to Boers, at the time all Boers were oppressive.

MR WESSELS: What I just want to understand from your evidence, when you use the word: "Boers", do you include under that word, the police?

MR MADYOLI: Advocate Wessels, when I talk about the Boers, I refer to each and every person who helped the apartheid regime, every person who supported the apartheid regime.

MR WESSELS: Including the police?

MR MADYOLI: Correct.

MR WESSELS: When you talk about Boers, do you also intend to include the farmers?

MR MADYOLI: Yes.

MR WESSELS: Let us deal with the farmers in particular because that is of importance in this particular application. Was there any connection as far as you understood the situation, between the farmers and the police or the farmers and the SANDF?

MR MADYOLI: Yes, I would say so. The police, the South African Defence Force and the farmers worked together.

MR WESSELS: You've mentioned the fact in your founding affidavit, that the farmers acted as police reservists and assisted the police during the raids, could you just elaborate on that please?

MR MADYOLI: Correct.

MR WESSELS: So was your understanding that certain farmers were in fact police reservists?

MR MADYOLI: Yes.

MR WESSELS: And in that capacity as police reservist assisting the police, what was your belief as far as the possession of possible weapons were concerned?

MR MADYOLI: We were informed by Luyanda Klaas, both Andile and I, that these Boers are mostly armed, most of them are armed.

MR WESSELS: And did you have any interest in the fact that they were armed?

MR MADYOLI: Yes.

MR WESSELS: What was your interest?

MR MADYOLI: As those people were armed we wanted to disarm them and use their arms in the townships to defend the community.

MR WESSELS: Against whom?

MR MADYOLI: Against the police, the SADF and the CID.

MR WESSELS: Did you have any information pertaining to Mr and Mrs Cronjé in particular? Those are the victims of this attack.

MR MADYOLI: Correct.

MR WESSELS: What information did you have?

MR MADYOLI: The information we got about Mr and Mrs Cronjé is that they had arms in the farm. We got this information from Luyanda Klaas.

MR WESSELS: And was any decision taken in respect of the Cronjé's?

MR MADYOLI: Yes, we - Mr Mhlauli said that we should disarm them and take their arms.

MR WESSELS: So will you then continue from there, what did you do after this instruction had been given?

MR MADYOLI: We left the base on the 24th, Mongezi, Andile, Luyanda Klaas and myself, the four of us. We got there at about eight but when we got there we realised that we could not attack, we then went back. We slept at the base and decided that we are going to go the next day, this was the 25th.

We got there at about eight. When we got there on the 25th I told them to wait outside whilst I looked around what was going on. When I got there I cut the telephone wires. There was a grill at the door or a security gate at the door. Luyanda went in, Mr Cronjé opened the door and he asked who we were and what we wanted. We did not say anything, it was dark. He then called his dogs.

Mrs Cronjé then came out or Mr Cronjé followed the dogs. I then told him to lift his arms. He did not do that, what he did is he touched his right side. I shot at him, unfortunately he died. I went inside, inside we found Mrs Cronjé. I shot at her in the passage, after that I got out. After that I went outside to see if there were neighbours or any noise. There wasn't any so I went back inside and I found Andile and Mongezi, they were by the door. Mongezi then took Mrs Cronjé and he wanted to stab her. I said he shouldn't. We then searched. Whilst they continued to search I went outside ...[intervention]

ADV DE JAGER: Could you kindly go a little bit slower.

MR MADYOLI: I'm sorry.

I then went to other rooms and searched and didn't find anything. When I went to the kitchen I found a key, I found a car key, Datsun 1600. I went to the garage and broke the padlock. When I got there I found five litres of oil. I poured oil in the house, all over the house.

I then told Mongezi and Luyanda that after they had finished searching they must burn the house. I then took the car with Andile and left. When we got to the township we burnt the car.

We waited for Mongezi and Luyanda Klaas, they eventually got there. They had money and some goods that they had stolen. After that the following day we spoke about what we were going to do about the money. I said that we should buy arms. I said I would get together with comrade Mandira the next day and tell him and I told him that we did not find any arms. I told him that I drove the car or took the car and burnt it.

At the time when I was telling comrade Mandira, he asked if all of use were safe and I said yes. He said that we could not talk then because there were people all over who belonged to the system. He then said we would meet again. We were not able to meet because it was very tense and the Boers were all over. We bought arms with the money, R5's and R1's.

MR WESSELS: Yes?

MR MADYOLI: We bought a 765, 38 special, 9mm pistol, 15 shooter. After that, after we bought the arms we hid them, Mongezi and I. After we'd hidden the arms we decided to hide elsewhere because in the township there were people who belong to the system all over. Luyanda and myself came to Port Elizabeth. We did not find Andile at that time. I was arrested in 1986, June, in Port Elizabeth.

MR WESSELS: You were subsequently charged in the Supreme Court on various counts, all pertaining to that attack on the Cronjé's farm.

MR MADYOLI: Correct.

MR WESSELS: The charges which you were convicted of was one of murder of the farmer.

MR MADYOLI: Correct.

MR WESSELS: The attempted murder of the farmer's wife, Mrs Cronjé.

MR MADYOLI: Correct.

MR WESSELS: A robbery, that is the stealing or taking with force and violence, the property belonging to the Cronjé's.

MR MADYOLI: That is correct.

MR WESSELS: And also a charge of housebreak with the intent to steal and theft pertaining to the breaking open of the garage and the stealing of the motor car.

MR MADYOLI: That is correct.

MR WESSELS: You were initially sentenced to death for the murder.

MR MADYOLI: That is correct.

MR WESSELS: And 12 years for the attempted murder.

MR MADYOLI: Yes.

MR WESSELS: And 14 years for the robbery.

MR MADYOLI: Correct.

MR WESSELS: And 4 years for the housebreaking with the intent to steal and theft.

MR MADYOLI: That is correct.

MR WESSELS: The sentences for the attempted murder, the robbery and the housebreaking was ordered to run concurrently to a certain extent, which resulted in a total sentence of 20 years imprisonment.

MR MADYOLI: Yes.

MR WESSELS: And for the murder you were sentenced to death.

MR MADYOLI: That is correct.

MR WESSELS: You were transferred to Pretoria Central awaiting the death sentence and also the outcome of your appeal.

MR MADYOLI: That is correct.

MR WESSELS: And your appeal was eventually finalised being successful to the extent that your conviction for the murder and the attempted murder was set aside.

MR MADYOLI: That is correct.

MR WESSELS: But your conviction for the robbery and the housebreaking with the intent to steal and theft was confirmed as was the sentences imposed on those two offences.

MR MADYOLI: That is correct.

MR WESSELS: The total result was that you were sentenced to 14 years imprisonment effectively and which you are presently serving.

MR MADYOLI: That is correct.

MR WESSELS: I want to deal with your motivation. We have dealt with this at the outset but just to recap the situation, when you proceeded to that farm, what was your sole motivation of going to that farm for?

MR MADYOLI: As I have already said, our intention was to disarm them and take their weapons.

MR WESSELS: When you proceeded to the farm, was it your intention to go to that farm to go and kill somebody?

MR MADYOLI: No, it was not our intention to kill.

MR WESSELS: Was it your intention to use force should the need arise?

MR MADYOLI: Please repeat your question.

MR WESSELS: Was it your intention to use force should the need there for arise?

MR MADYOLI: Correct.

MR WESSELS: And for that purpose, were you armed when you proceed, you yourself, were you armed when you proceeded to that farm?

MR MADYOLI: Yes.

MR WESSELS: What sort of weapon did you have on you?

