CHAIRPERSON: Thank you. Yes, we have noted that, but we will proceed with the matter in the meantime. Mr Shai, who will be the first witness? Marvin Maesela? In what language will he be testifying?
MR SHAI: He indicated to us that he will proceed in English.
CHAIRPERSON: In English, very well. Mr Maesela, I want you to please stand to take the oath, will you please stand and just switch on. Are your full names Marvin Mogatle Maesela?
MR MAESELA: Yes, Honourable Chair.
MARVIN MOGATLE MAESELA: (sworn states)
CHAIRPERSON: Thank you, please sit down. Yes, Mr Shai?
EXAMINATION BY MR SHAI: Mr Maesela, just for the record, where, when and where were you born?
MR MAESELA: For the court record, my full names are Marvin Mogatle Maesela, I was born in Rockville in Baragwanath Hospital, on the 20th of October 1969.
MR SHAI: Is that where you were resident during the time of the incident for which you are applying for amnesty?
MR MAESELA: Yes.
MR SHAI: And what standard of education do you have?
MR MAESELA: The only exceptional period of absence from home, was when I attended school at Mulalathadi Lower Primary School for tutoring under my maternal grandmother. I then moved to do the Higher Primary School in Rockville, in Molapo, Soweto. After passing my general primary learning, I proceeded to Molapo Secondary School. I then studied at that school until standard 9, in 1986. I completed my matric as a private candidate in 1987.
MR SHAI: So at the time of the incident, were you studying or were you just idling?
MR MAESELA: At the time of the incident, I just abandoned studies at the Technikon Witwatersrand, where I was studying National Diploma in Engineering.
MR SHAI: You made an application for amnesty for an incident that took place on the 5th of February 1993, is that correct?
MR MAESELA: That is correct, yes.
MR SHAI: And the incident led to your conviction and sentence for murder, possession of a firearm and ammunition and attempted robbery, is that correct?
MR MAESELA: It is correct, yes.
ADV GCABASHE : Sorry, just go over those aspects again, the offences.
MR SHAI: It is murder, possession of a firearm and ammunition and attempted robbery. During the time of the incident, what was the situation like at Rockville where you resided as far as the political situation was concerned?
MR MAESELA: As far as the incidents is concerned, in the early 1980's as a student, I was exposed first hand to the brutality of gun-wielding, baton charging and teargas spraying by Police and the general atmosphere of harassment then prevailing. On some occasions indiscriminate attacks by the Police and students (indistinct) inadvertently, and invariably drew me to running battles and general chaotic embattlement that normally ensued. It is the cumulative effects of these frequent acts of violence by the Police that nurtured my hatred against the institution of apartheid, particularly their Security apparatus and subsequently provided the moral need to take up arms or some such necessary means to combat this systematic atrocities. My initial introduction to the formalised political struggle, was in 1991 through a local hero, an Umkhonto weSizwe cadre generally known to us as comrade Moli, but his true name is Molife Metsing, who underwent training in 1986 to receive underground military instruction in the handling of weapons of war, sabotage, the fermenting of revolution and the promotion of political propaganda. Cadre Molife Metsing was to me and others of my contemporaries, a highly regarded role-model and his commitment to the liberation effort, was decidedly inspirational to me. It is cadre Molife who recruited me into a local cell of Self Defence Units, which as we came to learn through clandestine political education, were designed to defend the gains of the emancipatory effort and the protection of the African people from constant harassment by the Third Force attacks. Specifically as hallmarks of these attacks, were drive-by shootings, military style executions, attacks from hostel dwellers, victimisation of prominent political activists and unionists. Owing to the unbanning of political parties in 1990, the ANC internal formation began forming Self Defence Units. Our Units was composed of cadres Moses Monamodi, Tabo Metsing who was the brother to cadre Molife Metsing, cadre Maheta, whose surname is unknown to me, and myself. For no reason at all, our Unit did not have a name or style to go by. Cadre Molife Metsing then introduced us to cadre Oupa, whose full particulars are Mr Oupa Monareng who is presently a member of Parliament Legislature in Gauteng Province. Cadre Oupa Monareng was a returned exile Political Commissar who instructed us in the political objectives of the SDU's and the general riddlements of ordinance and safe-shooting and on the overall, the efficient execution of the SDU tasks. As a Unit we were also trained in the use of AK47 automatic rifles, pistols, grenades. Part of our political education included the history of the MK, the contents of the ongoing violence, the fundamental objectives of the SDU which were to disarm members of the then South African Police, to demoralise them in the long run, defend members of our communities from Third Force attacks and lastly, in our political training, cadre Oupa Monareng gave us instructions to disarm members of the Police. At the time of these instructions without any specific means to target, the discretion to select which Police to target was left solely upon us. The operations of our Unit commenced around 1991, (indistinct) by the heightened hostel violence especially around Merafi hostel which is not far from where we lived in Rockville. For the strengthening of the Unit and the effective execution of designated missions, we were reinforced by two externally trained comrades who happened to be brothers, cadres Thabiso Tekane and Nataniël Tekane. Guns and the accompanying ammunition would always be collected from cadre Molife's home, supplied to him by sources unrevealed to me. In our possession as a Unit, we had three AK47 rifles, two handgrenades, one 38 pistol and one 9mm pistol. Cadres Molife, Nataniël and I carried AK47 rifles. The nature of our operation were principally retaliatory and largely contrived on the heat of the moment. During those days, I recall clearly that the majority of the attacks occurred at night. The imminent attacks from the hostel dwellers were alerted to us by the sheer proximity to the hostel of the house we occupied and also by the vigilance of our revolving patrols. In one of those attacks Thabiso Tekane was so injured that he had to be carted away to safety. I do not recall wounding anybody in the process of exchanging of fire. In the course of time and between operations, we held meetings especially at cadre Molife's home. In these meetings, we would discuss structural command, operations and the execution of orders, psyching for eventualities like prison, permanent disablement or at worst the supreme sacrifice, which is death. The commanding role of the externally trained comrades were, where there were no attacks, we would attend other social aspects of our lives. In the event of requiring vehicle mobility, either cadre Tabo or Molife would provide us with some. Further that during the skirmishes Police would participate on the side of the attacking hostel dwellers, on some occasions the attackers would use Police armoured vehicles as shields.
