CHAIRPERSON: Today we are dealing with the application of Mpatiswa Godrateus Malunga. The Committee remains the same, Judges Wilson, Miller and Motata. I would ask the legal representatives to place themselves on record.
MR HAUPTFLEISCH: I am Leon Hauptfleisch representing the applicant in this matter.
MR VAN BREDA: My name is Henry van Breda, I'm representing Mr Radue in this matter.
MR MAPOPO: I am Zindle Mapopo, representing the victim Mr Jordan in this matter.
MS THABETHE: Thank you Mr Chair, I'm Thabila Thabethe, the Evidence Leader for the TRC.
MR HAUPTFLEISCH: Thank you Mr Chairperson. If everything is ready may we start the application?
JUDGE MOTATA: In what language is the applicant going to testify?
MR HAUPTFLEISCH: Thank you Mr Chairperson, he would prefer his evidence in Xhosa.
JUDGE MOTATA: We shall have to swear him in first.
MPATISWA GODRADEUS MALUNGA: (sworn states)
EXAMINATION BY MR HAUPTFLEISCH: Thank you Chairperson.
The applicant, if I may address questions through him to you, is that in order?
Mr Malunga, you filed an application for amnesty in terms of Section 18 of the National Unity and Reconciliation Act of 1995, is that correct?
MR MALUNGA: Yes that is correct.
MR HAUPTFLEISCH: And this application was handed to the Commission and you confirm that it is pages 1, 2 and 3 of the record and that is before the Commission at the moment?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: Do you still confirm that the information contained in this is still true and correct and that it is the same as the evidence you would give in a normal court?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: Chairperson, may I accept that this document may then be excepted as the original application which is before you?
CHAIRPERSON: Certainly.
MR HAUPTFLEISCH: Then Mr Malunga, there is also an affidavit which you made recently during March, I think it was the 3rd March which was an affidavit you made after you received notice of this hearing and also after having seen the statement made or the evidence of the victim in this case, Mr Jordan?
CHAIRPERSON: Well the document I have before me is headed "Affidavit" but it has not been attested to. I don't know if your copy has?
MR HAUPTFLEISCH: That is indeed so, Chairperson, may I refer to it as a statement then rather?
CHAIRPERSON: Well unless you want a very brief adjournment and he can attest to it here today?
JUDGE MILLER: Yes well perhaps he can now while under oath confirm the contents of it as being correct?
MR HAUPTFLEISCH: Thank you Chairperson.
Mr Malunga am I correct in saying that you have read the affidavit or the document that purports to be an affidavit which you signed on the 3rd March at East London?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: And I have a copy in front of me which I'm showing you at the moment, is that your signature?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: While you are under oath are you prepared to state that the information contained in this statement or affidavit that it is true and correct?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: That everything in here is within your own personal knowledge?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: Would that suffice then Chairperson?
And would you request that this affidavit also forms part of the proceedings today?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: Mr Malunga, you have also had the opportunity of reading the evidence of the submissions made by Mr Jordan when he originally appeared before the Commission in 1996?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: And you have also noticed that your name has been mentioned specifically on page 12 of the record where it is stated that
"Sergeant Malunga said 'well, they took something from the button and he said you can check ...'"
...(intervention)
MR HAUPTFLEISCH: Thank you. I'll just repeat. There is a section which refers specifically to you that you in fact assaulted Mr Jordan during interrogation, is that correct?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: At the time when this happened were you a member of the South African Police Force?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: In what capacity, what was your rank that you were employed?
MR MALUNGA: I was a Sergeant in the detective department, investigative department.
MR HAUPTFLEISCH: Okay, is that generally referred to as the CID?
MR MALUNGA: Yes.
MR HAUPTFLEISCH: Who was your superior, the head of your unit at the time?
MR MALUNGA: Warrant Officer Naude.
MR HAUPTFLEISCH: Am I correct in saying this was during 1985?
MR MALUNGA: That is correct.
JUDGE MILLER: Sorry, Mr Malunga, where were you stationed at that time?
MR MALUNGA: I was stationed in East London.
JUDGE MILLER: In what particular police station?
MR MALUNGA: It is called Fleet Street but it is East London Police Station.
JUDGE MILLER: Thank you.
MR HAUPTFLEISCH: Now Warrant Officer Naude was the head of your unit. Who else was in this unit with you when you investigated these cases?
MR MALUNGA: It was Warrant Officer Ivan Hall.
MR HAUPTFLEISCH: Anybody else?
MR MALUNGA: Sergeant James Hartley.
MR HAUPTFLEISCH: When dockets were received by your unit, who dished them out to the people in the unit for investigation?
MR MALUNGA: Warrant Officer Naude.
MR HAUPTFLEISCH: Now do you recall the day that Mr Jordan, the victim, was arrested and that you received a docket to investigate?
MR MALUNGA: Yes that is correct.
MR HAUPTFLEISCH: Were you present when he was arrested?
MR MALUNGA: No, I only got the docket later.
MR HAUPTFLEISCH: Did you immediately commence your investigations into the case?
MR MALUNGA: After receiving the docket I started investigating because when I arrived I received that docket and in the evening I started with my investigation.
CHAIRPERSON: When was he arrested?
MR MALUNGA: According to the docket he was arrested in Duncan Village in Douglas Smith Highway.
CHAIRPERSON: And where was he detained?
MR MALUNGA: In the Duncan Village Police Station.
MR HAUPTFLEISCH: And you then went to investigate by - or what was the first step you would take in your investigation?
MR MALUNGA: My first step was to go to visit him in the cell.
MR HAUPTFLEISCH: Okay. Was Mr Jordan known to you and other members of the police?
MR MALUNGA: Yes. I was going to meet him face to face for the first time on that particular day.
MR HAUPTFLEISCH: What was the reason why Mr Jordan was well known to the members of the police?
MR MALUNGA: It is because he was a prominent member in the ANC that was banned at the time.
MR HAUPTFLEISCH: When you arrived at the Duncan Village Police Station could you tell us what the aim was of your visit to Mr Jordan?
MR MALUNGA: The intention was to enquire from him as to what had happened, what led to his arrest and according to the docket it was alleged that he was arrested for the matching property, things like cars. All the company cars that were delivering goods would be pelted with stones and be burned down.
MR HAUPTFLEISCH: Would this then generally refer to something like public violence or malicious injury to property?
MR MALUNGA: That is correct, at the time that used to be referred to as public violence.
MR HAUPTFLEISCH: And were these public violence cases generally related to political activity within that area?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: When you investigated cases where people with political connections were detained, did you always limit yourself to questioning regarding criminal activity or did you also go into the question of the political activity?
MR MALUNGA: We would even question them about political activities.
MR HAUPTFLEISCH: Would you, however, continue with the case once you've established that there were political connections within that specific case?
MR MALUNGA: At the time I wouldn't continue because after that they would be referred to the Security Branch.
MR HAUPTFLEISCH: Were you in any way attached to the Security Branch?
MR MALUNGA: No, not at all.
MR HAUPTFLEISCH: Now getting back to the day when you went to see Mr Jordan, were there any other members of the South African Police Force who went with you?
MR MALUNGA: Yes there were two other SAP members if my memory serves me well.
MR HAUPTFLEISCH: Okay and those two, were they Warrant Officer Hall and Sergeant Hartley?
MR MALUNGA: That is correct.
MR HAUPTFLEISCH: Would you have remembered if anybody else was present?
MR MALUNGA: I think I would remember but I don't remember the other person except the two that I have mentioned.
MR HAUPTFLEISCH: Now what happened when you went to question Mr Jordan?
MR MALUNGA: We took him out of the cell to a separate room in one of the offices that were in the Duncan Village Police Station. When we arrived there we made him to lie on a chair and we tied his hands at his back. There was a bench there.
JUDGE MILLER: Sorry, why did you do that? I mean you go there to see a suspect who has been arrested, you take him out the cell, you take him to an office and immediately tie him to a chair. Didn't you speak to him beforehand?
MR MALUNGA: We did speak to him before but his responses as far as we were concerned were not satisfactory.
MR HAUPTFLEISCH: Thank you. Would you continue?