MR MADYOLI: I had a 9mm pistol.

MR WESSELS: Were any of your fellow members armed, to the best of your knowledge?

MR MADYOLI: No.

MR WESSELS: You have explained to the Committee how Mr Cronjé confronted you or you confronted Mr Cronjé outside his house and you asked him to put his hands up when he then in response took to something on his hip, what did you think was he doing when he took to something on his hip?

MR MADYOLI: When I ask somebody to lift their arms and they put their hands on the waist, that means that they are armed and they are trying to get hold of the gun that they've got on the waist.

MR WESSELS: Is that then why you shot at Mr Cronjé when he did what you explained he did?

MR MADYOLI: Correct.

MR WESSELS: When you shot at him was it your intention to kill him or was it just merely to injure him at the time?

MR MADYOLI: It was not my intention to kill him, I just wanted to injure him.

MR WESSELS: And did you fire only the one shot at Mr Cronjé?

MR MADYOLI: Correct.

MR WESSELS: But where did that shot strike Mr Cronjé?

MR MADYOLI: I thought that I was shooting at the hat(?) but the bullet landed on his head.

MR WESSELS: I'm sorry, I didn't get that, you thought you were shooting at?

MR MADYOLI: I thought I was shooting him in the body but the bullet ended up on the head.

MR WESSELS: And he died virtually immediately.

MR MADYOLI: Correct.

MR WESSELS: After you had entered the house you also fired a shot at Mrs Cronjé?

MR MADYOLI: Yes.

MR WESSELS: Was that just the one shot?

MR MADYOLI: Yes.

MR WESSELS: Where did that shot strike her, do you know?

MR MADYOLI: I don't know.

MR WESSELS: What was the purpose when you shot at Mrs Cronjé?

MR MADYOLI: I knew that they get trained.

MR WESSELS: I'm sorry, I don't understand this now.

MR MADYOLI: The reason why I shot at her was because they are well trained where guns are concerned.

MR WESSELS: And were you satisfied in your mind, before you proceeded to that farm, that you would most likely find weapons or guns at that farm?

MR MADYOLI: Yes.

MR WESSELS: Is that on the information of Luyanda?

MR MADYOLI: Correct.

MR WESSELS: Had Luyanda been working on that farm some time previously?

MR MADYOLI: There was a comrade that was there. The reason why he gave us this information is that he came with a gun that he'd taken from the farm.

MR WESSELS: Did you at the time when the farmhouse was ransacked, find any weapons at the farm?

MR MADYOLI: No, we did not find any weapons.

MR WESSELS: Did the actions which you took in attacking this farm assist the cause in any way?

MR MADYOLI: Yes, a lot.

MR WESSELS: Could you just elaborate on that?

MR MADYOLI: Yes, I will elaborate. In some farms we would find arms. We wouldn't find the people there, the owners of the farm there and we would take the arms. That showed that ...[intervention]

INTERPRETER: The interpreter could not understand the speaker.

MR MADYOLI: At the time the reason why this occurred at the Cronjé farm was that the police were shooting at each other, the police and the comrades and we could, it was difficult to continue normally.

MR WESSELS: What I'm trying to understand is how did the attack on the farm eventually help you or help the SDU, self-defence units or Cradoya in achieving their objectives.

MR MADYOLI: Please repeat your question.

MR WESSELS: What I'm trying to find out from you is, there was this attack on the farm, on the Cronjé's farm and money was found and certain other objects which were sold and the money used to buy arms, is that correct?

MR MADYOLI: Correct.

MR WESSELS: Now how did this help to achieve the objectives of Cradoya or the SDU's, the self-defence units at Cradock?

MR MADYOLI: We got the money and we bought arms. The police could not continue in the way that they did before because we were fighting back at them, we were armed. That is how it helped the self-defence unit and the community.

MR WESSELS: Did you believe that you were acting throughout with the support of Cradoya?

MR MADYOLI: Correct.

MR WESSELS: So as it is stated in paragraph 16(c) of your founding affidavit, that this crime, this attack that you've been describing to the Committee, that

"It was committed or was performed with a political objective of liberation my community from oppression, bringing peace and stability within the community"

Do you adhere to what is set out there?

MR MADYOLI: Yes.

MR WESSELS: And have you now made a full disclosure to this Committee about the events of that particular night?

MR MADYOLI: Correct.

MR WESSELS: How do you feel about what had taken place? Are there any expressions that you wish to air?

MR MADYOLI: I would like to say to the TRC and the victims, I am sad because of what happened and this is why I am asking for forgiveness from the victims. This is why I am here before the TRC requesting amnesty, because things that happened then were as a result of the oppressive ways we lived under in Cradock. I ask for forgiveness from the entire Cronjé family.

MR WESSELS: Did you personally gain anything from your actions there that night?

MR MADYOLI: No, I did not personally gain anything.

MR WESSELS: And was your action in attacking the farm motivated by personal malice or ill will or any spite or anything personal or was it solely for the purpose of achieving the objectives which you have testified to?

MR MADYOLI: It was not for any personal gain, it was under the intentions of the organisation. I did what I did with all my heart especially because of the conditions we lived under.

MR WESSELS: Your founding affidavit contains certain facts, most of which you have touched on during the course of your evidence here but as far as there may be facts in your founding affidavit to which you have not testified, do you ask the Committee to incorporate your founding affidavit as part of your application to this Committee?

MR MADYOLI: Correct.

MR WESSELS: Thank you Mr Chairman, that is the evidence in support of the application.

NO FURTHER QUESTIONS BY MR WESSELS

CROSS-EXAMINATION BY MR MAPOMA: Thank you Sir, I would like to refer you to your affidavit which you have just filed, page 2, the second paragraph where you refer to comrade Mhlauli as well as the late Matthew Goniwe. When you refer to comrade Mhlauli, who exactly do you mean, precisely which Mhlauli are you talking about?

MR MADYOLI: It's the comrade that was instructing me.

MR MAPOMA: What is his first name?

CHAIRPERSON: Is he the person you refer to in paragraph 1 of your affidavit as Mantura Mhlauli?

MR MADYOLI: It is Mandira Mhlauli.

MR MAPOMA: Do you know Mbongikosi Mhlauli?

MR MADYOLI: Very well.

MR MAPOMA: Is he the same person as Mandira?

MR MADYOLI: Correct.

ADV DE JAGER: What is his name again, the second name you mentioned?

MR MADYOLI: Mbongikosi.

MR MAPOMA: Is he the person who instructed you to go to the farm?

MR MADYOLI: Correct.

MR MAPOMA: Was he a member of the self-defence unit?

MR MADYOLI: He was generally a comrade involved. He is the one who was instructing us with this attack was concerned.

MR MAPOMA: I take it that there was the self-defence unit which was working under Cradoya, am I correct?

MR MADYOLI: Correct.

MR MAPOMA: Now what I want to find out is whether Mr Mbongikosi Mhlauli was a member of the SDU which you say he was working under Cradoya.

MR MADYOLI: Yes, because he was commanding us as the SDU people.

MR MAPOMA: Now when he instructed you to go to the farm, what precisely was his instructions?

MR MADYOLI: He said that we should disarm the Boers at the farm.

MR MAPOMA: Now, I would like to refer you to page 9 of the bundle of documents. You say there in the first paragraph, the second sentence

"Where possible we would also do"

Oh, let me read the entire paragraph. You say there:

"It was our view that we would be able to disarm the farmers easier than it would be the case with the SAP and"

...[intervention}

ADV DE JAGER: Could you - you're referring to page 9?

MR MAPOMA: Yes, Sir, page 9 of the bundle and the first paragraph of that page 9 of the bundle.