MR SHAI: Were you a member of any political organisation at the time of the incident?
MR MAESELA: I was a supporter of the African National Congress. I was acting as a member of the SDU's which were established by the self same African National Congress.
MR SHAI: You say that Oupa Monareng gave you instructions, did you receive instructions directly from this Oupa Monareng or was there any person who relayed the instructions to you?
MR MAESELA: As I have said before that Mr Monareng was directly involved in giving us the crash course, he himself gave instructions, general instructions to the effect that members of the South African Police were to be disarmed. It came directly from Mr Monareng.
MR SHAI: The fire weapons that you used, who was supplying them to you?
MR MAESELA: The weapons that were in our possessions, came from the late Molife Metsing, as to where they came from, I have no idea up until this day.
MR SHAI: As far as the incident on the 5th of February 1993 is concerned, what was your specific instructions?
MR MAESELA: As I have mentioned before, that instructions were to the effect that members of the SAP were to be disarmed, so those instructions were of a general nature, which means that it was left unto us as to the identifications of the Police who were to be attacked, it was an initiative that was taken by our Unit.
MR SHAI: And by disarming these Police officers, did you see any possibility of death being inevitable at some given situations?
MR MAESELA: As a trained member of the South African Police Force who carried a weapon, we foresaw that the only way to disarm members of the Police, was that we ourselves, should be armed. It goes without saying that we had thought about eventualities at that time, but our major or rather our principal objective was to disarm and not to kill.
MR SHAI: What preparations preceded the incident of the 5th of February 1993?
MR MAESELA: As I have made mention here in the affidavit, that in pursuance of the Police disarmourment action plan in January 1993, we randomly identified certain Policemen from Rockville whose identity was revealed to me during the trial as Mr Satega. His special vulnerability was enhanced by his Police apparel and frequent driving of big Police trucks, which made him a prominent target for disarmourment. We began reconnoitring the regularity or otherwise of his movements, which means times of arrival from work, the types of weapons usually carried by the late Mr Satega, time of departure for work at all and after gathering of this information about his movements, we set about to do the following: It was designated that 4.30 am or 5.00 am was the hour which we were to disarm the late Mr Satega. We chose this time because we saw as it was policy of the African National Congress that members, civilians were - the safety of civilians were to be safeguarded and it was this time, 4.30 am or 5.00 am in the morning, was chosen because it was safe for members of the community and also we took into consideration the safety of his immediate family. At the time of driving out of his truck for work, we would lay and wait and at the time of closing the gate, we would pounce on him, point our firearms at him and disarm him, disarm him of his service pistol. We proposed to do that early so as not to endanger his life or his family's which may easily be caused by the excitement of passers-by.
MR SHAI: Was that part of your planning?
MR MAESELA: Part of our planning was - in fact the overall part of our planning was never to kill, but to disarm, principally we went there to disarm Mr Satega.
MR SHAI: On the 5th of February 1993, will you please take us through what led to the death of Mr Satega.
MR MAESELA: On the night before the attack, we slept at the same place and on the 5th day of February 1993, we proceeded towards Mr Satega's house. As we were doing so, we heard a roaring sound of a truck. Knowing that it could not be him, we had to ascertain whether or not it was a Police truck or a civilian truck. Together with Thabiso we took position opposite the shops. As we watched from the side of the approaching noise, we noticed a bakery delivery van and I would like to bring it to the attention of the Honourable Committee here that coming to this very incident, or the incident of this bakery delivery van, it happened, it was purely coincidental that as we were proceeding towards the deceased's house, we heard the sound of this bakery van and as I shall explain before this Committee that immediately after having identified that this was nothing but a bakery delivery van, we abandoned position immediately and instantaneously and signalled to Thabiso towards the Satega house. But immediately as we moved towards Mr Satega's house, shots were fired because at this time, we had split into two groups which I was with Thabiso Tekane and the other three of my comrades which is Nataniël and the other two recruits, were the ones who were nearest to this bakery delivery van. As I would like to explain to this Committee that it was never our intention to rob this bakery van. As it happened on that day that we never even robbed this bakery delivery van, but at the time when I and Thabiso instantaneously abandoned the position and proceeded towards Mr Satega's house, shots were fired at the back and immediately when we reacted, both - the three of our comrades came running to us and told us that the security people who were guarding the bakery delivery van, shot, fired a shot at them and Nataniël Tekane also responded by firing shots, but no one was injured and then we proceeded to Mr Satega's house. If it was our intention to rob that bakery delivery, we had the fire power to do so, but we never did so. We only abandoned that position after realising that that van was of no threat to our position. Then after this very incident, we proceeded towards the Satega house. We then quartered in concealment next to a mine dump which is adjacent to the deceased's house. At the time of his revving the engine for warming, we quickly advanced to the shrubbery where we could not be seen, which was the house next door to the deceased's house. After he reversed the truck, he alighted to close the gate, closed it and went back into the truck. As I have mentioned that our plan was to lay in wait and wait for Mr Satega to drive out of the yard, immediately when he alighted to go close the gate, then we would pounce, point our firearms and disarm him of his firearm, but it did not happen as planned, because at this point, Thabiso quickly sprung into action and pointing his firearm towards the deceased, he accosted him. On account of the dividing wall and the shrubbery, we could not see Thabiso nor our target, the deceased. At that point, about eight seconds after Thabiso had approached the deceased, a shot rang out. Not having contemplated this eventuality and the anxiety about the fate of Thabiso, I pointed my gun at the truck and fired shots and the fleeing truck. Nataniël fired shots, some shots as well and then five to eight seconds after the truck had sped passed, Thabiso reappeared, signalling that we should follow the truck. Thabiso started running after the truck, firing at the same time. I then beckoned to the two recruits, but Nataniël did not move. Eventually also running towards the truck, I realised it would turn into Vunla Drive towards Elka Stadium. The truck reduced speed until it ground to a halt. Just at that time, some vehicle lights from an unexpected car appeared on the road, and I then decided to retreat. I threw myself on the ground, crawled military styled and motioned to the two other comrades to do so. At the road a few metres away, Police were patrolling the streets and two white uniformed Policemen were training their torches on the bushes in the search of any movement. Advantaged from my position, I could have shot at these two Policemen, but my chief mission was to disarm and not to kill even though the one mission at hand, had awry. I did not shoot at the two Policemen. I crawled out of position, scaled behind a wall of the nearby houses and fled. At that time, the fate of my colleagues was unknown to me. I would like to submit before this Honourable Committee that the incidents of the 5th of February 1993, has brought so much suffering to the family of the deceased, Mr Satega and I have also lived my life praying before God that this day would come, so that I would face them directly and ask for their forgiveness for murder is murder is murder, I can never justify murder, be it committed for a just or an unjust cause, murder is still murder. But on the day our chief mission was to disarm and not to kill Mr Satega. In this day, I would like to ask before this Committee to be given the opportunity whenever it pleases, to ask for forgiveness from the family of the deceased, Mr Satega. Even if I know it is hard on their part, and on my side, I would have to live with these incidents for the rest of my life, on my conscience. It was for the first time that I had committed murder. Thank you.