MR MALUNGA: At the time, as he was tied to a chair, Warrant Officer Hall sat on his back suppressing him down, trying to suffocate him with something like a ...(indistinct) of a car. After sometime - I had a stick that I used to hit him underneath his feet and electric shocks were administered, from the sides of his trousers to his buttocks up to the front of his lower abdomen up to his genitals. The kind of electric shock that was administered was a telephone handle set, those that were twisted, the old telephone sets that were twisted. The main questions he was asked by Warrant Officer Hall, he was asked by ...(intervention)
CHAIRPERSON: Sorry, before you go on to that, where did you get this telephone machine from used for shocking him?
MR MALUNGA: I do not know where it was found because it came with Warrant Officer Hall, he took it from the cupboard he was using, Warrant Officer Hall, that is.
CHAIRPERSON: From the cupboard in the office of the Duncan ...(intervention)
JUDGE MILLER: The car, he said from the car.
CHAIRPERSON: From the car or from the office you were using?
MR MALUNGA: He took it from his car.
CHAIRPERSON: His car? So he brought it with him?
MR MALUNGA: Yes, he brought it to the office where we were interrogating the gentleman.
CHAIRPERSON: So you brought a machine with you to torture him?
MR MALUNGA: I can say so, that is correct.
MR HAUPTFLEISCH: Right Mr Malunga, did you know that they were bringing this torturing machine as it has been referred to during the interrogation?
MR MALUNGA: No, I was not aware of the fact that they would bring that telephone, I just saw it when he came with it.
MR HAUPTFLEISCH: Right, would you continue?
MR MALUNGA: As this was taking place, Mr Jordan we could see that he was in great pain.
MR HAUPTFLEISCH: Continue?
MR MALUNGA: I continued hitting him with a stick under his feet.
JUDGE MILLER: I take it you had taken his shoes off?
MR MALUNGA: Yes that is true.
CHAIRPERSON: Was he stripped?
MR MALUNGA: I cannot remember if his clothes were taken off but I think yes, the clothes were taken off.
MR HAUPTFLEISCH: Right, continue please?
MR MALUNGA: After finishing with the interrogation we took him back to the cell. The following day he was about to go to court.
JUDGE MOTATA: Was it after the torture or the interrogation or was it happening simultaneously, torturing him and interrogating him at the same time?
MR MALUNGA: He was tortured and interrogated at the same time.
MR HAUPTFLEISCH: Now were you satisfied with the answers that were given by Mr Jordan at the time while you were interrogating and torturing him?
MR MALUNGA: No, we were not satisfied.
MR HAUPTFLEISCH: Did you ask him about his political activities?
MR MALUNGA: Yes we did.
MR HAUPTFLEISCH: Was your questioning or line of questioning focused upon his political activity?
MR MALUNGA: Even with the other incidents that had taken place at the time, he was questioned about those because many things were happening. People's property was damaged at the time and people who were assaulted and injured.
MR HAUPTFLEISCH: Okay, as members of the South African Police Force at that time, the political activity was obviously one of the focus points for your investigations?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: Your instructions at the time, who gave them to you?
MR MALUNGA: Warrant Officer Hall.
MR HAUPTFLEISCH: Was he in charge of the interrogation?
MR MALUNGA: Yes that is correct.
MR HAUPTFLEISCH: That is the case even though you had been handed the docket for investigation?
MR MALUNGA: That is correct because we were together.
MR HAUPTFLEISCH: Was it standard at that time that you would go to these interrogations as almost a team?
MR MALUNGA: Yes, it was a normal thing at the time.
MR HAUPTFLEISCH: What happened to this docket that you had for investigation after Mr Jordan went to court?
MR MALUNGA: After that all the dockets that had something to do with public violence were transferred to the Security Branch and I was taken back to the housebreaking unit, that is the unit that I used to work for before.
MR HAUPTFLEISCH: Do you know who took over that docket, that investigation of that case, from you after you handed over the docket?
MR MALUNGA: I am the first person to work with that docket because all the new cases would be given to the people who would investigate them.
MR HAUPTFLEISCH: And once it left your hands to go to security, do you know which member of the Security Branch took over?
MR MALUNGA: No, I do not know.
MR HAUPTFLEISCH: While you were interrogating Mr Jordan, were there any members of the Security Branch present at Duncan Village Police Station or in that room where you were interrogating him?
MR MALUNGA: There was no one at the time, it was only the three of us. Myself and Sergeant Hartley. Not unless they arrived at some time later.
MR HAUPTFLEISCH: What time did you leave the police station at Duncan Village that night?
MR MALUNGA: It was very late, towards 12 midnight.
MR HAUPTFLEISCH: Did you ever go to visit or interrogate Mr Jordan after that evening?
MR MALUNGA: No, I never visited him after that, I never met with him.
MR HAUPTFLEISCH: Would you have partaken in this assault during the interrogation had it not been for Mr Jordan's political activities?
MR MALUNGA: Please repeat your question, Sir?
MR HAUPTFLEISCH: If I can just rephrase it maybe? Would you have taken part in the assault on Mr Jordan while this interrogation was taken place if it hadn't been for his involvement in political activity. If I can go further, would you have done that if you were purely investigating a case of housebreaking for example?
MR MALUNGA: I took part because it involved political activities.
MR HAUPTFLEISCH: So if it involved a straightforward criminal investigation like housebreaking or rape for example, you wouldn't have assaulted such a witness or a suspect?
MR MALUNGA: That is correct.
CHAIRPERSON: If your senior officer had told you to take part, would you have refused?
MR MALUNGA: I couldn't refuse.
MR HAUPTFLEISCH: Now why did you apply for amnesty before this commission?
MR MALUNGA: It's because of realising that I'd violated his rights therefore I am applying amnesty for that act.
MR HAUPTFLEISCH: Do you regret that you took part on that assault on Mr Jordan while interrogating him on this case?
MR MALUNGA: Yes I deeply regret that.
MR HAUPTFLEISCH: Have you since become acquainted with Mr Jordan?
MR MALUNGA: I met with him after that many times. Even now we do meet.
MR HAUPTFLEISCH: Would you call your relationship that of friends?
MR MALUNGA: We have a sound relationship.
MR HAUPTFLEISCH: Do you visit each other at home?
MR MALUNGA: Yes we do and he even visits me at my work place and I do the same with him, I go to his home.
JUDGE MILLER: Are you still with the police Mr Malunga?
MR MALUNGA: That is correct, Sir.
MR HAUPTFLEISCH: Where are you presently stationed?
MR MALUNGA: In Ndantsane in the investigative department.
MR HAUPTFLEISCH: At any time that you were dealing with Mr Jordan while investigating this case against him, was there anything personal that you tried to gain from the case or from your investigations?
MR MALUNGA: No, there was nothing personal gain and I had nothing personal against him at the time.
MR HAUPTFLEISCH: Is there anything else that you can recall about your involvement with Mr Jordan during that 1985 period that you have not perhaps told this commission yet?
MR MALUNGA: No, there's nothing else that I can think of.
MR HAUPTFLEISCH: Was this the only case you ever investigated against Mr Jordan?
MR MALUNGA: Yes this was the only case, I never had anything to do with him thereafter.
MR HAUPTFLEISCH: Do you know of any other policemen or members of the public who had anything to do with Mr Jordan or any involvement with cases where he was involved in?
MR MALUNGA: No, I cannot think of anything.
MR HAUPTFLEISCH: Had you spoken to Mr Jordan specifically about your application for amnesty?
MR MALUNGA: Yes, we had met more than once and we had some discussions or a chat rather.
MR HAUPTFLEISCH: What is his attitude towards your application.
MR MALUNGA: His attitude as we chatted, he bears no grudge towards me.
MR HAUPTFLEISCH: And towards your application?
MR MALUNGA: He doesn't seem to have a problem with my application because he even mentioned that to me because he says it is clear to him that I regret what happened.
MR HAUPTFLEISCH: Is there anything else you want to tell this Commission today?
MR MALUNGA: There's nothing except for the fact that I am asking for forgiveness after realising my guilt and what I did to him I am deeply sorry because all I did is obvious that it is against the law, it was not a good thing for one to do. I am asking for forgiveness.
MR HAUPTFLEISCH: Thank you Chairperson.
NO FURTHER QUESTIONS BY MR HAUPTFLEISCH
CHAIRPERSON: Before we go on, I would like to clarify one aspect. As I understand your evidence, you've told us that Warrant Officer Hall brought this telephone machine with him?
MR MALUNGA: That is correct.
CHAIRPERSON: And after he had been tied down you hit him under the feet with a stick?
MR MALUNGA: That is correct.