ADV DE JAGER: Oh, yes.

MR MADYOLI: Correct.

MR MAPOMA: You go on to say

"Where possible we would also do so without inflicting violence on them. However, where we met resistance force would be used"

Do you confirm that?

MR MADYOLI: Correct.

MR MAPOMA: Now let's go to the farm. Now when you arrived in the farm, at the time you shot Mr Cronjé, did you encounter any resistance from him?

MR MADYOLI: Yes, he did resist because he did not lift his hands in the air, what he did was he took his hand to his waist.

MR MAPOMA: Is that what you call resistance?

MR MADYOLI: Correct.

MR MAPOMA: You say you shot him not with the intention to kill him but to injure him and yet you aim at the body, would you explain that? How do you aim at the body of a person and yet you don't intend to kill that person?

MR MADYOLI: It's not easy for a person to die when you shoot at them in the body but in the head it's easy for a person to die.

MR MAPOMA: Now when you shot Mrs Cronjé inside the house ...[intervention]

CHAIRPERSON: Before you go on.

I take it you went and examined Mr Cronjé's body to see if he did have a gun at his waist?

MR MADYOLI: That is correct Sir.

CHAIRPERSON: And was there one there?

MR MADYOLI: Unfortunately we didn't find a gun, we found a torch.

ADV DE JAGER: But I presume he had the torch in his hand and was shining the torch, it wasn't in his waist belt?

MR MADYOLI: It was not in his hand.

ADV DE JAGER: So he was walking in the dark with the torch but not shining it?

MR MADYOLI: There was a light on outside. There was a light on the front.

MR MAPOMA: Now inside the house, was there a light on?

MR MADYOLI: It was dark in the house.

MR MAPOMA: When you shot Mrs Cronjé, did you encounter any resistance from her before you shot her?

MR MADYOLI: I came across her at a corner. I did not know whether she was armed or not and I knew that these people were well trained, that is why I shot at her.

MR MAPOMA: No, my question is, did you encounter any resistance from Mrs Cronjé which led you to shoot at her?

MR MADYOLI: No.

MR MAPOMA: You shot at her simply because you assumed that she must be armed?

MR MADYOLI: Correct.

MR MAPOMA: How many shots did you fire at her?

MR MADYOLI: One shot.

MR MAPOMA: In the Court's judgment - I'm sorry Sir, I don't know the page but this question I'm going to ask I don't think will necessarily in the page. In the Judgment it is said that you first fired a shot at her and you missed her and then you fired a second shot which struck her, is that correct?

MR MADYOLI: No, that is not correct.

MR MAPOMA: When you shot at Mrs Cronjé she was running away, was she not?

MR MADYOLI: She was coming towards me.

MR MAPOMA: Now you found the car keys and then proceeded to the garage, what was the purpose of going to the garage now?

MR MADYOLI: I went to check for oil or petrol.

MR MAPOMA: What were you going to do with the oil or petrol?

MR MADYOLI: ...[inaudible]

END OF TAPE - POSSIBLE WORDS LOST

MR MAPOMA: You were not instructed to go burn down the house, why would you burn down the house now?

MR MADYOLI: I was trying to show the government of the day that as they were killing our people so that apartheid can continue, I was fighting back, I was retaliating.

MR MAPOMA: In the house you searched for weapons and you didn't find one, is that ...[intervention]

ADV DE JAGER: Could I just on the question here - you wanted to show the government that you were fighting back but how would the government know that it was you or your organisation which were fighting back? Did you publish in the newspaper saying: "Listen, we're fighting back. I acted or my organisation acted"? How would they know that you were a political organisation fighting back at that stage?

MR MADYOLI: The government was armed, we were not armed, we were in a guerrilla warfare. It was in the newspaper, in the front page of the newspapers, that is was Luyanda Klaas and myself that were guilty of this.

ADV DE JAGER: When was that in the newspapers, after your arrest or before?

MR MADYOLI: 1986.

MR MAPOMA: Are you saying that when you were attacking there you knew that it would be publicised in the paper?

MR MADYOLI: It was in the newspapers, as I've said to you.

CHAIRPERSON: But that was after you had been arrested wasn't it?

MR MADYOLI: Correct.

CHAIRPERSON: Did you expect to be arrested?

MR MADYOLI: No, we did not want to be arrested. When you are in the struggle and you are a freedom fighter, you don't do that to be arrested.

MR MAPOMA: Were you carrying the car keys in order to get petrol in the garage, when you went to the garage?

MR MADYOLI: Correct.

MR MAPOMA: In the house you searched for weapons, you didn't find any, isn't it so?

MR MADYOLI: Correct.

MR MAPOMA: Then why did you not go back and report to your commander that the mission has been unsuccessful?

MR MADYOLI: I found car keys, I left in it and I was going to burn the car and I told my commander what had happened after that.

MR MAPOMA: Why did you take the car away?

MR MADYOLI: Because of the distance, it was quite far off.

MR MAPOMA: So are you saying you took the car only for the purpose of driving from the farms to the location?

MR MADYOLI: Correct.

ADV DE JAGER: How far is the farm from the township where you stayed?

MR MAPOMA: I could not show you or demonstrate in any way in the hall. I can drive, I don't have a driver's license therefore it's difficult to estimate the number of kilometres.

CHAIRPERSON: Why leave the other two behind if it was quite a distance?

MR MADYOLI: They said - Luyanda Klaas as he had found a gun there, he said he would continue to search with the other comrade.

CHAIRPERSON: Repeat that.

MR MADYOLI: I'm saying that Luyanda said they would continue to search because in that farm previously he found a gun.

CHAIRPERSON: Yes, well why couldn't you wait for him while they continued to search?

MR MADYOLI: We couldn't wait for them because that was the place of the scene, they would see how they go back themselves.

ADV DE JAGER: Did you take the TV with you in the car?

MR MADYOLI: No.

ADV DE JAGER: You're aware that a TV was involved amongst the goods that had been stolen?

MR MADYOLI: Yes, I do know about that, I heard in Court.

ADV DE JAGER: Now did they carry the TV on foot?

MR MADYOLI: I wouldn't know because I left them behind.

ADV DE JAGER: In whose possession was the TV found?

MR MADYOLI: I don't know but there was somebody in Court at the time who spoke in connection with the TV.

ADV DE JAGER: And what did this person say?

MR MADYOLI: The person said how they got the TV.

ADV DE JAGER: Who was this person?

MR MADYOLI: Ngozemba.

MR MAPOMA: What political objective did you intend achieving by driving away in the motor vehicle from the farm?

MR MADYOLI: I just wanted to escape from the place of scene. I did not want to sell the car or anything like that, I wanted them to find their car burnt.

CHAIRPERSON: Who to find the car burnt?

MR MADYOLI: The owner. ...[intervention]

CHAIRPERSON: Who you just shot through the head?

MR MADYOLI: I could not help that he died at that time.

CHAIRPERSON: You knew he died, you must have seen that when you went to the body to look for the gun, didn't you?

MR MADYOLI: As I have already said he died instantly.

CHAIRPERSON: So how can you now say you wanted the owner to find the car burnt, when you knew he had died instantly?

MR MADYOLI: They should know that the people who supported the government of apartheid were being fought and that we did not take their car for selling it, we took it to burn it ...[intervention]

INTERPRETER: The interpreter did not hear the last part of the statement.

MR MADYOLI: I was saying that as they were working together with the apartheid government the government was going to buy them another car because they worked together with them anyway.

CHAIRPERSON: Are you being serious in that answer?