MR SHAI: Why was it necessary to chase the truck after you had seen that your plan has not gone according to plan?
MR MAESELA: As I have explained before that because of the dividing wall between the position that we were in and the yard, Mr Satega's yard, we were unable to see as to who between my comrade Thabiso and the deceased, fired that shot. At that time when - after the incident of firing the shot had happened, Mr Satega sped passed and because of the confusion, because of not knowing who between my comrade and Mr Satega fired that shot, we acted impulsively and we thought it best at that time, we never had plan B, because plan A had gone awry, we never had plan B and we were just acting out of confusion at that time. As Thabiso motioned to me that we should follow, I immediately followed without even thinking clearly in my mind.
MR SHAI: At the time when Thabiso beckoned to you, could you see the other comrades you were with?
MR MAESELA: The other comrades were behind me. After I had fired shots, the other comrade, Nataniël, also fired shots and Thabiso beckoned that we should follow. I together with Frank and Sidiso, followed behind Thabiso and Nataniël, I don't know what happened to him, but as I came to understand, his firearm jammed and he decided to stay behind.
MR SHAI: At what stage did you learn that the Policeman had passed away?
MR MAESELA: I only learned during the day, long after the incident had happened because his truck came to a halt at a bridge between Elka Stadium and I would like to concede and acknowledge before this Commission that I may have fired the fatal shot and I would never dispute that and because of the truck coming to a halt at the Stadium, it simply means that Mr Satega at that time was badly injured from the bullets fired from our guns.
MR SHAI: No further questions, Mr Chairman.
NO FURTHER QUESTIONS BY MR SHAI
CHAIRPERSON: Thank you Mr Shai. Mr Richard, have you got any questions?
CROSS-EXAMINATION BY MR RICHARD: Yes, Mr Chairman, I do have questions. Sorry, I did not know I was not being recorded, I do have questions. My first question is the chronology. At the end of which year did you terminate your schooling?
MR MAESELA: That was 1991.
MR RICHARD: And that is when you were studying what?
MR MAESELA: Actually I was studying Architectural Technology at Wits Technikon, sir.
MR RICHARD: Then, at what - during what period were you inducted into MK?
MR MAESELA: The same year, 1991, sir.
MR RICHARD: And then what did your particular cell do during the year 1991/1992? Did it do any operations?
MR MAESELA: We were involved in the hostel operations at Merafi hostel.
MR RICHARD: That was 1991/1992?
MR MAESELA: Yes.
MR RICHARD: At page 11 of your Bundle, you record that Mr Molife, Mr Metsing, died?
MR MAESELA: Yes.
MR RICHARD: Do you remember the date?
MR MAESELA: That was 1992, but I don't remember the exact date.
MR RICHARD: Do you remember approximately the month?
MR MAESELA: No.
MR RICHARD: Was it at the beginning of the year or the end of the year?
MR MAESELA: It was probably the beginning of the year.
MR RICHARD: So the beginning of 1992, your Commander so to speak, passed away?
MR MAESELA: Yes.
MR RICHARD: Who took over?
MR MAESELA: Thabiso took over.
MR RICHARD: Now, do you know who Thabiso liaised with and reported to?
MR MAESELA: For the record, I do not really have the specific knowledge as to who he reported to, but what I know is that he did report to some authorities.
MR RICHARD: I didn't quite hear your answer, from your recollection, who did he report to?
MR MAESELA: I do not know specifically who he reported to.
MR RICHARD: When did ...
ADV DE JAGER: I don't know whether you have heard the second part, but he knew that they had reported, that he had reported, is that correct?
MR MAESELA: Yes.
MR RICHARD: When exactly were you introduced to Mr Oupa Monareng?
MR MAESELA: 1991 sir.
MR RICHARD: 1991?
MR MAESELA: Yes.
MR RICHARD: And for how long were you in communication with him?
MR MAESELA: The crash course lasted for about a week or two.
MR RICHARD: And after the conclusion of the crash course, what further communication did you have with him?
MR MAESELA: Like I said before, that we were then integrated into this Unit of Molife Metsing who was then responsible for whatever reports were to be made.
MR RICHARD: Tabo was now the person in charge of your cell and Mr Monareng was clearly an authority figure, is that not correct?
MR MAESELA: It is so.
MR RICHARD: Now after the crash course, did you have any communication with Mr Monareng?
MR MAESELA: Personally, no.
MR RICHARD: Do you know whether anyone else did?
MR MAESELA: Like I said Molife Metsing, before he died he was the Commander of this Unit and he did report, but I do not have any specifics as to who he reported to.
MR RICHARD: Tabo, do you know who he reported and took instructions from?
MR MAESELA: What I know is that Molife Metsing was a trained cadre, who he himself introduced us to Mr Monareng, so logically I would say that he was in contact with Mr Monareng.
MR RICHARD: However you had no personal knowledge about what happened above you?
MR MAESELA: No, no, I did not.
MR RICHARD: At the - as I understand your evidence, in 1991 your instructions per Mr Molife and then later by Mr Monareng was to the effect that Police were legitimate targets, is that correct?
MR MAESELA: It is correct, yes.