CHAIRPERSON: And electric shocks were administered to his legs, abdomen, his testicles?
MR MALUNGA: That is correct.
CHAIRPERSON: You could see he was in great pain and you continued hitting him under his feet?
MR MALUNGA: That is correct, Sir, I did that.
CHAIRPERSON: Who administered the shocks?
MR MALUNGA: If my memory serves me correctly, I think it was Warrant Officer Hall because Sergeant Hartley was also assisting him when he was struggling and then he tried to press him down.
CHAIRPERSON: So it's not quite correct what you say in the so called affidavit which you confirmed, that you cannot recall which member of the South African Police assaulted him and you were personally involved and that you continued to assault him while he was being shocked? Is that so?
MR MALUNGA: That is correct, I continued hitting him.
JUDGE MILLER: Sorry, if I may just ask a question before legal representatives question Mr Malunga?
Mr Malunga, I notice from your application as well as the statement that you have confirmed as being correct, that appear on page 1 through to 3(d), that you make no mention of Sergeant Hartley?
CHAIRPERSON: He says he was there?
JUDGE MILLER: Well not on the documents. Yes, sorry, you just make mention the one, except at the one place on page 3(b). You make no mention of him having done anything. What did Sergeant Hartley do during this interrogation?
MR MALUNGA: I cannot remember whether he was also assaulting but one thing I'm sure of is when he was busy struggling, trying to get up while he was tied to a chair, he assisted in trying to press him down to stop him from trying to get up.
JUDGE MILLER: And while the interrogation was in process - sorry before I ask the question, approximately how long did this whole interrogation last? You said you left the station at plus minus midnight, how long did the actual interrogation last?
MR MALUNGA: I think it took something like half an hour. The reason for me to leave at that time, we were working in the whole area. I think we were coming from the rural areas in Mooiplaas as we were busy dealing with some cases. That is why we arrived later, late that night.
JUDGE MILLER: And while the interrogation and torture was in process, did any other policeman from Duncan Village Police Station enter the office where that was taking place?
MR MALUNGA: I cannot remember anyone who came except for the fact that the one that opened the cell for us, the policeman that was in the charge office at the time.
JUDGE MILLER: And when the torture was in process, was Mr Jordan silent or was he screaming, making a noise?
MR MALUNGA: He was screaming because he was in great pain.
JUDGE MILLER: Were they loud screams?
MR MALUNGA: Yes, loud screams.
JUDGE MILLER: Would you have expected other people in the police station to have heard such screams?
MR MALUNGA: Yes, it was not far from the charge office though the offices that we were using there was no one there because they were just administration offices but it was not far from the cells. The cells were attached to the building the one that we were using.
JUDGE MILLER: So are you saying that at the time the people on duty in the police station were the charge office people, the Station Commander wasn't there?
MR MALUNGA: No, he was not there at the time, he had knocked off.
JUDGE MILLER: Yes thank you.
CHAIRPERSON: Sorry, before you - can I just add something? The Station Commander as I understand it of that police station was Captain Dawid Johannes de Villiers?
MR MALUNGA: That is correct, Sir.
JUDGE MOTATA: When you finished assaulting Mr Jordan did you see visible injuries on Mr Jordan?
MR MALUNGA: I cannot remember seeing anything visible.
JUDGE MOTATA: Could he walk from that room back to the cells on his own?
MR MALUNGA: He was struggling, the movement was rather shambolic.
JUDGE MOTATA: Thank you.
CHAIRPERSON: Did he go to court the next day?
MR MALUNGA: Yes he went to court the next day.
CHAIRPERSON: Any questions?
CROSS-EXAMINATION BY MR VAN BREDA: Just one or two questions, Mr Chairperson.
How long was Mr Jordan detained before he was taken to court?
MR MALUNGA: I cannot remember but I think it was just within 48 hours, plus minus 48 hours.
MR VAN BREDA: At the time when you took him to the separate office or the said interrogation did you see any visible injuries on him?
MR MALUNGA: No, I did not notice any of those.
MR VAN BREDA: Did you attend court the following day together with Mr Jordan?
MR MALUNGA: No, because it was not a normal practise, it's the first appearance one would not be required to go to the court, instead you would wait for the remarks of the prosecutor so that he can follow up on those.
MR VAN BREDA: Is it further correct that Mr Radue who is sitting next to me was also attached to the CID unit at that stage?
MR MALUNGA: That is correct.
MR VAN BREDA: Thank you Mr Chairperson, nothing further.
NO FURTHER QUESTIONS BY MR VAN BREDA
CROSS-EXAMINATION BY MR MAPOPO: Thank you Mr Chairperson.
Mr Malunga, can I refer you to page 3(b) of the bundle, particularly paragraph 8 thereof - or rather page 3(c) Mr Chairperson, paragraph 11 thereof. In that paragraph you are differentiating between members of the South African Police who were involved and those who were present. Would you like to elucidate on that point what you mean?
MR MALUNGA: Please repeat your question, Sir?
MR MAPOPO: Yes, my question Mr Malunga is that you are referring to members of the South African Police who were involved and those who were present. Now I want you to clarify that point.
JUDGE MILLER: What Mr Mapopo wants to know, you seem to be conveying that certain members of the SAP were involved and others were present but not involved.
MR MAPOPO: That is correct, Mr Chairperson.
JUDGE MILLER: If you take a look at paragraph 11 there, Mr Malunga, do you see that? Now Mapopo is asking please could you clarify that?
MR MALUNGA: What I was trying to reveal there is that the people who were present there were the people were there at that particular time, there were no other policemen who were there except myself, Sergeant Hartley and Warrant Officer Hall.
MR MAPOPO: You see, my understanding of the two words, 'involved' means people who are not necessarily present but may be part and parcel of a conspiracy and you have also people who are actually present. That is my understanding. Isn't that what you meant?
JUDGE MILLER: Yes and people who are present who may be involved in people who are present who may just be bystanders.
MR MAPOPO: Maybe not even present, just ...(intervention)
JUDGE MILLER: Just be bystanders and not actually involved?
MR MAPOPO: Yes.
MR VAN BREDA: Mr Chairperson, isn't that just a question of interpretation?
JUDGE MILLER: Yes, but he just wants to ask for clarification, it is a question of the interpreter, he can interpret it in various ways.
MR MAPOPO: How long during that time, Mr Malunga, did it take for a police docket which had been opened at a police station to arrive to the member of the CID for investigation?
MR MALUNGA: Normally when the docket has been opened, for instance at about half past eleven a docket has been opened, if possible the next day that docket would be within 48 hours, the next day the person if possible should - the docket should be given to the person who will be dealing with it and at least within 48 hours something should have been done so as to take the case to court.
MR MAPOPO: At that time was not the emergency regulations in place in Duncan Village?
MR MALUNGA: No, I cannot think of any emergency regulations at the time.
MR MAPOPO: And if I understand you correctly, you were involved in a lot of cases dealing with public violence?
MR MALUNGA: That is correct, Sir.
MR MAPOPO: And that Duncan Village Police Station and Fleet Street are physically far apart from each other?
MR MALUNGA: What was a normal practise at the time, the whole East London cases would be centralised in Fleet Street. The investigators were centralised. I think you know that there is Beacon Bay, Cambridge, Duncan Village, East London. All those cases would be investigated in Fleet Street.
JUDGE MOTATA: But the question is that Fleet Street is far from the other place, that's the question, is it far or not? I thought that was your question?
MR MAPOPO: That is correct Mr Chairperson.
MR MALUNGA: Yes it is about plus minus three kilometres.
MR MAPOPO: Yes, what shift were you working on, on that day?
MR MALUNGA: I was not working shifts, just working normal working hours. But if I would be required to do something I would continue.
MR MAPOPO: Yes and you had been working throughout the day, is that so? You had been all over the place in Mooiplaas?
MR MALUNGA: That is correct.
MR MAPOPO: And you had actually 48 hours in which to make contact with Mr Jordan?
MR MALUNGA: That is correct.
JUDGE MILLER: Sorry Mr Mapopo. You mentioned - was there in fact a state of emergency on at that time or not, I can't recall?
MR MAPOPO: Mr Chairperson I'm not sure but my instructions are ...(intervention)
JUDGE MILLER: That there was a state of emergency?
MR MAPOPO: That is my instruction yes.
JUDGE MILLER: Yes, thank you.