MR MADYOLI: No, I'm not serious in that, I don't mean it literally but they worked together with the government. Somehow the government would pay the car back because they worked together.

MR MAPOMA: Mr Madyoli, I take it that you are aware that for you to receive amnesty you must show that the at for which you seek amnesty must be an act associated with a political objective.

MR MADYOLI: Correct.

MR MAPOMA: Now, how do you put robbery or theft of this car of the deceased into the politics? What political objective is it that you intended achieving by driving away with that car?

MR MADYOLI: This is how I will explain: Mr Chairperson, I was not going to gain anything from that car. The owner of the car supported apartheid, that is why I burnt the car. I knew that the government somehow would pay this person back because they worked together with the government of apartheid.

CHAIRPERSON: But you have already said you knew this person was dead, you had just killed him. How was the government going to pay him back?

MR MADYOLI: The government would pay even the family because they all worked together, they all supported the apartheid government. The government was going to pay the family back somehow in connection with the car.

CHAIRPERSON: ...[inaudible]

MR MAPOMA: I'm not yet finished.

CHAIRPERSON: No, but can you go into a different matter. Would this be a suitable stage for the adjournment?

MR MAPOMA: Yes, Mr Chairperson.

CHAIRPERSON: We'll take the adjournment now till 2 o'clock.

COMMITTEE ADJOURNS

ON RESUMPTION

PETER MADYOLI: (s.u.o.)

CHAIRPERSON: Carry on.

MR MAPOMA: Thank you Sir.

Mr Madyoli, when you left in the car from the farm, what goods were you carrying in the car?

MR MADYOLI: There was nothing in the car.

ADV DE JAGER: Was it a bakkie or a car?

MR MADYOLI: It was a bakkie.

MR MAPOMA: Thank you Chairperson.

So, do I understand you to mean that you stole only a bakkie from the farm?

MR MADYOLI: Correct.

MR MAPOMA: Then you have applied for amnesty for robbery, what is it that you robbed from the farm?

MR MADYOLI: All this happened at the same time, it's the same incident when Cronjé died. So now they say that if you are part of the scene you are guilty even though I did not break into the house because Mr Cronjé opened the door himself.

MR MAPOMA: No, I'm asking about robbery now, what is it that you robbed?

MR MADYOLI: Clearly the car.

MR MAPOMA: Then what about cash?

MR MADYOLI: It's Mongezi and Luyanda who brought the money.

MR MAPOMA: Who brought the TV?

MR MADYOLI: Please repeat your question.

MR MAPOMA: Who took the TV from the farm?

MR MADYOLI: As I have already said, I took the car.

MR MAPOMA: No, please answer my question, I'm asking about the TV, not the car.

MR MADYOLI: I saw the TV in Court during the case.

MR MAPOMA: So are you saying you don't know who stole the TV from the farm?

MR MADYOLI: I don't know.

MR MAPOMA: Do you know at all that the TV was stolen by your group from the farm?

MR MADYOLI: Please repeat your question.

MR MAPOMA: Do you know at all if the TV which you said you saw in Court, was stolen by your group from the farm?

MR MADYOLI: There's an echo in the earphones, it's difficult to hear properly.

MR MAPOMA: What was your answer?

MR MADYOLI: ...[no English translation]

ADV DE JAGER: I think you should put down and take your hand away from the ...[intervention]

INTERPRETER: It's a technical problem Sir.

MR MADYOLI: As I have already said, I heard in Court that a TV set had been stolen as well.

MR MAPOMA: Do you admit that the TV was stolen by your group or yourselves?

MR MADYOLI: That is correct.

MR MAPOMA: And who took the cash?

MR MADYOLI: Mongezi and Luyanda Klaas brought the money because we left them behind whilst they continued to search the house.

MR MAPOMA: And the goods, clothes in particular, who took the clothes away?

MR MADYOLI: As I have already said, everything was brought by Mongezi and Luyanda.

MR MAPOMA: And what became of the goods, the clothes in particular?

MR MADYOLI: I told them that I'm going to meet with comrade Mhlauli, Mandira Mhlauli, to report back.

MR MAPOMA: You have not answered my question, what became of the goods that were taken from the farm, in particular the clothes?

MR MADYOLI: I heard that Mongezi sold the clothing to a certain lady.

MR MAPOMA: Do you know the lady?

MR MADYOLI: I have forgotten the name but facially I know her.

MR MAPOMA: I understand in Court there was an allegation that, or in fact there was evidence by a Elizabeth Maluzi and Agnes Panziso, do you know those persons?

MR MADYOLI: Yes.

MR MAPOMA: And you are aware that they gave evidence in Court that you sold them some stolen goods from the farm, are you aware of that?

MR MADYOLI: Yes, I'm aware of that.

MR MAPOMA: Do you admit that it was correct or not?

MR MADYOLI: It was not the truth.

MR MAPOMA: So you are saying it's Mongezi who sold those goods?

MR MADYOLI: Correct.

MR MAPOMA: Then what did Mongezi do with the money, the proceeds?

MR MADYOLI: I wouldn't know, I don't know what he did with the money.

MR MAPOMA: Which money was used to buy arms?

MR MADYOLI: It's the money they arrived with.

ADV DE JAGER: How much was it?

MR MADYOLI: I can't remember how much it was.

MR MAPOMA: Do you know where they got that money which they used to buy weapons?

MR MADYOLI: Please repeat your question.

MR MAPOMA: The money they used to buy weapons, do you know where they got it from?

MR MADYOLI: It's the money they got from Mr Cronjé's house.

MR MAPOMA: Okay. To your knowledge, were the proceeds of the sale of those goods which were stolen from the farm used to buy weapons?

MR MADYOLI: Perhaps they bought weapons with the money, the comrades.

MR MAPOMA: When you were arrested in Port Elizabeth, is it not correct that you were carrying some weapons with you, in fact a gun with you personally?

MR MADYOLI: Yes, that is true.

MR MAPOMA: Was the gun one of those weapons which were bought out of the proceeds of the farm attack?

MR MADYOLI: That is the gun I had before, the same gun I used to shoot at Mr Cronjé.

MR MAPOMA: Was that gun yours personally or was it a gun belonging to the self-defence unit?

MR MADYOLI: As I was a member of the self-defence unit I had to be armed because the police were after me anyway.

MR MAPOMA: I take it that the arms of the SDU of Cradock were used to protect the community of Cradock?

MR MADYOLI: It is not absolutely so because we were defending anybody, any South African who was oppressed by the Boers, not particularly people from Cradock who were in the struggle.

MR MAPOMA: So are you saying when you were armed at Port Elizabeth you were also carrying out your duties as a member of the SDU?

MR MADYOLI: Correct.

MR MAPOMA: Now the last question. Mr Madyoli, the ANC in its submission to the TRC made a submission to the fact that at some point there two kinds of SDU's, (1) the genuine SDU's who were protecting the community, number (2), those who were projecting themselves as SDU's yet indulging in criminal activities. Which one of these two kinds of SDU's did yours fall into?

MR MADYOLI: It is the kind that was protecting the people.

MR MAPOMA: Thank you, no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Any re-examination?

RE-EXAMINATION BY MR WESSELS: Thank you Mr Chairman.

Mr Madyoli, if you would just turn to page 11 of the bundle of documents, this is now in connection with this very last question that you were asked. Page 11 of the bundle of documents contains a letter from the Cradock advice office signed by two gentlemen, the one a Mr Ntombela, do you see that? And a Mr Ngalo.

MR MADYOLI: That is correct, I can see it Sir.

MR WESSELS: Now these two gentlemen that signed this document, were they connected to the SDU at Cradock at all at the time in 1986?