MR RICHARD: Now, when I use the word legitimate target, what do you understand that to mean?
MR MAESELA: As an organ of an illegitimate State, as people who implemented policies of an illegitimate State, I would understand legitimate in that context.
MR RICHARD: So part of the armed struggle was that legitimate targets could be attacked?
MR MAESELA: The armed struggle was against the apartheid State in its holistic term. It follows then sir, that if a Policeman or Police organisation or structure was a legitimate target, while the armed struggle was in progress, it was permissible to attack it, yes or no?
MR MAESELA: I don't understand your question, can you rephrase it?
MR RICHARD: Was it permissible during the period of the armed struggle, to attack Police or Police institutions?
MR MAESELA: But it is legitimate then?
MR RICHARD: Yes?
MR MAESELA: They are a security organ of an illegitimate government sir, which is the policies that passes from above, are implemented by the very same Police. It is like these policies are dependent on the Police apparatus for implementation, without the Security structures, it is difficult for the government to carry its duties.
MR RICHARD: During your evidence in chief, you made a very specific point of saying something about the role of external MK members?
MR MAESELA: Yes.
MR RICHARD: Why did you make a special point of that?
MR MAESELA: They were part of our Unit.
MR RICHARD: Did they enjoy any specific authority?
MR MAESELA: As experienced members of the MK, I should think it was important for our Unit, especially we, the people who trained internally, to have some form of people who knew exactly what was the procedure of going about MK duties.
MR RICHARD: So, who was superior to who, you had Tabo who as I understood - correct me if I am wrong, I might have made a mistake - he was internal?
MR MAESELA: Molife. I received a crash course together with Molife, Moses - no wait, Tabo, Maheta and Moses. The three externally trained are Thabiso, Nataniël and Molife Metsing.
MR RICHARD: When the external members joined your cell, did they take command?
MR MAESELA: Yes.
MR RICHARD: And so that means that Tabo who was internal was subordinate to one of the external members, correct?
MR MAESELA: Yes.
MR RICHARD: To whom was he subordinate?
MR MAESELA: Tabo as I have mentioned in this affidavit, was one of those who received training internally.
MR RICHARD: Yes, but now your cell consisted of externally trained people and internally trained people?
MR MAESELA: Yes.
MR RICHARD: Now, Tabo at one point was the Commander of your cell.
MR MAESELA: Molife. Molife.
MR RICHARD: Yes, now which of the external people did you account to and report to within the cell?
MR MAESELA: Molife.
MR RICHARD: Thank you. Now, we then turn to the specifics of the deceased, when was he first identified as a target?
MR MAESELA: A few days before the incident.
MR RICHARD: A few days before the shooting?
MR MAESELA: Yes.
MR RICHARD: On what basis was he located, who located him?
MR MAESELA: Purely on the basis of being a member of the SAP.
MR RICHARD: Who located him?
MR MAESELA: He is in the same location as we are.
MR RICHARD: Yes, but which one of your cell members identified the deceased, who said ...
MR MAESELA: We all knew as to his location, we all knew that around our vicinity there was a member of the SAP.
MR RICHARD: For how long were you in that location?
MR MAESELA: I grew up in the location.
MR RICHARD: Then for how long did you know the deceased was a member of the South African Police?
MR MAESELA: Specifically I cannot say, but they were not long in that area.
MR RICHARD: That means the deceased was not long in that area, is that your answer?
MR MAESELA: Truly speaking.
MR RICHARD: So from when he moved into that area, you were aware that he was a Policeman?
MR MAESELA: Yes.
MR RICHARD: And for how long was that?
MR MAESELA: I cannot say specifically, I don't know.
MR RICHARD: Are you aware of anything else concerning the deceased, that he might have been attacked at some previous point in time?
MR MAESELA: No, no, I am not aware.
MR RICHARD: Had you ever met him before the shooting?
MR MAESELA: No, I did not know him personally.
MR RICHARD: Had any of your cell members met him?
MR MAESELA: We knew him from a distance.
MR RICHARD: But no one had spoken to him and met him directly?
MR MAESELA: No.
MR RICHARD: During this period between 1991 and 1993, how did you support yourself?
MR MAESELA: We had families who supported us.
MR RICHARD: Did you have any source of income?
MR MAESELA: Like I say we depended on our families.
MR RICHARD: So you had no source of income?
MR MAESELA: No.
MR RICHARD: What did your father do for a living at that time?
MR MAESELA: My father?
MR RICHARD: Yes.
MR MAESELA: He was working at (indistinct) Chambers.
MR RICHARD: As what?
MR MAESELA: As a clerk or a messenger.
MR RICHARD: And your mother, did she work?
MR MAESELA: Yes, (indistinct)
MR RICHARD: And do you have any brothers and sisters who contributed to the household income?
MR MAESELA: No.
MR RICHARD: And how many siblings are there in your family?
MR MAESELA: Two, I am the third.
MR RICHARD: When you planned this incident, am I not correct in making the submission that the intention at the planning stage, was that while the deceased was outside his truck and busy locking the gate, he would then be attacked and disarmed?
MR MAESELA: Those were the specifics of the plan.
MR RICHARD: Why did that go wrong?
MR MAESELA: Like I explained here on page 10, 9.3, that we then quartered in concealment next to a mine dump. This mine dump was about ...
MR RICHARD: Page 10, I beg your pardon?
MR MAESELA: 9.3.
MR RICHARD: Page 17, sorry.
MR MAESELA: Page 10 of the affidavit sir. Oh, it is page 17 on yours?
CHAIRPERSON: Yes, page 10, typed page 10 of the affidavit, but page 17 of the paginated record before us. Yes, Mr Richard.
MR RICHARD: Thank you Chairperson. We now understand each other, typed page 10, page 17 and you refer to paragraph ...
MR MAESELA: 9.3.
MR RICHARD: Yes, carry on. We quartered concealment next to a mine dump which was adjacent to his house. This mine dump was about 15 to 20 metres from the deceased's house, so from this mine dump, we could see directly into the yards nearby. What happened was that immediately when he reversed his truck out of the yard, we then ran towards the houses and it so happened that by the time he moved out of the gate, he closed his gate and then moved into the truck, it was at this time that we came running towards, so we were about a few seconds late of our plan, that is why it went awry, I should think.