MR HAUPTFLEISCH: Mr Chairperson, I think I have a difference of opinion there. If my memory serves me correct, the state of emergency was only reduced during 1986 and that was towards the middle of the year.
JUDGE MILLER: Yes because I know that during those periods, state of emergencies were not too uncommon, were they? You had them from time to time, you had long ones that extended for long periods, you had short ones but I don't know how much hangs on it, we can always find out from the records.
MR MAPOPO: Yes, actually Mr Chairperson I'm going to stick to the 48 hour period.
And you had 48 hours within which to contact Mr Jordan. Why was it so urgent given that you had been working throughout the day, you had about 48 hours within which to make contact with Mr Jordan and why was it so urgent that you go to him immediately?
MR MALUNGA: We were covering such a big area. After getting that particular case you had to try immediately to deal with the case because you wouldn't know how many would be waiting for you, trying as much as you can to cover 48 hours in each and every case that you'll come across because sometimes it would happen that you get that case and realise that a person has been in detention for a very long time. I think Mr Jordan's case is the same like those.
MR MAPOPO: Yes and as far as I understand your evidence, Mr Hall was the chap who - or the police officer who played a major role in that interrogation, isn't that so?
MR MALUNGA: That is correct, Sir.
MR MAPOPO: Where is Mr Hall now?
MR MALUNGA: He is late, he passed away, died in a car accident.
MR MAPOPO: And may I find out, Mr Malunga, the main reason why you interrogated Mr Jordan?
MR MALUNGA: I don't follow your question Sir?
MR MAPOPO: The primary objective of your interrogation?
MR MALUNGA: The primary objective of this interrogation it's because he was a prominent member of the ANC at the time and the ANC was a banned organisation and it was the very organisation that was regarded as the government's enemy.
JUDGE MILLER: Yes but were you trying to extract some sort of confession to be used in court?
MR MALUNGA: I can say so.
JUDGE MILLER: Did you get a confession which would no doubt be sworn to in court as being freely and voluntarily made?
Did you get one?
MR MALUNGA: No, not on that evening if I remember well.
MR MAPOPO: Yes, you also testified, Mr Malunga, that if this Mr Jordan's case didn't involve a political element, you would not have tortured him for example if it was a housebreaking case, you would not have tortured?
MR MALUNGA: That is correct.
MR MAPOPO: What's the difference, why was it necessary to torture people involved in cases with political elements as opposed to those involved in cases which appear criminal?
MR MALUNGA: What used to happen at the time, there was a general attitude towards that organisation at the time.
MR MAPOPO: What attitude?
MR MALUNGA: It was not a very good one.
MR MAPOPO: Yes, what attitude?
MR MALUNGA: This organisation was fighting with the government and the intention was to injure the police and the public. We thought that we were protecting the government and the community.
MR MAPOPO: Do you know or did you know at that time about Captain van Wyk of the Security Branch?
JUDGE MILLER: Was it Van Dyk or Van Wyk?
MR MAPOPO: Van Wyk.
JUDGE MILLER: Van Wyk.
MR MALUNGA: Yes I knew him, he was working for the Security Branch.
MR MAPOPO: Yes, I mean was there any work relationship between yourself and him?
MR MALUNGA: No, there was no working relationship because we didn't know the duties because they were working in their own office and had separate administration.
MR MAPOPO: Yes and even on the day in question, he never made contact with you or with your unit as far as you know?
MR MALUNGA: No, I never saw him that day.
MR MAPOPO: Now I'm asking this question, Mr Malunga, because my instruction is that Mr Jordan when he was arrested and brought to Duncan Village Police Station, Mr van Wyk, Mr Radue and the late Mr Maluwa arrived and they instructed people who were at the charge office to set Mr Jordan apart from others because they had special treatment for him. They said they had people who were going to give special treatment to him and in that evening, yourself, Mr Hartley, Mr Hall, arrived and they tortured. That is the reason why I ask this question. Do you have any comment on that?
MR MALUNGA: I am not aware of the fact that they had met with him and there were such instructions either. As I have already said that we were working in charge of the whole East London, we would go from time to time to the places where the people were detained and we would continue the investigation.
I can hear your remark, you say that they had given such instructions and after that we came and we tortured him.
JUDGE MILLER: Sorry Mr Mapopo, if I could just intervene?
You say that you came from Mooiplaas to Duncan Village, is that correct?
MR MALUNGA: Yes.
JUDGE MILLER: And you arrived there late?
MR MALUNGA: That is correct, Sir.
JUDGE MILLER: Now at what time of the day did you get the docket relating to Mr Jordan?
MR MALUNGA: I cannot remember whether I got it in the morning or I found it when I went back to the office because as we were working in East London we had been out for the day but I cannot remember at what time did I get it.
JUDGE MILLER: So when you finished at Mooiplaas, you went back to Fleet Street or did you go directly to Duncan Village?
MR MALUNGA: I cannot remember but I think that we went via the office. Mr Mtenge would go there and check for the messages from our families.
JUDGE MILLER: So who made the decision to go and see Mr Jordan, was it yourself or was it Hall?
MR MALUNGA: It was Mr Hall because we were together and I realised that he had vested interests in this case. As I say he came with this telephone equipment that was going to be used to torture Mr Jordan.
JUDGE MILLER: Yes and was that the first time you'd seen that telephone equipment or had you seen it before in Hall's possession?
MR MALUNGA: I saw it for the first time that day.
JUDGE MILLER: And so did you infer that when Hall went to Duncan Village Police Station he went there with the intention of most likely using that device? In other words, to go there to extract a voluntary confession?
MR MALUNGA: In my understanding I took it as if he had intentions to make him confess and use this telephone equipment.
JUDGE MILLER: Yes, Mr Mapopo?
MR MAPOPO: Thank you Chairperson.
Did you interrogate any other people on that day, Mr Malunga, other than Mr Jordan?
MR MALUNGA: Yes, there were other people who were detained with him.
MR MAPOPO: No, my question is did you interrogate other people than Mr Jordan?
MR MALUNGA: That is correct, Sir.
JUDGE MILLER: At Duncan Village?
MR MALUNGA: Yes.
MR MAPOPO: Can you please, Mr Malunga, give us an understanding of the content of your interrogation, the political one? You had certain objectives? You wanted to extract certain information. What information did you ask for Mr Jordan which was political?
MR MALUNGA: The details that were expected as we were interrogating him, as I said there were so many incidents that had taken place in Duncan Village. People's cars set alight and some people were injured, assaulted by people.
MR MAPOPO: Is that all or was that all you asked for?
MR MALUNGA: There were people who were injured and deaths and disappearing of people. I remember very well that there was this person that we were searching for. It was alleged that he was taken by a mob. We had intentions to get that information because there was nothing, there were no details at all concerning such cases like the disappearances of people.
MR MAPOPO: And those were cases that fell within the operational jurisdiction of the Security Branch police?
MR MALUNGA: When this whole thing started, at the time there was a team that was established to follow up on such cases and such cases were referred to Security Branch later on.
MR MAPOPO: So there were teams that were set up to follow the incidents and then hand them over to the police. Were you part of that team?
MR MALUNGA: Yes I was part of that team that was responsible for investigating such cases.
MR MAPOPO: Did you ask - I mean you as the team that tortured Mr Jordan that evening, did you ask him about the whereabouts of Mr Steve Tshwete?
MR MALUNGA: No, I do not remember questioning him about Steve Tshwete.
JUDGE MOTATA: The team that was with you, did they ask a question of that nature from Mr Jordan?
MR MALUNGA: If I remember well the person who was asking that question was Mr Hall.
MR MAPOPO: The late one?
MR MALUNGA: Yes that is correct.
MR MAPOPO: And you are referring to a team. I understand that if one works as a team you do not just move from the police station, go into the interrogation, you ask questions haphazardly. You sit down, you plan, you set your objectives, you go there and extract them, is that not so?
MR MALUNGA: No, that is not the case. When I'm talking about a team we had to take care of all those cases that had something to do with public violence. If you get your own case you would take charge of that case but if you can, you can discuss it with somebody else and get advice from that person.
MR MAPOPO: And was Captain van Wyk part of that team?
MR MALUNGA: As I've said before, he was working for the Security Branch.
JUDGE MILLER: Sorry, Mr Mapopo, just on that point that you've raised, we were handed an affidavit. Do you have a copy of it - oh, no wait sorry, this is by De Villiers, not Van Wyk. No.