MR MADYOLI: Yes, these are the comrades that we would contact. We would work together in some instances.

MR WESSELS: What I'm asking you is, were they connected to the SDU, the self-defence unit in particular or were they only part of the UDF?

MR MADYOLI: There were confined to the office but they knew exactly what was going on in the community. This is why I was saying that we would always contact them.

MR WESSELS: Mr Chairman, what I'm about to deal with is a document which was retrieved in the course of the adjournment, could I just produce this document to the applicant, copies can be made available to yourself and the other Members of the Committee.

This appears to be the first application by the applicant, if he can just confirm that. It does not form part of the bundle of documents although it ought to have formed part of the bundle of documents but it could give clarity as to the question of the robbery that was raised at the outset.

CHAIRPERSON: Carry on with it.

MR WESSELS: Thank you Mr Chairman.

Mr Madyoli, this document that I now showed to you, at page 6 of this document is a signature, whose signature is that?

MR MADYOLI: It is my signature.

MR WESSELS: Was this the first application for amnesty that was prepared?

MR MADYOLI: Correct.

MR WESSELS: Thank you Mr Chairman. Could I possibly ...[intervention]

CHAIRPERSON: ...[inaudible] identify the document, should be say that it is dated the 17th of April 1996.

MR WESSELS: Could I possibly suggest Mr Chairman, that we refer to the founding affidavit as Exhibit A and then this document as Exhibit B to facilitate matters? I have no other questions, thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR WESSELS

ADV DE JAGER: I note in Exhibit B which was handed in now, that you answer in connection with the question whether you acted in the execution of an order or on behalf of or with the approval of an organisation, your answer

"It was of my own free will"

Could you kindly explain that?

MR MADYOLI: Please repeat your question Sir.

ADV DE JAGER: In this document that's now been handed in you didn't mention that you acted on instructions or at the request of Mr Mhlauli, you said you acted out of your own free will.

MR MADYOLI: Yes.

ADV DE JAGER: Now did you act on instructions or did you act out of your own free will?

MR MADYOLI: I was following instructions.

ADV DE JAGER: Right. If I remember correctly, you testified that you were the only one with a weapon that night.

MR MADYOLI: Correct.

ADV DE JAGER: Now, in this affidavit of yours which you handed us this morning, on the bottom of page 2, paragraph 6"

"Mongezi and I were armed"

The very last sentence turning over to the next page.

MR MADYOLI: Yes, Sir, I did so, it must have been a mistake.

ADV DE JAGER: At the trial you must have heard the evidence that there was about six or seven shots fired and cartridges found, is that correct?

MR MADYOLI: Yes, they did say that six shots had been fired, that's what they said at Court.

ADV DE JAGER: And you were arrested in possession of the firearm that you used on that particular night.

MR MADYOLI: Correct.

ADV DE JAGER: And I presume you've heard the evidence then that they found, the ballistic evidence, that they found three shots had been fired at the scene through the use of that very particular weapon.

MR MADYOLI: Yes, that is what they said in Court.

ADV DE JAGER: Do you agree then or don't you agree that three shots were fired through that weapon on the scene?

MR MADYOLI: I disagree, I'm the one who used the weapon. I shot twice, that's what I know.

ADV DE JAGER: And did you hear the evidence, and I presume it was referring to you, that you in fact saved Mrs Cronjé's life by urging your companion not to cut her throat?

MR MADYOLI: Correct.

ADV DE JAGER: Is that correct, did you do so?

MR MADYOLI: Yes.

ADV DE JAGER: And did you say it's not necessary to cut her throat because she's already dead?

MR MADYOLI: Yes.

ADV DE JAGER: So you thought that she'd been killed too by the gunshot or by what?

MR MADYOLI: I knew that she wasn't dead but I was feeling sorry for her. I said to my comrades they mustn't slash her throat because she was already dead. I knew she wasn't dead then but I was just feeling sorry for her.

ADV DE JAGER: And those words that they shouldn't cut her throat was addressed her after she'd been raped.

MR MADYOLI: I heard that in Court but there was no evidence.

ADV DE JAGER: Who raped her?

MR MADYOLI: I wouldn't know.

ADV DE JAGER: Now you've told us that weapons were bought with the money, that's that Klaas and Mongezi brought, is that right.

MR MADYOLI: That is correct.

ADV DE JAGER: Who bought the weapons?

MR MADYOLI: I bought some of the weapons.

ADV DE JAGER: What did you pay for the weapons?

MR MADYOLI: We paid a lot of money because some of the weapons we got from the comrades and some we bought from people who had stolen them.

ADV DE JAGER: You didn't mention before this affidavit that you bought weapons with the money, why not?

MR MADYOLI: It is because the person who helped me with my application form was in a hurry. I just gave a brief statement of what happened.

ADV DE JAGER: I see. And did you write, is that your handwriting appearing on pages 12 to 15 of the record?

MR MADYOLI: Correct.

ADV DE JAGER: Were you in a hurry when you wrote this?

MR MADYOLI: Yes, because when I got the application from the TRC I was called in the prison and they said that they wanted this back right now. I had to do it right there and then and that's what I did because they were in a hurry. They said they had to fax it back to the TRC.

ADV DE JAGER: Right. Now could you have a look at page 15. You relate that you and Andile drove away to the location and

"When we get to the location we burnt the car and waited for them in the same house"

Is that right?

MR MADYOLI: Correct.

ADV DE JAGER

"When they get into the house, they carried some goods and money which I don't know what they did with"

MR MADYOLI: Correct.

ADV DE JAGER: Now here you say you don't know what they did with the money and the goods.

MR MADYOLI: As I have already said, I wrote this in a hurry. The prison officers were in a hurry, they wanted to write this there and then. It's difficult, I filled it in under difficult circumstances. There's a whole lot of things that go on, they provoke you as well. This is why I wrote this in such a way.

ADV DE JAGER: I can understand it if you've written it in a hurry and you said nothing about it at all, leaving it out, but here you said

"They came with this money"

and you don't know what they did with the money.

MR MADYOLI: Mr Chairperson, as I said to you, I was not able to explain or elaborate in the way that I've done now.

ADV DE JAGER: Did anybody hit Mrs Cronjé with a hammer?

MR MADYOLI: Yes.

ADV DE JAGER: Who hit her with a hammer?

MR MADYOLI: Mongezi.

ADV DE JAGER: After the door was kicked open, did you find Mrs Cronjé under the bed?

MR MADYOLI: As I said comrade Mongezi - I got there and comrade Mongezi wanted to cut her throat.

ADV DE JAGER: Did she hide under the bed? That's what I'm asking you.

MR MADYOLI: I wouldn't know because when I got there the comrade was with her. I don't know whether the comrade found her under the bed.

ADV DE JAGER: You further testified that after you bought these weapons you hid them somewhere.

MR MADYOLI: Correct.

ADV DE JAGER: Did you ultimately hand it over to somebody?

MR MADYOLI: After we'd hidden the weapons we came to Port Elizabeth. We had not given the weapons to anybody.

ADV DE JAGER: But wasn't this - didn't the people need the weapons in order to defend themselves?

MR MADYOLI: Let me explain to you. People were not trained to use the weapons, we were trained, we were the ones who were trained. In Lingelishle there was SADF and CID members because they wanted us. We then thought that we should leave for a while and hide and then we would go back. We could not do our job because there were helicopters all over.

ADV DE JAGER: So you never handed these weapons to the SDU?

MR MADYOLI: When I was arrested, comrade Mongezi continued to work with these weapons together with other people.