MR RICHARD: Did he see you approaching?
MR MAESELA: I don't think so, he couldn't have.
MR RICHARD: And it is quite correct that at that stage, you could have aborted the attack?
MR MAESELA: No, no.
MR RICHARD: Why not?
MR MAESELA: There was still time. The only thing was that he had already closed the gate and moved into his truck, so there was about a quarter of a fraction late.
MR RICHARD: But now at this stage, had he closed the truck door?
MR MAESELA: That I cannot say because Thabiso was the first person who sprung into action and at that time, we were behind this wall, there was this wall partition and we could not see as to what was happening around that wall.
MR RICHARD: When you say
"... Thabiso quickly sprung into action and pointing his firearm towards the deceased, he accosted him"
did you see that?
MR MAESELA: Like I said there was a wall partition between and we could not see what was happening on the other side of the wall, so when Thabiso went towards the deceased, he went there pointing his firearm. As to what happened at that very scene, I am not aware.
MR RICHARD: What was Thabiso doing at the point that he went out of your range of vision, or out of your field of vision?
MR MAESELA: Like I said, he had his firearm on his hand and he went running towards the truck.
MR RICHARD: And then before he got to the truck, you lost sight of him because of the wall?
MR MAESELA: Because of the wall, yes.
MR RICHARD: Then how do you know that the deceased had got into the truck and closed the door?
MR MAESELA: Isn't it - Thabiso explained to us after the incident.
MR RICHARD: We have established you didn't see directly what was happening, but now, once the deceased was in the truck and the door shut, let us hypothesise, would it be still possible without the use of firearm, to disarm a Policeman and ...
MR MAESELA: It would still be possible.
MR RICHARD: How would that be done?
MR MAESELA: If you directly point your firearm and he would see that his life is in danger, according to our plan if he immediately saw that we were in possession of firearms, that in itself, was to count in our favour because we thought he wouldn't put his life in danger, so he logically would surrender the weapons.
MR RICHARD: But an equally possible method of subduing him, would be to open fire?
MR MAESELA: No. Logic is that if somebody points you with a gun, there is nothing that you can do, but surrender without even firing. He is a trained member of the SAP, he has used firearms before, so he knows as a member of the SAP, they were psyched towards such eventualities.
MR RICHARD: However, you did not see what happened between the Policeman and Thabiso?
MR MAESELA: Yes.
MR RICHARD: Why according to your version, did Thabiso open fire?
MR MAESELA: This is my version because Thabiso said that when he went there, as he will explain before this Committee, he pointed his firearm and at that time, the way he puts it is that the late Mr Satega went as if he was going for his firearm and because he had already exposed himself, he thought it best, because Mr Satega was going, he went as if he was going for his firearm, he thought it best that he should open fire.
MR RICHARD: However, that is information that was reported to you, which you did not see? At page, typed 11, indexed 18, 9.7 you say
"... at that point, about eight seconds after Thabiso had approached the deceased, a shot rang out."
What happened next, you heard the truck? Did you see the truck?
MR MAESELA: It went passed from where we were standing. After the shot rang, it just went passed.
MR RICHARD: What did you do then?
MR MAESELA: Like I have explained before the Honourable Committee, that we acted impulsively, we didn't know as to who between Thabiso and the deceased, fired that shot. We acted impulsively, a shot had just gone off and here is the truck speeding away, Thabiso could have been injured and we acted impulsively and then started firing.
MR RICHARD: Do you not agree that a more rational acts would have been to do nothing, to just let the truck drive away?
MR MAESELA: Looking at the time difference, we never had time to even think within that fraction of a moment.
MR RICHARD: Were you being shot at?
MR MAESELA: Like I say, we never knew, personally I didn't know as to who between Thabiso or the deceased fired that shot. I never knew because I couldn't see as to what was happening around that wall. I acted impulsively without even thinking. We had a plan A, we never had a plan B. There was confusion reigning at that time as to what was happening. The plan had gone awry at that time.
MR RICHARD: My submission and I would like your comment on this, is that there were three men and one Policeman. The Policeman according to all accounts, was not suspecting an attack and would be out of the truck for the duration of the time that it took him to lock the gate and return to the truck, climbing in and closed the door. Is it not so that it was completely disproportionate to use firearms, you could have simply overpowered him with physical force?
MR MAESELA: Members of the Police do carry firearms and again, logically one cannot disarm somebody who is carrying a firearm, with bare hands. Members of the SAP were trained, they were armed, the were professional in approach.
MR RICHARD: Did you see him lock the gate?
MR MAESELA: We never, like I said, we never saw what happened around the corner.
MR RICHARD: How was the gate locked?
MR MAESELA: I don't know. I never saw what happened around, there was a wall partition.
MR RICHARD: How long did it take for the truck to leave the gate, stop, and for the driver to come back into the truck, can you give an answer?
MR MAESELA: I don't understand, where from sir?
MR RICHARD: The truck was in the driveway of a property?
MR MAESELA: Yes.
MR RICHARD: You heard the truck starting up and revving and it moved out of the driveway?
MR MAESELA: Yes.
MR RICHARD: Now there was a gate to be shut, so that meant the truck had to stop, the driver had to get out and go to the gate, shut the gate which involved him doing something, either fiddling with keys, you can't answer, you didn't see and then once the gate was shut, climb back into the truck and shutting the door. How long do you estimate that that exercise would take?
MR MAESELA: I cannot specifically say how long.
MR RICHARD: But a fair number of seconds, if not half a minute, a minute, a minute and a quarter, I can only say a fair amount of time?
MR MAESELA: Like I say we were about 15 to 20 metres from his house, we had to come running at the house next door, so it all takes time. All of this action takes time, and at that time, he was already reversing out of his yard.
MR RICHARD: In the summary of substantial facts submitted by the Attorney General's office before the trial, at paragraph 3 ...
ADV DE JAGER: What page?
MR RICHARD: Indexed 51, there is the statement "numerous shots were fired at the truck". How many shots do you think were fired, do you have a recollection?
MR MAESELA: I don't know how many exactly shots were fired.