MR MAPOPO: Thank you Mr Chairperson.
Other than the information that you received from the docket about Mr Jordan, did anybody specifically inform the unit that Mr Jordan was at Duncan Village Police Station under arrest?
MR MALUNGA: Please repeat your question, Sir?
MR MAPOPO: Yes, other than the information that you found from the docket which led you to Duncan Village Police Station, did anybody specifically inform you about the presence of Mr Jordan at Duncan Village Police Station under arrest?
MR MALUNGA: No, I do not remember anyone telling me about that.
JUDGE MILLER: Sorry, and how did it work Mr Malunga? Mr Jordan gets arrested in Duncan Village. Do you know which police arrested him? Was it the Duncan Village Police, Cambridge Security Branch? Let's assume a person gets arrested in Duncan Village for public violence let's say, gets picked up on the streets, arrested in Duncan Village, taken to the Duncan Village Police Station, put in the cells. Now how would it come about that the docket would land up in Fleet Street?
MR MALUNGA: What was to be a normal practise was the fact that each and every docket that would be opened in Duncan Village or any other police station, after registration they would be taken to Fleet Street where they would be handed over to respective people. CID branch was centralised in East London.
JUDGE MILLER: Thank you.
MR MAPOPO: Mr Malunga, if I can refer you perhaps to your testimony, you said earlier on that Mr Jordan was a prominent member of the banned African National Congress at that time and you had information and that is why you interrogated him politically?
MR MALUNGA: That is correct.
MR MAPOPO: Was Mr Jordan ever arrested, charged and convicted of being a member of the banned organisation?
MR MALUNGA: I have no knowledge about that.
MR MAPOPO: Now where did you get the information that Mr Jordan was a member of the banned organisation at that time if you didn't have the knowledge?
MR MALUNGA: It was during the process when he was arrested and I took it as if that was true because he was arrested by the police who were solely responsible for public violence, perpetrators at the time and he was also involved in what they were saying about him.
MR MAPOPO: Is it correct that if it found that Mr Jordan was a member of the ANC at that time and that was the reason why you interrogated him, it might be easier for you to get amnesty?
MR MALUNGA: Please repeat your question, Sir?
MR MAPOPO: Do you agree with me that if it's found by this Honourable Committee that Mr Jordan at that time was a member of the African National Congress which was banned at the time and that's why you decided to interrogate him as you did and rather that would make the approval of your application for amnesty much more easier?
MR MALUNGA: I disagree with you because I am asking for forgiveness for torturing Mr Jordan and I was involved in the torturing.
MR MAPOPO: Yes, in fact Mr Jordan is going to state that he joined ANC. In fact that is my instruction that he joined the ANC in 1990 and this incident took place in 1985. Do you have any comment on that?
MR MALUNGA: No I cannot comment because I am not certain about that information.
MR MAPOPO: Then why did you ...(intervention)
JUDGE MOTATA: If I may interpose Mr Mapopo?
MR MAPOPO: Yes.
JUDGE MOTATA: When you say Mr Jordan was a member of the banned ANC organisation, was it a perception or how did you people come to know that he was a member of the banned ANC? I know that you said he was prominent but I want to know how you knew that he was a member of the ANC? Or was it a general perception amongst the South African Police or how did it come about?
MR MALUNGA: It was a general perception.
JUDGE MOTATA: Thank you, you may proceed.
MR MAPOPO: Yes. I wander Mr Chairperson whether I cannot be given just five minutes to consult with Mr Jordan?
CHAIRPERSON: Very well.
COMMITTEE ADJOURNS
ON RESUMPTION
MPATISWA GODRADEUS MALUNGA: (s.u.o.)
CROSS-EXAMINATION BY MR MAPOPO: (Cont)
...(inaudible) indulgence. I've got a few questions for you, Mr Malunga. At the time when Mr Jordan was arrested is it not correct that there were joint police and army operations in Duncan Village dealing or quelling the popular uprising that was taking place there?
MR MALUNGA: That is correct, but I am not sure during the time of his arrest but there were police who were responsible for public violence who were patrolling in the township and he was also arrested by the same police because those were the police who opened the docket.
JUDGE MILLER: But I think the question was at that time were there joint police and defence force or army operations in Duncan Village?
MR MALUNGA: Yes there were such operations.
MR MAPOPO: Yes and the components of the police would include the say members of the Security Branch and the members of the CID, the members of the plain clothes, all working hand in hand with the army?
MR MALUNGA: That is not correct. From the beginning when we were a team that was established to take charge of these cases of assault and damage to property and thereafter we disbanded, the other members were referred to the Security Branch to carry on with some cases. I was in the group that went back to the old unit and the housebreaking unit.
MR MAPOPO: Yes, before your team was disbanded did it in line with the policy of joint operation work hand in hand with the Security Branch members?
MR MALUNGA: I think it was when the team was still new, they only worked hand in hand at a later stage because some of the members from our team went to work with the Security Branch to carry on with their old cases.
MR MAPOPO: Yes, just to be specific, Mr Malunga, at the time of the arrest of Mr Jordan, was that cooperation with the CID still in place?
MR MALUNGA: No, not at that time.
MR MAPOPO: Yes, may I just, dealing with another point, refer you to page 2 of the bundle, paragraph 9(iv)? There you state there that you arrested and interrogated Mr Thethinene Jordan, can you see that?
JUDGE MILLER: This is just for record purposes, Mr Mapopo, that's paragraph 9(a)(iv) because there's a (c)(iv) as well. 9(a)(iv), right at the top of the page.
MR MAPOPO: Thank you Chairperson.
MR MALUNGA: I can see that part.
MR MAPOPO: May I then refer you again to page 3(b) of the bundle, more specifically paragraph 6 thereof? And in that paragraph you are stating that he had allegedly been arrested at Douglas Smith Highway in Duncan Village, in other words not by you? It had been alleged that he had been arrested. Now I just want to get clarity on this, this seems to be an apparent contradiction. Would you like to clarify that?
MR MALUNGA: Yes I can see the contradiction more especially in my application. It is a mistake that went on unnoticed during the time of making the application. The real story is the fact that he was not arrested by me but arrested by the police from POPS.
MR MAPOPO: Yes and may I also refer to your earlier evidence to the effect that you did not see any visible injuries on Mr Jordan on that particular day after the torture. Do you remember saying that?
CHAIRPERSON: I'm not sure he said he didn't see any injuries after the torture. Wasn't the question "when you saw him did you see any injuries?" It was after the torture?
JUDGE MILLER: Yes, I was under the impression that he didn't see any visible injuries at any stage.
MR MAPOPO: That was my impression Mr Chairperson.
Do you remember saying that Mr Malunga?
MR MALUNGA: Yes I do remember that.
MR MAPOPO: May I again refer you to page 2 of the bundle, more specifically paragraph 9(b) thereof? There you state that the said Thethinene Jordan was injured and he suffered swollen and bruised feet. Now there seems to be an apparent contradiction. Would you like to clarify that?
MR MALUNGA: Yes I can explain. I did mention that he did not seem injured but one could see that he was shambling or rather he was feeling pain on the feet.
MR MAPOPO: I don't quite get you, Mr Malunga? Would you repeat yourself please?
MR MALUNGA: I am saying there were no visible injuries at the time. I just noticed that he was feeling pain on his feet, he couldn't walk properly.
JUDGE MOTATA: Could you say that when you looked at the statement or what you have written, the said Thethinene Jordan was injured as he suffered swollen and bruised feet, wouldn't you refer to that as injuries?
MR MALUNGA: What I understood there, I was actually trying to talk about open wounds.
JUDGE MILLER: So did you in fact see that his feet were swollen?
MR MALUNGA: Yes that is correct.
JUDGE MILLER: And you also saw bruises on the feet?
MR MALUNGA: Yes because it is when the time when he was struggling and it looked like he had bruises because of the chair he was tied to.
MR MAPOPO: My instruction, Mr Malunga, is that when after the interrogation he was severely injured, he couldn't even walk, he lost consciousness. He woke up when he was kicked in the ribs by a certain Mr de Villiers?
MR MALUNGA: No, I do not remember that part because Captain de Villiers was not present that day unless that he is talking about another day when I was not present.
JUDGE MOTATA: I think your question should be at least clearer.
MR MAPOPO: Yes.
JUDGE MOTATA: Where did he lose consciousness and where did he regain consciousness, at least let's have a feeling.