ADV DE JAGER: Wasn't he also arrested at a stage?

MR MADYOLI: No, not at that stage.

ADV DE JAGER: So you don't know whether these weapons are still there where you buried them of hidden them?

MR MADYOLI: Comrade Beliki Blou who was working together with comrade Mongezi, as Mongezi was arrested, he consequently got arrested and was sentenced to five years imprisonment for the possession of those very weapons.

ADV DE JAGER: Mongezi, was he convicted of possessing those very weapons?

MR MADYOLI: Comrade Beliki, not Mongezi. Mongezi got shot at that time when they found him.

ADV DE JAGER: So it was another person that has been arrested for possession of the weapons?

MR MADYOLI: Correct.

ADV DE JAGER: What was his position in the SDU?

MR MADYOLI: I knew as a comrade when I was still free but when I was in jail I found out that he started working with Mongezi.

ADV DE JAGER: So you in fact never handed these weapons that you bought over to Mr Mhlauli?

MR MADYOLI: No.

ADV DE JAGER: Did you ever tell him that you've bought weapons?

MR MADYOLI: At that time we did not have a chance because it was very tense at the time and we could not meet, we had to meet in dark alleys. At that time we had not had a chance to talk yet.

ADV DE JAGER: Thank you.

CHAIRPERSON: In both your hand-written letter to the Amnesty Committee and in your affidavit handed in today, you say that Mongezi wanted to cut Mrs Cronjé's throat but you stopped him.

MR MADYOLI: Correct.

CHAIRPERSON: You and he were there when he wanted to cut her throat.

MR MADYOLI: It is when I got in the house.

CHAIRPERSON: Yes. And Mrs Cronjé gave evidence to the effect that there were two men in the room when she was dragged out from under the bed by one of the men who then tried to cut her throat but his companion told him to leave her alone as she was already dead, that must have been you she was talking about, wasn't it?

MR MADYOLI: No, because when I got there there was comrade Mongezi and comrade Andile Dakusi, as I've already said.

CHAIRPERSON: But she said that after the person raped her his companion told him not to cut her throat as she was already dead. Now you have told us that you told Mongezi this, not to cut her throat as she was already dead.

MR MADYOLI: Correct.

CHAIRPERSON: There are a few other matters I want to ask you about if you don't mind. Let me check my notes. You've told us that you fired a shot at Mrs Cronjé but you know where it hit her, do you remember telling us that?

MR MADYOLI: I did say where I'd shot her.

CHAIRPERSON: Well that is not what I recollect you saying or what I've made a note of. Where did you hit her?

MR MADYOLI: On the shoulder.

CHAIRPERSON: And she fell down as a result didn't she?

MR MADYOLI: Correct.

CHAIRPERSON: You have told us you took nothing from the farm but two young woman whom you know, Elizabeth Malusi and Agnes Panziso said at the trial that you sold certain stolen goods to them, do you remember that?

MR MADYOLI: Yes.

CHAIRPERSON: Can you suggest any reason why they should have lied about you?

MR MADYOLI: The person that you're talking about was not working with the comrades because the brother, we had shot her brother because the brother worked with the Boers. That is why she went to Court and spoke the way she did.

CHAIRPERSON: But why should she lie about you? You've told us it was another comrade who sold them to her, why didn't she say that? You've told us it was Mongezi who sold to her, didn't you?

MR MADYOLI: I did say it was Mongezi.

CHAIRPERSON: And he's a comrade isn't he?

MR MADYOLI: Correct.

CHAIRPERSON: So, if they had identified him and told the truth, they would have implicated comrades wouldn't they?

MR MADYOLI: Yes, I'd say so.

CHAIRPERSON: And am I right in saying that you merely stole the bakkie so you wouldn't have to walk home because it was quite a long way away?

MR MADYOLI: As I've already said.

CHAIRPERSON: Is that correct?

MR MADYOLI: Correct.

CHAIRPERSON: Thank you.

Any further witnesses?

MR WESSELS: That is the only evidence Mr Chairman that I wish to present in support of the application.

MR MAPOMA: I've no further evidence Sir.

CHAIRPERSON: Are you ready to address us now?

MR WESSELS IN ARGUMENT: Thank you Mr Chairman, yes. If I can then proceed. First of all Mr Chairman, to deal with what was raised at the very outset, the application to make certain amendments, we have Exhibit B before the Committee now and in Exhibit B on page 2 of Exhibit B, paragraph 9(a) I, the offences which were identified at that stage was the

"Acts, omissions or offences related to the murder of a farmer."

Now that I would submit is important and that goes hand in hand with my whole argument that the robbery and the housebreaking with the intent to steal and theft is part and parcel of that act which was associated with the attack on the farm. So in the sense that it is at this very late stage only identified in the amnesty application as such, should not be a bar to him bringing this application for the amnesty.

And further, in support of that argument I would also like to draw the Committee's attention to what is set out on page 4 of the bundle of documents where the justification for these acts are set out. Now towards the middle of the justification it sets out that:

"The youth were instructed to use force where the farmer resisted. I, together with two others were instructed to disarm a certain farmer and remove his weapons. We were however met with resistance and as a result of which force had to be used"

Now to disarm somebody and use force, that in itself would effectively mean that you rob that person, you take something from him against his will and that would be tantamount to a robbery. Now I readily acknowledge that nowhere is there reference to the housebreaking and the stealing of the car.

Now first of all, the housebreaking with the intent to steal and theft indeed only relates to the car and the support for that submission is to be found on page 30 of the bundle of documents where the Trial Judge said the following and that is:

"In this matter, number 1 accused"

It's right at the beginning of the Judgment on Sentence:

"In this matter, number 1 accused was found guilty of robbery with aggravating circumstances and housebreaking with the intention to steal and theft. The latter charge"

that is now relating to the housebreaking with the intent to steal and theft, refers to the breaking into the garage of the Cronjé's with the intent to steal a 1981 Datsun bakkie and stealing it. So that housebreaking with the intent to steal and theft concerns only the bakkie.

CHAIRPERSON: And in the light of your client's evidence which he's just given to me, can you say this was part of the robbery and murder?

MR WESSELS: I'm just about to deal with that Mr Chairman. Should the Committee not see its way clear to grant him amnesty for that particular offence, he was sentenced to 4 years imprisonment which had served already so it is not a major problem. However, it is my submission that the Committee must look at what took place at that farm that night.

The telephone wires were cut by the applicant, he was not charged for m.i.2.p. but had been he been charged with m.i.2.p. for the cutting of the telephone wires in order to achieve the objective, certainly there would have been ample motivation for him to have been granted amnesty for the cutting of the telephone wires. Now on the same basis fleeing from the scene where he had conducted or acted in furtherance of that political motivation or political objective, fleeing from that by stealing the motor vehicle surely must be seen objectively ...[intervention]

CHAIRPERSON: Mr Wessels, he wasn't fleeing from the scene, please. He left his two friends there searching the house.

MR WESSELS: Well that's what the Appellate Division said, that he was fleeing from the scene of the ...[intervention]

CHAIRPERSON: Well he says he left his two friends there, they were going to search through the whole house and he didn't want to walk home so he took the car.

MR WESSELS: That was at least - I can find that reference, it was seen in that light that he was fleeing the scene in the motor vehicle, so in that sense the furthest I can take it Mr Chairman, ...[intervention]

CHAIRPERSON: Isn't it the impression that all four of them left?

MR WESSELS: On various stages yes.

CHAIRPERSON: But that is what the Appellate Division thought, they all went in the bakkie.