MR RICHARD: Was it more than two, was it more than 10?
MR MAESELA: Probably more than two were fired. I fired from an automatic rifle.
MR RICHARD: This summary then goes on to say "an attempt was then made to remove his firearm." Is that correct?
MR MAESELA: The primary, like I said the primary objective was to disarm the firearm, but we never had the chance to do so.
MR RICHARD: Did you attempt to remove the firearm, did you go up to the truck after it had become stationary, pulled to a stop, opened the door?
MR MAESELA: No, we never got to the truck.
MR RICHARD: What prevented you?
MR MAESELA: Like I said here, that we saw a car approaching, we saw car lights approaching, this was at the time when we decided to retreat out of that situation.
MR RICHARD: Once this other car arrived, did you know who was in that car?
MR MAESELA: I never noticed, at that time, I was retreating out of the situation, it was at a time when I was crawling on the ground and one could not see as to what was happening in the street.
MR RICHARD: Isn't it so that at any point in the operation, you could have done exactly that, because now we had another car on the scene with unknown occupants as far as you were concerned, and you managed to get away, so that means that at any time, you could have retreated from the attack and aborted it as you did when the new vehicle arrived on the scene?
MR MAESELA: As I have explained before sir, that just after Thabiso beckoned that we should follow the truck, it was at that time when confusion was reigning around, you know, and we went after the truck and it was only at the Stadium that I started to think rationally, to say that once I would stick in this situation, it would mean that I will not be realising the primary objectives which is to disarm and maybe it would lead that lives would be lost, so that is why I decided to retreat out of that situation. Like I said here, two members of the Police came straight towards me, but they couldn't see as to exactly where I was. I had the advantage over the two members, I could have shot at them. They didn't see exactly where I was and I had my rifle trained at them, but I couldn't do it because I battled with that in my mind, and eventually I thought of the primary objective which was not to kill, but to disarm members of the Police,
MR RICHARD: And ...
MR MAESELA: So, I got away.
MR RICHARD: And hence my proposition that at any point in time, the attack on the deceased could have been aborted and you could have disengaged and left him alone?
MR MAESELA: When, when was that sir?
MR RICHARD: At any point in time.
MR MAESELA: The only time this plan went awry was after a shot was fired and it was already late, that shot caused confusion, that shot made us to act impulsively. If that shot was not fired, my profound belief is that we would not even have fired at the deceased, because our intention, our plan was only to point firearms and disarm him of his service pistol and not to shoot, or rather to kill. That is why I even said that I can never justify murder. I mean even if it be committed for a just or an unjust cause, I can never justify murder.
MR RICHARD: Now, what flows from what has been said so far is that you had a target who you had observed and studied, is that not correct?
MR MAESELA: Can you repeat your question again.
MR RICHARD: You had a surveyed and considered your target, the deceased?
MR MAESELA: That is true sir.
MR RICHARD: You had made notes as to when he got home from work, when he left for work, what sort of firearm he carried?
MR MAESELA: Yes.
MR RICHARD: What sort of vehicle he drove, etc?
MR MAESELA: Yes.
MR RICHARD: So you knew your target's movements and habits and specifics, correct?
MR MAESELA: Correct.
MR RICHARD: The essence of it is that before you set out at four o'clock that morning, you knew you were going to attack an armed man, is that not correct?
MR MAESELA: That is correct sir, with the intention of disarming.
MR RICHARD: You have also confirmed in your evidence today, that a trained Policeman ought to know how to use his firearm, in your opinion so that meant that there was a very real and imminent possibility of a fire fight, a firearm, a fire exchange between you and the deceased?
MR MAESELA: Because of our number, we had thought this to be a very easy mission. We were five, three of us were armed with firearms and he was one, and our plan, like I said, was only to point and logically speaking, we thought that if he saw the firepower that we had, he naturally would surrender his firearm.
MR RICHARD: Let's go to the scene of the shooting, there were five of you?
MR MAESELA: Yes.
MR RICHARD: How near was the nearest person to the gate?
MR MAESELA: About three, four metres away.
MR RICHARD: And how far away from him, was the nearest other person?
MR MAESELA: The nearest other?
MR RICHARD: The other one of the five? You've got one who was two, three metres, or three, four metres away from the deceased when he was out of the truck, and now somebody was near him. How far away was that person?
MR MAESELA: We were all on the same place before Thabiso could run towards the deceased.
MR RICHARD: So that means that from what you have said earlier, you intended that the five of you, should confront the deceased so that he could see all five of you?
MR MAESELA: That is true.
MR RICHARD: And you knew where this wall was?
MR MAESELA: Where?
MR RICHARD: Where this wall was?
MR MAESELA: Yes, we knew.
MR RICHARD: The wall that so to speak, obscured your view? Isn't it strange that nonetheless, one person advances from the group of five and a shot goes off, instead of all five attacking the man when he is vulnerable, out of the vehicle, fiddling with his keys and his gate and, isn't that the moment that would have been appropriate for all five to accost him?
MR MAESELA: Like I said the appropriate moment that we chose was at the time when he would be locking his gate, but it so happened that when we came to that position' that he had already done so.
MR RICHARD: But you had all night to set up? You had all night to set up your ambush?
MR MAESELA: All night?
MR RICHARD: You left at four o'clock, you could have left at three o'clock, you had as much time as you wanted to get into position?
MR MAESELA: Because of that dividing wall sir, it was important on our part, that we should be like I said here on 10.17, it was important that we quarter concealment next to the mine dump, because if we would be next to his gate, we wouldn't know the time when he would be reversing his truck. But from our position, it was even safer to do so.
MR RICHARD: Now, I will return to the point, but after the event, you were arrested and it is correct according to your statement, that you were tortured?
MR MAESELA: Yes, I was tortured.
MR RICHARD: Now, during the course of your torture, what did you admit?
MR MAESELA: I admitted to the murder of Mr Satega.
MR RICHARD: You admitted to the murder in what terms? Did you admit being the person who pulled the trigger to kill the deceased?
MR MAESELA: As one of those who pulled the trigger, yes.
MR RICHARD: In fact you admitted to setting up an ambush, waiting for the deceased to go into it, and shooting him when he was in the killing field of the ambush, is that not correct?