MR MAPOPO: Thank you Chairperson. He is going to state that - or rather my instructions are that, Mr Malunga, during the process of the torture he lost consciousness and when he woke up he was in the cells and you were not present, that is your team, and that the reason why he woke up was because a certain Mr de Villiers had kicked him in the ribs. In other words your story that he walked on his own is not entirely correct?
MR MALUNGA: As far as I can remember we never took him to the cells in an unconscious condition. I am telling the truth. The story is as I'm telling it.
MR MAPOPO: Is it not possible that you are making a mistake, Mr Malunga? You cannot properly remember? Is that not at least possible?
MR MALUNGA: As you say that I cannot remember the facts like that.
MR MAPOPO: Yes, no I'm not trying to put you in a corner, I'm just trying to find out whether it's possible? May I also refer you to your earlier testimony where you made a differentiation between people who were present and those who were involved. Is it not possible that there were other people who had been involved but you could not remember as you state in your affidavit, in your statement rather, is it not possible that there were other people who were involved but you could not remember who were not necessarily present?
MR MALUNGA: I've already said that I cannot remember any people who were present.
MR MAPOPO: Yes but ...(intervention)
JUDGE MILLER: I think what Mr Mapopo is getting at is you've said you can't remember any other people being present. That can in itself, that statement, can be interpreted in two ways, it can mean that no one else was present or else that somebody else may have been present for a time, a short time somebody may have walked in or out but you can't remember. What is the position, are you categorically saying that it was only the three of you who tortured Mr Jordan or are you saying you can't remember whether anybody else may have been involved while you were busy torturing him?
MR MALUNGA: I cannot remember anyone coming in during the torture.
JUDGE MILLER: So therefore is it possible that somebody may have come in but you can't remember? What are you trying to say? That is you've just said the same thing which is ambiguous.
MR MALUNGA: It's possible that someone came in unnoticed. I would like to put it that way.
MR MAPOPO: Yes, my instruction, Mr Malunga, is that Captain van Wyk was involved in the sense that he was the one who dispatched the team that tortured him, namely yourself?
MR MALUNGA: No I do not remember that part.
MR MAPOPO: Touching on another point, Mr Malunga, the last one ...(intervention)
JUDGE MOTATA: Before you leave that point I just want you to clarify this that probably you do it whilst asking questions is that when you say Captain van Wyk dispatched the team that interrogated him, are you implying that they left whilst Mr Jordan was still in the interrogation room or when where they dispatched?
MR MAPOPO: Yes Mr Chairperson, my instruction is that if one looks at the whole incident circumstantially, here is Captain van Wyk ...(intervention)
JUDGE MOTATA: No, I merely want you to clarify it through the ...(indistinct) as I don't want you to testify in any way.
MR MAPOPO: Thank you Chairperson.
Mr Malunga, my instruction is that the fact that Mr van Wyk arrived at Duncan Village Police Station and said he, that is Mr Jordan, should be set aside for special treatment and in that evening a team which arrived and tortured him points to the fact that he was involved in the whole thing, that is Captain van Wyk. Would you like to comment on that?
MR MALUNGA: Perhaps he was involved but I had nothing to do with him and I cannot say he never arrived when I was sent but I had no direct involvement with him, Captain van Wyk that is, because I was never under his unit at this stage.
MR MAPOPO: And coming to the last point, Mr Malunga, may I refer you to paragraph 13(a) of page 3 of the bundle wherein you state that Mr Jordan instituted a civil claim and you have been led to believe that such a claim had been settled out of court? Now how did you come to know about the information that you state there?
MR MALUNGA: After some time there were consultations. We were told that a civil claim was laid by him and we were questioned about our involvement in this interrogation. After that I heard nothing but I heard there was a settlement out of court though I did not ask about the details but it ended up there during the consultations when we were told about this civil claim that was laid against the State by him.
MR MAPOPO: And you say that "we were consulted", who were the "we"?
MR MALUNGA: There were two legal representatives. I was summoned and I was questioned about the incident. Warrant Officer Naude, it was myself and Warrant Officer Naude who were questioned and after that there was nothing, I heard nothing about the case.
MR MAPOPO: Do you perhaps know the names of the lawyers who consulted you?
MR MALUNGA: No I cannot remember them.
MR MAPOPO: Just one last thing. I must tell you my instruction is that - in fact this is what I've just received from my client, that at the time when Captain van Wyk arrived at the Duncan Village Police Station, Mr Radue was present when he said that he must be set aside and that special treatment would be given to him. That is my instruction. I just want to place it on record, I know you were not there. That is all, Mr Chairperson.
NO FURTHER QUESTIONS BY MR MAPOPO
CHAIRPERSON: Any questions?
CROSS-EXAMINATION BY MS THABETHE: Yes Chairperson, thank you. Mr Malunga, did you read Mr Jordan's statement contained in the bundle?
MR MALUNGA: Yes.
MS THABETHE: Were you ever involved in torture of Mr Jordan besides the one that you are talking about?
MR MALUNGA: No, I was never involved.
MS THABETHE: So are you certain that the incident that the incident Mr Jordan is talking about in his statement is the same incident that you're talking about in your application?
MR MALUNGA: Concerning which part in his statement?
MS THABETHE: Page 6, for example ...(intervention)
JUDGE MILLER: What page is that of the bundle, page 6 of the bundle?
MS THABETHE: Maybe let me start here. For example on page 1 of your statement you talk about the date of the incident being March 1985. On page 6 of the bundle Mr Jordan seems to suggest that the date was August, 2nd August 1985, I should assume? Yes, 2nd.
CHAIRPERSON: 2nd September, isn't it?
MS THABETHE: 2nd September but further down Mr Jordan actually speaks of 2nd August. Maybe we need to clarify the issue of dates.
JUDGE MILLER: Yes I think so.
MS THABETHE: Further down, I think it's line 8. What would you say the dates were, are you sure of your dates? Was it March, was it September, was it August?
MR MALUNGA: I am not sure about the dates the way they are written here but I would like to say it was in March.
MS THABETHE: Okay, thank you. Apparently according to the victim he is certain that it was the 2nd September 1985. Do you want to respond to that?
MR MALUNGA: I am not able to respond because I am not sure of the exact date.
MS THABETHE: So would you agree if he says it's the 2nd September?
MR MALUNGA: It is possible that it is this incident we are talking about today.
MS THABETHE: Secondly, on page 12 of the bundle, same incident with Mr Jordan seems to suggest or which Mr Jordan is sure that it occurred on the 2nd September, he mentions your name and the whole incident seems to suggest that it wasn't just you, Sergeant Hall and Hartley but there were other people who were there. What is your response to that? That is the incident on the 2nd September 1985?
MR MALUNGA: If this incident happened on the 2nd September 1985 whereby I was involved together with Sergeant Hartley and Warrant Officer Hall, as I have already mentioned I don't remember that there were other people unless they went in without me noticing them. Maybe they went out again.
MS THABETHE: Now my last question and I'm seeking to get a clarification from you, it's with regard to the evidence that you've given today. I'm under correction and I would be glad if you can correct me, you seem to be suggesting that you tortured Mr Jordan under your normal duty as a CID policeman. Would I be correct to say so?
MR MALUNGA: Yes that is correct.
MS THABETHE: And if, Mr Malunga, that's the case what offence did you commit then? What offence are you applying for because you were acting under your normal duties as a policeman?
JUDGE MILLER: The fact that somebody is acting under orders or as normal duties, whether it's lawful or not is a question of fact. I mean a policeman hasn't got free license to torture people, if he does he is committing a crime, it's assault with grievous bodily harm, attempted murder, depending on the degree of the torture. The fact that he is doing it in the course of his duties is irrelevant as to whether or not he commits a crime or if he does it under order.
MS THABETHE: Thank you Honourable Member of the Committee. Let me rephrase my question.
If you tortured Mr Jordan under your normal duties as a policeman, how would you justify that it was a political act and not an act which was committed by you fulfilling your duties as a policeman?
MR MALUNGA: The reason why I said so is because at that time the organisation was banned and things that I've already explained were happening. People's properties were damaged.
MS THABETHE: I don't know whether I'm clear, the chair will have to assist me here. My question to you, I understand there were properties that were being attacked and everything ...(intervention)
JUDGE MILLER: I think what Ms Thabethe is getting at is that as far as you as a CID policeman was concerned, this suspect, Mr Jordan, had been arrested for damaging property, being involved in public violence whatever. It was an investigative unit matter, matter for the CID. You go there and investigate that CID matter. What Ms Thabethe is asking is then if that is the case, how can you say that you investigated that matter with a political objective as envisaged by the provisions of Section 20 of the Act?