MR WESSELS: No, no, I don't think that was - I may be mistaken, but I don't think that was expressly found. If my memory serves me well from the case, Luyanda still went across the water, over the river or through the river back to the location. I don't think there's any reference here that all four left in the same, in the vehicle Mr Chairman.

But as I say, all that I can say about the taking of the motor vehicle, the breaking open of the garage and the stealing of the motor vehicle is that it was used to get away from the scene. Let us just take another hypothetical situation. If a person breaks into the house in order to do something inside that house and there could be justification for what he does, what he did in the house, then that is fair enough but if he then breaks out of the house in order to get away now, must the breaking out of the house now be seen in a different light? Surely it must be seen as hand - it goes hand in hand with the achievement of ...[intervention]

CHAIRPERSON: Stealing a car because you were too lazy to walk home you say is equivalent of breaking out of a house.

MR WESSELS: Well, cutting ...[intervention]

CHAIRPERSON: Really Mr Wessels!

MR WESSELS: Mr Chairman, I can only make the submissions to you. What I want to emphasise is we must not look at the value of what was involved, we must look at what was intended to be achieved at that stage. And his intention to achieve at that stage or what he intended to achieve was to get away from the scene.

CHAIRPERSON: Can I refer you to page 42 of the record, the bottom of the page

"After ransacking the house and unsuccessfully attempting to set fire to it, the gang made their escape in the deceased's bakkie"

MR WESSELS: Yes, well there - thank you Mr Chairman, there we see two factors which now emerge. The gang, whether that was now the complete gang I don't know, I don't know whether that was intended to mean that the whole gang left there but that there they made their escape in the deceased's bakkie, and that is what I had in mind when I said that they ...[intervention]

CHAIRPERSON: The gang, but that's not the facts that we've been told.

MR WESSELS: Mr Chairman, is there any evidence here to gainsay what the applicant maintains, that is was only himself and Andile that left in the bakkie? The other two, Mongezi and Luyanda ...[intervention]

CHAIRPERSON: The Court didn't know that, the Court believed they all left.

MR WESSELS: No.

CHAIRPERSON: Yes.

MR WESSELS: Quite so Mr Chairman ...[intervention]

CHAIRPERSON: So that's why they used the word: "escape". They didn't know that they had left two of their friends behind to continue the search.

MR WESSELS: Yes, Mr Chairman, I may be missing the point here, are we dealing now with the escape or are we dealing with the gang.

CHAIRPERSON: We're dealing with whether it was an escape. You are trying to argue that he stole this to escape, that's not the evidence before us at all.

MR WESSELS: He was leaving the scene, to get away from the scene where a brutal act had been committed and he wanted to get away from that scene. That was his evidence. And in doing so, had he taken a bicycle, something less valuable, would the Committee have felt that, viewed objectively that the taking of the bicycle had nothing to do with what he intended to do there on the farm?

CHAIRPERSON: Yes.

MR WESSELS: With respect, I would think that one must not be blinded by the value of the article involved. It so that it was a valuable article in this case, it was a motor vehicle but it still goes hand in hand and that's the furthest I want to take it. It still goes hand in hand with what happened on the farm and then getting away from the farm. It's not as if he took a bakkie from a neighbouring farm or some other place, it was there at the place where he committed this very brutal act. That is all I have to say about that particular aspect.

The application I submit, is indeed - the Committee should consider the application for amnesty for the murder, the attempted murder, the robbery and for the housebreaking with the intent to steal and theft. Should the Committee feel that the housebreaking should not be incorporated then so be it, but the robbery certainly would form part of the acts which took place there and the application should, that amendment, with respect, ought to be granted then to incorporate the charge of the robbery for which he is presently then serving the 14 years.

The applicant has testified as to what happened there. One aspect must be borne in mind very clearly and that is that here we have an applicant - and this is now when one considers whether he is making full disclosure, here we have an applicant that was charged in the Supreme Court, convicted of murder and attempted murder even though the he denied that he had fired the fatal shots, at the trial. His appeal was successful, those convictions were set aside. There's no chance that he will ever be prosecuted again for the murder and attempted murder. There is a possibility that a civil action may well be taken against him, that's a slight possibility. He's not aware up to now whether civil action will be taken or not. Even if civil action is taken, the likelihood that he will be financially prejudiced is very slim because he's got nothing.

But the fact of the matter is that here's a person that there's no likelihood of him ever being charged again and yet he comes to this Committee frankly, honestly and tells the Committee: "I did the shooting, I fired those shots". There no need, there's no motivation whatsoever to come and say that because there's no benefit that he can really get for that. However, he still comes and admits that he's the one that fired those shots. And this in my respectful submission is indicative therefore that he is endeavouring to make full disclosure of his participation on the night of this fatal attack.

It is true, as was pointed out, and we've seen that in his own statement which he prepared on page 15 he said that he did not know what they did with the money and the goods, that is not a true statement. He tried to explain it away, he's faced with a difficulty here. I don't know whether the answer possibly lies therein if one looks at the statement as it is recorded as it states on page 15:

"When they got into the house they carried some goods and money which I don't know what they did with"

Does he mean that they did with then, because the next sentence says:

"The following day we told so and so"

I accept, readily accept that one would have expected him to have said at the time that: "I did not know what they did with the money and the goods then but later on they used the money to buy firearms". He did not say that but in context, in the way it is set out there, was he intending to convey: he did not know what they did with the money and the goods then when they arrived but that following day they reported etc. Was this an intentional withholding of relevant information or was it not.

ADV DE JAGER: Mr Wessels, on the evidence before us, given today, would he be guilty of robbing clothing and money?

MR WESSELS: He'll be guilty of robbing - bearing in mind now that this was a common purpose, the Court found that when they went to that house the intention was to search for firearms. That was his evidence and it was premeditated in that sense, to go and rob the occupants of their firearms so there's a clear intention to go and rob. And if in this ...[intervention]

ADV DE JAGER: To rob a particular article?

MR WESSELS: The intention was to go and search for firearms, to rob them, to disarm them, that is so. Now, if it so happens that part of that gang went further than the ambit of that common purpose it would still make him guilty of that.

ADV DE JAGER: But he left the scene already, he's not with them anymore.

MR WESSELS: No, but the leaving of the scene cannot be seen as an act of dissociation, certainly not. And it was not viewed in that nature by the Trial Court and not by the Appeal Court.

ADV DE JAGER: No, but the Trial Court found that there was a common purpose.

INTERPRETER: The speaker's mike is not on.

ADV DE JAGER: Ja, I don't know whether our argument mikes should be on, if so fine.

The Trial Court or the Appellate Division didn't find any common purpose, that is why he's been acquitted of murder.

MR WESSELS: No, no, no, the common purpose, only in respect of the murder and the attempted murder but not in respect of the robbery. All the accused were convicted on the basis of common purpose for the robbery and for the housebreaking.

ADV DE JAGER: Yes, and the facts before the Appellate Division for instance, they went there together, they left together, the gang left together, so isn't there quite a difference?

MR WESSELS: No, with respect, the common purpose as far as the killing was concerned, the Appellate Division dealt with that in detail and, page 62 of the bundle of documents they say

"Without proof that accused number three fired the shots, his conviction of the murder and the attempted murder charges cannot stand in view of the concession by counsel for the State that accused number three's liability for these offences on the basis of common purpose has not been established"

And that would obviously relate to the fact that he did not foresee that the person that fired the shots was armed because that was his evidence in the Trial Court, that he was not armed, he did not foresee that the other person was armed.