MR MAESELA: Actually you should understand that when one is making a confession under duress sir, the whole cause or rather, that whole confession is put in such a way as the Police want it to be, not exactly how it happened. By the time I tried to explain that our principal objective was to disarm and not to fire, they did not entertain that and every time that I tried to explain as to the political surroundings or rather the political implications of this whole case, they wouldn't entertain that.
MR RICHARD: We haven't yet started with political objectives, but robbery consists of the taking by force of a thing from another person, so it is correct in terms of an ordinary Policeman's logic, that you intended to use force to take his firearm?
MR MAESELA: Yes.
MR RICHARD: And therefore commit robbery? That is what a Policeman would call it?
MR MAESELA: That was what was recorded on the confession.
MR RICHARD: Is there anything ...
MR MAESELA: But we do not refer to it as firearm robbery, we refer to it as Police disarmourment. On Police terms it is referred to as robbery.
MR RICHARD: Sir, I understand the difference between the difference in words now, but at the time, a Policeman investigating a crime without taking into account the politics of the time, would look at it this way, he would say did you go up to that particular address with the intention of using force to take a firearm?
MR MAESELA: Yes.
MR RICHARD: You said yes.
MR MAESELA: That was not the way he put it.
MR RICHARD: But that is in substance, what your confession says, you did?
MR MAESELA: Exactly.
MR RICHARD: And it is in substance what you have told this Committee, today, you did?
MR MAESELA: In a way, yes.
MR RICHARD: The only factual distinction is between whether you personally pulled the trigger which resulted in the shot which hit the deceased in the neck or whether one of the other people who shot as well as you were responsible for that particular shot?
MR MAESELA: Like I have submitted and acknowledged before the Honourable Committee that I might have fired the fatal shot, I will never dispute that fact.
MR RICHARD: Do you know which shot it was that you fired?
MR MAESELA: I don't know, like I say if it comes to a push, I will never even dispute that fact. I take full responsibility of my actions, sir.
MR RICHARD: And you have also admitted that you were part of a group that foresaw the probability, the very high probability that during the course of the taking of the firearm from an armed man, a gunfight would ensue?
MR MAESELA: We never entertained that eventuality. Like I said before that logic teaches us that if you are pointed with a firearm, you have to surrender your firearm. As a trained member of the Police, such psyching up happens in the course of one's training, one who produces his firearm first, is the one who normally ends up being the winner in that situation. You do not have to do anything that would endanger your life.
ADV DE JAGER: Mr Richard, as far as I could follow and having listened to your cross-examination, it seems to be common cause that he, the applicant, was a member of a group of people who wanted to rob a firearm and in that process, killed a Policeman? Or isn't that common cause?
MR RICHARD: Chairperson, the two issues that are being canvassed, whether the force used was proportionate or not, in other words the proportionality, and what comes next is whether the motive for the theft was purely commercial and a-political in other words an act of banditry or whether it was political.
ADV DE JAGER: It is not common cause that they as freedom fighters, wanted to rob a firearm? That part is not common cause?
MR RICHARD: What I have before me is the ipse dixit of the witness, the witness' own words saying the attack was committed with a political motive which it believed, there is not dispute, would fall within the ambit of the Act creating this Committee and the Commission. However, the duty and onus is on the applicant, the witness before the Committee to discharge the test as to whether it was committed with a political motive or not. My instructions are that that is not common cause, the only method of testing as to whether it is in fact so, is by cross-examination. What I am trying to establish Chairperson, is that there was an ambush during the course of which, disproportionate force was used with the intention of robbing the deceased and next the bread delivery van of their vehicles, their firearms and whatever else might be found.
ADV DE JAGER: You in fact put it to him at a stage that the Police at that stage, were let's put it in brackets, legitimate targets for freedom fighters?
MR RICHARD: (Microphone not on) ... all common cause. I have established that in his mind, they were legitimate targets.
ADV DE JAGER: Let me put it to you, I accept that you have mentioned the proportionality aspect and that would be argument and you have questioned and laid a basis for an argument. But I am not sure that you have contested that they had been members of MK, they received training, they targeted this man because he was a Policeman and the only thing that they could rob at that stage from him, as far as I can ascertain from their evidence, would be a firearm. (Microphone not on) ... evidence of that, there is no evidence of anything else he had with him that would contribute to an ordinary robbery for personal gain.
MR RICHARD: Chairperson, I would submit and argue that for a common bandit to rob a firearm from a Policeman, is as consistent as any other robbery. We need only reflect on our current times, Police remain the targets of attack for their firearms, for no political reason at all. What distinguishes this applicant from the modern situation to the situation that prevailed in 1993? Sir, once you had taken the firearm, what would you have done with it?
MR MAESELA: Given the situation at that time sir, there was a lot of violence in and around black townships and we witnessed such violence, violent attacks by Third Force activists and at the same time, Police were also involved in these attacks. First of all, it was imperative on our side, to disarm members of the Police of their firearms, secondly, we had to arm other members of our community for the purposes of self defence. Roundabout 12 000, 13 000 innocent people died in massacres, drive-by shootings as I have mentioned here. The situation was such that we could just not sit down and fold our arms.
MR RICHARD: Do you, or should I put it this way, did you at that time think that the Police had any shortage of firearms and if one was taken away from a particular Policeman, it could not be replaced?
MR MAESELA: It could be replaced but also that to demoralise the Police, they would know that they had people, there were people out there, trained people out there who were also fighting against what they were actually purporting.
MR RICHARD: But then it is also inherent and implicit in your statement of what you have just said, that from your point of view, you would be one firearm up which you certainly did suffer from a shortage of?
MR MAESELA: We would be one firearm up if we had disarmed his service pistol.
MR RICHARD: In other words the firearm had a value to you?
MR MAESELA: Yes, of course.
MR RICHARD: And at that time, how much would a firearm sell for?
MR MAESELA: We wouldn't even contemplate selling firearms.
MR RICHARD: That is not my question.
MR MAESELA: I don't know. I don't know how much it would sell for, I never sold firearms.
MR RICHARD: Would you dispute that it would have a commercial value?