MS THABETHE: Thank you Mr Chair.
MR MALUNGA: It is because this incident was politically motivated and at that time I was investigating cases that were in connection with the politics.
MS THABETHE: I won't push the issue any further, Mr Chairperson, thank you.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Re-examination, if any?
MR HAUPTFLEISCH: I have none, thank you Chairperson.
NO RE-EXAMINATION BY MR HAUPTFLEISCH
CHAIRPERSON: There are some questions I wish to ask with one matter I would like to comment on. My recollection of the statement made by the victim, Mr Jordan, which is before us, is that throughout it he refers to Major de Villiers and when he talks about being kicked he talks about Major de Villiers as being the person who kicked him. I raise this at this stage because we have had an affidavit filed on behalf of a Captain de Villiers denying any participation in which he suggests there may be a mistake and it may be the major. I speak subject to correction when I say that it appears that all the references by Mr Jordan are to Major de Villiers.
The next question I would like to ask is did you know of a Dr Labuschagne or somebody who called himself that?
MR MALUNGA: No, I don't know Dr Labuschagne.
JUDGE MILLER: Did you know anybody by the name of Labuschagne at the Duncan Village Police Station be it a doctor or a policeman?
MR MALUNGA: No.
JUDGE MOTATA: Mr Malunga, I would just take you back a little. You said Mr Jordan was a prominent person who was actively involved in politics. What, because that was the perception emanating from the question I asked you, what was he doing that the spotlight was on him? What was he doing?
MR MALUNGA: I don't have that much knowledge about what he was doing except for the fact that there was a general perception that he was involved and as he was arrested there, it was because the members of the organisation at the time, it was suspected that they were the ones who were disrupting the community.
JUDGE MOTATA: Disrupting the community in what sense?
MR MALUNGA: We had information that there were no people who were supposed to give evidence in certain cases.
JUDGE MOTATA: Now let's come to the day in question, you are not certain which month it was but Mr Jordan maintains, if I understood his counsel well, that it was on the 2nd September 1985, that when you got there the impression I get from your evidence is that he was taken out of the cell and immediately strapped and assaulted. Was it because you wanted some information? Did you speak to him prior to you people strapping him and assaulting him?
MR MALUNGA: Yes we spoke to him because we were asking him questions about whether he had knowledge about the things that happened. He was asked about Mr Tshwete.
JUDGE MOTATA: Is that prior to the torturing?
MR MALUNGA: That is correct, Chairperson.
JUDGE MILLER: You see - I'm sorry, Judge Motata. What do you think he was asked about Mr Tshwete? Why would you or your team have asked him about Mr Tshwete because all you've got here is the document about a person being arrested on public violence, arrested on the street, why did you ask him about Mr Tshwete?
MR MALUNGA: I don't know what was in Mr Hall's mind when he was asking him that question because you wouldn't know what someone else is thinking about, you just hear him asking a question.
JUDGE MILLER: You see the fact that Mr Hall goes there with a torture machine that you don't know about, after a long day driving around Mooiplaas and other areas, goes to Duncan Village with a torture machine and then starts asking questions that one would suspect wouldn't be part of a docket about a person who had been arrested on the street, leads one to believe that somebody must have spoken to Mr Hall before you embarked on that venture? Told him, look, there's an interrogation to be underdone, ask him questions about Mr Tshwete, take the machine?
MR MALUNGA: I would not dispute that, it might be possible.
JUDGE MILLER: Or would you think it would be just coincidence that he had the machine and that he suddenly asked him about Mr Tshwete? What's the CID asking about Mr Tshwete for?
MR MALUNGA: I wouldn't say it was a coincidence, maybe Mr Hall spoke to a certain person before the interrogation, hence he came with that telephone machine and he asked those questions about Mr Tshwete.
JUDGE MOTATA: Now when you and the two other gentlemen, Warrant Officer Hall and Hartley, went to the Duncan Police Station, did you use the same vehicle from Fleet Street?
MR MALUNGA: No, we were not using the same vehicle, we were using two cars because after that, as I was staying in Ndantsane, the township, I used another car to go back home and they used the other one.
JUDGE MOTATA: Let's just go back to the interrogation room, I'll call it that in inverted commas, the room you referred to, let's call it the "interrogation room" because apparently everything obtained there, were you all asking questions or was there one amongst the three of you who was specifically asking Mr Jordan questions?
MR MALUNGA: What happened, we were all asking questions, one would ask a question that comes to mind or let me put it this way, I would ask a question that would come to my mind or I would refer to a particular case that I could recall.
JUDGE MOTATA: And at what interval because now the man is being tortured. Would you probably administer the electric shock, wait, ask him a question or how was the interrogation being conducted?
MR MALUNGA: It was just a mixture.
JUDGE MOTATA: Assisted?
MR MALUNGA: In that one would ask a question and one would continue doing whatever he was doing to him.
JUDGE MOTATA: Then it would not be surprising that you didn't get anywhere because the electric shocks were administered and a question asked and a man screaming. Could we have anything coming out of that? I don't know, you were present, you may probably assist us?
MR MALUNGA: Yes I think it is why we could not get any information or any answers to our questions.
JUDGE MOTATA: Apparently Mr Jordan says that he was arrested with other Black males. Do you know what happened to those?
MR MALUNGA: They were detained even though I cannot remember whether they were charged with the same case that he was charged with.
JUDGE MOTATA: They were not asked questions or statements taken from them, nothing was asked? I mean by your team that is Hartley, yourself and Warrant Officer Naude?
MR MALUNGA: There were questions that we asked from them but they did not know anything, they said they did not know anything.
CHAIRPERSON: Yes, you've told us in your evidence, hadn't you, that there were other people detained with Jordan and you interrogate them at the Duncan Village Police Station? That is so, isn't it?
MR MALUNGA: Yes that is so.
CHAIRPERSON: Now how many of them did you interrogate?
MR MALUNGA: I cannot remember how many there were but I think there were three or five but I cannot remember the exact number.
CHAIRPERSON: And did you interrogate some before you interrogated Jordan?
MR MALUNGA: That is correct.
CHAIRPERSON: Because he says on man his name he cannot mention was taken away for about - he heard him crying for thirty to thirty five minutes. Was it the first one tortured?
MR MALUNGA: It is possible.
CHAIRPERSON: And then the second one, Zola Ntensilana? He was taken off to be questioned and he started screaming too?
Is that also possible?
MR MALUNGA: Yes that is also possible.
CHAIRPERSON: So is it possible all these people were tortured by you?
MR MALUNGA: I was part of the people that were torturing them.
CHAIRPERSON: Yes, the point I'm making is it was not only Mr Jordan who was tortured, the first people you started questioning, you started torturing. You tortured all the people you questioned if they didn't give you information? Isn't that so?
MR MALUNGA: That is so.
CHAIRPERSON: Sorry, one more question. Did you know a police officer, Sergeant Neethling, a name something like that a Duncan Village?
MR MALUNGA: I can remember Sergeant Neethling who was working with the riot unit.
CHAIRPERSON: At Duncan Village?
MR MALUNGA: They were deployed in Duncan Village at the time. He was from the riot unit from East London.
CHAIRPERSON: Thank you. Any further evidence?
MR HAUPTFLEISCH: There's no further evidence for the applicant, Chairperson.
MR VAN BREDA: We do not intend leading any evidence, Chairperson.
CHAIRPERSON: Thank you.
MR MAPOPO: Thank you Mr Chairperson, that is all for the victim, Mr Jordan, we're not going to lead any evidence.
CHAIRPERSON: You're not leading any evidence?
MR MAPOPO: No.
MS THABETHE: I'm not leading any evidence, Mr Chairperson.
WITNESS EXCUSED
CHAIRPERSON: Are you ready to commence your address?
MR HAUPTFLEISCH IN ARGUMENT: Yes, I think I can start now, thank you Mr Chairperson.