So it purely on the basis, on the facts that there was not common purpose as far as the murder and the attempted murder is concerned, but the common purpose for the robbery and the stealing of the motor car was certainly there. So in that sense the crime committed, although the initial intention was only to rob the occupants of firearms, this went wider and it eventually included money and clothing. To split in now, to consider giving him amnesty for the intention of stealing firearms and not for the intention to steal clothing would be splitting hairs.

He was convicted of robbery with aggravating circumstances being the use of a firearm in the process of the robbery, not the killing but the use of a firearm and in view of his previous convictions it resulted in him receiving a sentence for 14 years for that charge. So if the Committee is satisfied that the robbery was in fact part and parcel of this, that it was politically motivated then he ought to get amnesty for the robbery as it stands.

ADV DE JAGER: ...[inaudible] that the stealing or the robbery of clothing, I can understand that the robbery of firearms in those circumstances was politically motivated but stealing underwear and shirts, it's difficult to see, and perhaps you could address me on that.

MR WESSELS: I take your point Mr de Jager. Now with the wisdom of hindsight there is no answer, ready an answer for that but the effect of the amnesty will be that he will be released on the charge that he was convicted of.

Now let's restrict ourselves to the robbery, the Amnesty Committee will not be able to split that conviction into parts and parcel or small pieces. If he's granted amnesty for the robbery then that's that and clearly the intention there was to go and rob. In the end they were not successful in getting firearms from the occupants but the intention still was robbery and he used to firearm to rob them, force was used, and it would certainly be tantamount to attempted robbery undoubtedly but that was not what he was convicted of. So with his conviction as it stands, I would respectfully submit that amnesty should be granted in respect of that offence as it stands without going into it any further.

On the evidence as it stands, and there appears to be a question mark over the correctness thereof, that is that in the end the money or part of what was robbed, in particular the money, was used to purchase firearms. In that sense then, to achieve the political objective. So even viewed from that side it would still bring it within the ambit of the requirements of the Act.

One must also take cognisance of what is contained in the document which is part of the bundle of documents on page 11. It is true that these gentlemen have not testified under oath but what is contained in that document clearly is in support of the application. If one could just read through it, in particular the third paragraph:

"The motivation is that he responded to a call by the then banned ANC to the effect that the youth should carry the struggle to the farmers by confiscating their weapons in order to engage the apartheid security forces. Although they exceeded the bounds of the call"

and I take it this refers to the killing, it was never the intention of the ANC to call for the killing of farmers, it was merely to take the struggle to the farmers, that:

"Although they exceeded the bounds of the call, we strongly feel it was because of their political immaturity that they adopted extreme measures. Further, the militant mood of the times added to their actions but it does not attract from the fact that their actions were politically motivated"

Now one must, when you read this on the one hand one must also bear in mind that the applicant was, although he describes himself as a Marshall, he was really a foot soldier acting on instructions and in the process doing more than was really expected of him.

At the end of the day the decision of this Committee will have to take is whether those actions - for the moments let's leave the housebreaking aside but, whether those actions, the murder, the attempted murder and the robbery fell within the ambit of the Act and I respectfully submit that there can be no doubt that it certainly did fall within the ambit of the Act. It was therefor one purpose only, it was certainly, and that was to achieve or to obtain weapons in furtherance of the political objections at the time. It was certainly not for personal gain as far as the applicant is concerned and it was certainly not because ill or some personal satisfaction which he wanted to gain from all of this.

So, viewed objectively, I submit that the application ought to succeed, certainly in respect of those three counts and I respectfully ask the Committee to even give consideration to the housebreaking and the theft of the motor vehicle as well, but in the event of that part not being successful then his release would still be eminent because he's served that sentence.

ADV DE JAGER: ...[inaudible] robbery is concerned, he was never convicted or charged with the robbery of firearms.

MR WESSELS: Well we don't have the charge sheet, the reading of the charge sheet here. I think they went to that ...[intervention]

ADV DE JAGER: But he couldn't have been convicted because there was no evidence that he robbed any weapons.

MR WESSELS: Yes, no, that is quite correct, no firearms were taken from the farm so that could not have been part of the charge sheet but they intended to go and rob of the contents of the house or the property of the Cronjé's which would include firearms. That may well be so because I think that was the whole charge or the nature of the charge framed at them is that they intended to use force and violence to rob the Cronjé's of their property excluding the bakkie. The bakkie was dealt as a separate charge altogether.

Mr Chairman, it there is nothing else that I could possibly deal with, if there's any other uncertainty I would attempt to address that but in my submission on the evidence as it stands in the absence of anything to gainsay that, I submit that the application ought to be successful. Thank you Mr Chairman.

MR MAPOMA IN ARGUMENT: Thank you Sir. Mr Chairman and Members of the Honourable Committee, I will not argue Sir on murder, attempted murder and robbery. I with respect Sir, leave it to the able hands of the Committee, but as for the housebreaking and theft Sir, it is my submission that these particular acts were not acts associated with the intended political objective. I'm saying this Sir, because the intention of going to the farm was to disarm the farmers and take the weapons. The applicant in his own words, when he was asked the question: "What the purpose was that you broke into the garage"?, the purpose was not to get any weapons or to search for any weapons in the garage, the purpose was to search for petrol or oil in order to burn the house. That is not what was intended at all, it was something entirely distinct from the intended purpose. The housebreaking itself therefore had nothing to do with the intention of getting arms.

The taking of the motor vehicle itself, the theft of the motor vehicle itself was done by the applicant himself and for himself only, leaving other members of the mission alone to see for themselves what to do in the farm. So it cannot be argued Sir, that the motor vehicle was taken in order to escape the scene by those who were involved in the mission as such but it was an act which was done by the applicant as an individual, for himself personally. And therefore Sir, with respect, I argue that the theft and housebreaking acts are not acts which fall into the ambit of the Act and therefore say it is my submission that the applicant has not satisfied the requirement of the Act insofar as those acts are concerned. Thank you Sir.

CHAIRPERSON: Thank you. We will take time.

Have we another matter?

MR MAPOMA: Yes, Sir, we do. Unfortunately Mr Wessels is also involved in that matter, the one of Kundulu and Danster. I'm not sure Sir, if we can start with it today, looking at the time.

MR WESSELS: May I possibly just mention Mr Chairman, in preparation it has transpired that it's also a situation where affidavits have been filed at a very late stage. I have faxed copies and it appears that we don't have all the affidavits that have yet been provided to the Committee Members. I must apologise that we have this situation but if we have a little bit of time we will get everything in order. It ought not to be a very long matter.

There was the other aspect which concerned us and that was the notification of the family and there was uncertainty as to whether this application was going to be heard at all because of that uncertainty. I don't know whether that aspect has been resolved as yet.

CHAIRPERSON: That is the one I think where every attempt has been made to enquire as to whether there is a family. There is no information available at the moment to indicate that there is in fact a family or any victims in that sense of the word. It seems to me, subject to any argument that might be advanced, that it would be being a little over cautious not to hear a matter in those circumstances.

What I had in mind, and I think the other Members of the Committee agree with me, is that we could hear the evidence and then continue enquiring as to whether there is a family and if there is, make a copy available to them and give them the opportunity then to take what action they may wish to. It doesn't seem to me to be the sort of case a family would want to participate directly in the hearing. There are no allegations made that they wish to answer as there were earlier this week or anything of that nature.

This was a straight attack on them and it seems to me that we could continue without, it's not a question where there has been no attempt made and we can continue to telephone the landlord and see whether he has any information. I have no doubt if there was a family he would have known because they would have probably all attended the funeral.

MR WESSELS: Thank you Mr Chairman.

CHAIRPERSON: Would you like us to stand over?

HEARING ADJOURNS