MR MAESELA: I cannot answer that question because at that time I was not even interested in the commercial value of a firearm. The situation was such that the lives of innocent people came first, that is in the first instance what led to us voluntarily sacrificing our lives towards protecting innocent lives and taking the struggle forward.
MR RICHARD: Now, Chairperson, at this stage, I do have a disadvantage, I don't have a copy of the record of the proceedings, but nonetheless I will do what I can without it. During the course of your trial, did you ever mention to the High Court that you were an ANC member and an MK soldier?
MR MAESELA: Our strategic approach together with my legal representatives at that time, was that since I was pleading not guilty to the said crime, making mention of my underground activities, would in a way, influence the outcome of the trial, so I never made mention of my activities.
MR RICHARD: During the course of which year did your trial take place?
MR MAESELA: 1994.
MR RICHARD: Before 27 April 1994 or after 27 April 1994?
MR MAESELA: Before.
MR RICHARD: Now, how long before?
MR MAESELA: I was only sentenced March of 1994.
MR RICHARD: Would you not agree that during the period January, February, March 1994, it was common knowledge that a new government would come into being?
MR MAESELA: Prospects were a new government would come into the ruling, but we cannot say for sure that it would happen.
MR RICHARD: What did you believe at the time?
MR MAESELA: I was in prison sir, you should remember I was still in prison at that time, I was battling to secure my release.
MR RICHARD: Isn't it so that if then, as did happen, the changes did take place, if you had played open cards with the Court and said yes, there was a premeditated attack which I was part and parcel of, but it was political, you would have been in a far better position, a far more understandable ...
MR SHAI: Objection my Honourable Committee, Mr Richard is asking the applicant to give an opinion on what the Judge would have done, and I think it is unfair to the applicant. Nobody knows what would have actually happened to the outcome of the case if he had done that, only the Judge knows.
CHAIRPERSON: Yes. And besides, Mr Richard, the applicant seems to have indicated that in any case, this was a strategic decision which was taken on legal advice at that time, which is not so uncommon, especially in proceedings before us, of this nature. We are often taken aback by the little value that one can place on the proceedings before the Courts, it is just quite shocking sometimes.
MR RICHARD: Chairperson, I am in the fortunate or unfortunate position of also having defended a number of people at that time on highly similar situations. I would lead that point, I really can't draw an inference from his failure to take the Court into his confidence. However, as matters stand now, I believe that I can conclude my cross-examination, but would find it useful to at least have a discussion with someone who might have seen the record, because at the moment, I am trying to conjecture as to what the record might or might not have had which I think is entirely unfair to both the witness and myself. I do not know whether the whereabouts of this record will be located by tomorrow morning, by the clerks in the Attorney General's office. My suggestion and I do not put it on the level of an application, is that the matter stand down until Thursday so that I can spend the morning, tomorrow, at the High Court in Johannesburg, to see what I can find.
CHAIRPERSON: Yes. We have come to the end of the day so we are going to adjourn the proceedings at this stage. We have a fairly tight roll here, we have some other matters which we will have to get to tomorrow, so you know, and arrangements have been made with the legal representatives in those matters to be available tomorrow so that their matters can proceed. Those are matters which won't last for the day, at best it will take a portion of the day tomorrow to deal with. We would certainly not be able to postpone this matter to Thursday, we will have to postpone it until tomorrow, however, in all likelihood you would have some time tomorrow to look into the question of the court record and the other court documentation that you might want to have a look at, but at this stage, you know, I've got to indicate to you that the matter will have to proceed some time tomorrow, not the first thing in the morning though. You know, so there should be some time for you tomorrow to further look into this question of the record.
MR RICHARD: Chairperson, taking into account traffic between here and Johannesburg, would one o'clock be suitable to the Committee? I can make a firm commitment to be here at one and that will allow me between twelve and one, to get here.
CHAIRPERSON: Yes. Can I just hear from Ms Mtanga, we've got the matter where Adv Berger is involved and that one has been arranged to be heard tomorrow, not being aware at that time, of how this matter would be, what turn this matter would be taking. In fact we were confident that this matter would have started much, much earlier today and in fact, would have been close to conclusion. We thought that we would have disposed of it tomorrow, but we are committed to accommodate the other matter tomorrow, would that be correct?
MS MTANGA: Yes Chairperson, and we also have another matter which was postponed from Friday, the Simelane matter, so we've got two matters for tomorrow. We are going to start with Simelane and carry on with Mr Danny Berger's matter which is going to be quite long in my estimation.
CHAIRPERSON: Yes. Thank you Ms Mtanga. Mr Richard, of course we are trying to balance out, we want to accommodate you, we are looking at Mr Shai, we are looking at everybody, but by the looks of things, we are going to be tied up in the morning tomorrow, so it should be in order if you are able to be back at one o'clock as you have indicated.
MR RICHARD: As the Chair pleases.
CHAIRPERSON: Yes. Mr Shai, your matter obviously by the looks of things, are going to proceed for a while, at the very least tomorrow some time, we have accommodated Mr Richard, we were aware of the fact that he had actually gone back this morning to collect these documents that he needs and he has not been able to get it today. You know, in order to be fair to his case as well, we have to allow him a bit of time, we won't be able to start with the matter straight in the morning, as I have indicated to him already, we have some other commitments, so you know, your matter will have to carry on tomorrow in the afternoon, definitely not before one o'clock?
MR SHAI: Are we going to start at one o'clock or two o'clock?
CHAIRPERSON: Probably, it will probably start after lunch, it is going to be a short lunch, we take the lunch adjournment between one o'clock and half past one, so it should be - it wouldn't be before half past one, let me put it that way. One is never sure how these things works, so I am not sure if there is a more convenient arrangement, I am not sure if you are local or whether you have to travel here, what your circumstances are?
MR SHAI: No, I travel from Germiston, but two o'clock will suit me also, because in the morning, I also have some matters to do as well.
CHAIRPERSON: Okay, can we, Mr Richard as well, can we then rather call it two o'clock, we will say we are adjourning the matter until two o'clock tomorrow and we will start with it as soon as we can from two o'clock onwards.
MR RICHARD: I am indebted.
CHAIRPERSON: Yes. All right, we are adjourned.
COMMITTEE ADJOURNS