Chairperson, I think we should definitely after hearing a lot from Mr Malunga today, confine ourselves to his application and his evidence and that is really what is important. I would submit on his behalf that he has after his evidence today made a full disclosure of what actually transpired on the day. I think we can accept that it was the same day that Mr Jordan referred to, but we can accept his evidence in that regard. He stated quite clearly and although it seemed that it might have been a matter of interpretation about who was present or who wasn't present but the people that he mentioned are the people he remembers being there while he was involved in this whole interrogation of Mr Jordan. I would submit that the disclosure made by him was sufficient for the purpose of the application for amnesty. He did not hide anything or deliberately hide anything. One would expect that there would be some sort of loss of memory or maybe as it was put, a contradiction or two when certain facts were mentioned. This happened a long time ago in 1985. Mr Malunga also investigates many cases. He is presently still involved in a similar type of working environment and one can even then say that one can expect that there might be certain contradictions appearing from his statement and application.
One would turn to another question which might be important in considering his application and that is whether
there was any other motive in the interrogation or with the interrogation other than a political motive. Unfortunately, I was personally still very young at the time and I cannot remember much about what happened but the evidence and even the statement or the evidence of Mr Jordan is clear that there was a lot of political activity at the time. I think we can accept that.
JUDGE MILLER: Yes, I think that's common cause that at that particular period, particularly in that area that there was a lot of political activity.
MR HAUPTFLEISCH: Thank you Sir.
CHAIRPERSON: I think also one can accept that there was political violence at that time. By this I don't mean one sided, I mean generally.
MR HAUPTFLEISCH: I agree fully with you, thank you Mr Chairperson. The general perception as Mr Malunga put it, that Mr Jordan was involved with ANC activity or activities and coupled to that the damage to property, people coming into Duncan Village were prevented from coming in, people going out were prevented, people were assaulted. Just the mere fact he was investigating a case where one of the perpetrators of violence, or one of the instigators of violence, or prominent member in his own mind of the ANC was involved. That in itself is sufficient for the purpose of deciding whether there was a political motive or not. He stated it that it was a normal course for members of the police and even in the CID who would get an opportunity of interrogating a person of this nature, that this would happen.
Now we have heard from Mr Malunga that it is possible that Warrant Officer Hall could have spoken to someone, he doesn't know that unfortunately, he didn't know about the torturing telephone or machine that was brought along even though it happened at the time, the torturing with electric shocks and all that. He wasn't aware that it was, or he didn't know that it was part of a plan or specifically planned for Mr Jordan on that specific day.
CHAIRPERSON: It doesn't appear that it was specifically for Mr Jordan, does it? As I understand what he agreed to my last questions that they were torturing all of the people as they came through, it was just a general policy that they had?
MR HAUPTFLEISCH: Yes I can agree that was Mr Malunga's evidence, Mr Chairperson, I can agree with that. That was not within Mr Malunga's knowledge, he did not know that a general ...(intervention)
CHAIRPERSON: He didn't do much to object to it, did he?
MR HAUPTFLEISCH: Well I think one can also accept that when you are acting on instructions or under a superior in the South African Police, you don't really doubt their authority or instruction, so I would submit that one cannot hold that fact that he omitted to object against him, he did state that he wouldn't have taken part or he would have taken part even if a normal crime was investigated if he was ordered by his superior. So I don't think one can actually hold that against him.
JUDGE MILLER: Well I think from his evidence himself that at that particular time he didn't in fact have any great objection to participating. I mean he had no desire to object to the behaviour of his colleagues because he said he believed he was doing it to protect the police etc and the police interests.
MR HAUPTFLEISCH: That is so, that is indeed so. I would therefore submit that there has been motive established that it wasn't for any personal gain or any personal vendetta or reason, that specifically then in this application Mr Jordan was assaulted or his rights violated.
I would also ask this Committee to seriously consider a part of the bundle before us, being page - sorry, if you can just bear with me? I think it was page 54.
CHAIRPERSON: That is his letter?
MR HAUPTFLEISCH: That is his letter yes, where he confirms the statement made by Mr Malunga under oath that there have gotten together. In fact Mr Jordan goes further than Mr Malunga, he actually says they became friends. They visit each other's homes and that he agrees that he should be given amnesty. He even goes further in that second last paragraph of that letter where he states that he's a committed officer loyal to his government, his track record is known to be ruthless to criminals. The entire Duncan Village community is crying now that he is transferred to Ndantsane and even the criminals are rejoicing. I would submit to this Committee that Mr Malunga is a candidate for amnesty and that his application should be favourable considered. If there is anything else you specifically want me to address at this point I would do so Mr Chairperson but for the time being I don't have any further submissions to make to you.
MR VAN BREDA: Mr Chairperson, actually due to the fact that according to the attested evidence on record my client is not implicated and therefore I have no submissions.
MR MAPOPO: May I also place it on record, Mr Chairperson, that my client would like to respond to the apology that is extended by Mr Malunga and we are not sure whether that can be accommodated procedurally at this time?
CHAIRPERSON: Do you want to give evidence?
MR MAPOPO: No not evidence, Chairperson, just to respond.
JUDGE MILLER: It's quite common in these proceedings, Mr Mapopo, and in fact it's very often appreciated by all concerned to give a victim a chance to make a statement in the form of an unsworn statement without being subjected to any questioning or cross-examination.
MR MAPOPO: Thanks Mr Chairperson. Mr Chairperson, Mr Jordan does not oppose the granting of the application. He himself is at peace with Mr Malunga. He knows it very well, Mr Chairperson, that Mr Malunga had been used as a tool to defend a morally reprehensible system of apartheid that has been defeated. There is no point in him holding any grudges with Mr Malunga, he regards him as his friend, he regards him as his officer. Therefore Mr Chairperson, there is absolutely no
objection. However we leave it to this honourable Committee to apply the law as far as the evidence is concerned, Mr Chairperson, and we have no submissions at all as far as his evidence is concerned. That is all, Mr Chairperson.
CHAIRPERSON: Thank you. Ms Thabethe?
MS THABETHE: No Mr Chair, I have no argument.
CHAIRPERSON: Thank you. Those of you who have been here before know and those of you who are here for the first time will now know, the practise is to give our decision in writing at some later stage rather than give a temporary decision so we will accordingly adjourn the matter to consider our decision.
JUDGE MILLER: Doesn't the victim want to say anything?
CHAIRPERSON: Does he want to say anything? Oh sorry.
MR JORDAN: Thank you Honourable Chairperson. Chairperson, there are just - it's a comment, as I've said to you already that I hold no grudge against Mr Malunga. We discussed this issue and we understand each other. I respect him as a committed police in his work but it is so unfortunate that Mr Hall is late, Captain van Wyk, Mr Naude, Mr Radue is present here, the very people that gave me the toughest time in my lifetime when I was in wheelchair, in pain, continued interrogation, interrogations time and again and today it is unfortunate that it's him that has to answer some questions while the very people who a week before showed me a photograph of Bishop Tutu, Captain van Wyk himself, and told that sooner than later you and that picture, you lie in the grave, I'll get hold of you and that's why on the particular day he said I'll give you the special attention to handle you. It's so unfortunate that even today he's not here.
My health today isn't what it is, I'm unable to drive, I have to employ somebody to drive, I enjoy driving. Sometimes as a parliamentarian there are times when I'm not present in the House, I have to attend treatment from my doctors. I have to travel to Cape Town. My medical aid gets finished before time and I have kids to feed, I have kids to educate and some of the key people, not Mr Malunga, are not present.
Whilst when it comes to Mr Naude, I want to put it clear on Mr Naude, when he fetched me in Kimberley, drinking beers in a - kept me in a desert like area in a car, putting tins of beers above the car, practising shooting while I was sitting on the car and unfortunately today he is not here. I'll repeat and I say I've no grudge.
The last area that I want to touch, it's unfortunate that the company of Smith Thabata and Van Heerden who were handling my case and they won the case and up to today I've never received a cent after the State lost the case. And they're happy men, they're moving around with luxury cars and I haven't received a cent and I'm busy using my own money in treating myself. I'm still getting treatment even today. Thank you Mr Chairperson.
CHAIRPERSON: Can I extend my sympathy and I'm sure the sympathy of the Members of my Committee, to you and there's a letter from you before us to Mr Mbethe and I would advise you to continue to consult both the bar counsel and the law society to seek assistance in the matter involving your case. I have no doubt that both those associations will do all they can to help you in that.
And that, gentlemen and the rest of the ladies - there are several, that concludes this hearing. I would like to thank all of you for your assistance during the course of the hearing. We now adjourn.
HEARING ADJOURNS
