MR RICHARD: I ask the second witness, the second applicant, to be sworn.
CHAIRPERSON: Is he also giving his testimony in Sotho?
MR RICHARD: Yes, in Sotho.
TSEPO MAKOLA: (sworn states)
EXAMINATION BY MR RICHARD: Thank you Madame Chair.
Sir, in and during 1990 did you belong to a political party and if so to which?
MR MAKOLA: I was a member of the ANC and again I was a member of the MK.
MR RICHARD: And to which unit did you belong?
MR MAKOLA: Ntchabaleng unit, Chairperson.
MR RICHARD: And who was the commissar of that unit?
MR MAKOLA: It was Mphaga.
MR RICHARD: And is he your co-applicant sitting next to you?
MR MAKOLA: That is correct, Chairperson.
MR RICHARD: Now could you please tell us who Wiseman Mbata was?
MR MAKOLA: According to my knowledge, Wiseman Mbata was the commander of our Ntchabaleng unit in Gangala.
MR RICHARD: And what was his function?
MR MAKOLA: Furthermore he was an information gatherer.
MR RICHARD: Did you know him personally?
MR MAKOLA: That is correct, Chairperson.
MR RICHARD: Did you know - now, there's a person whose house was attacked and that was the act which you apply for amnesty, Mr Boy Skosana. Did you know Mr Boy Skosana as well?
MR MAKOLA: Yes that is correct, Chairperson.
MR RICHARD: What work did he do at the time?
MR MAKOLA: He was in the employ of the KwaNdebele Government.
MR RICHARD: And did you ever have any discussions or meetings with him? Did you ever talk to him?
MR MAKOLA: That is correct, Chairperson.
MR RICHARD: And what were those discussions concerning?
MR MAKOLA: We were talking in public, that is the day when we had a meeting. We had a meeting of the youth league then the leadership when they arrived without the youth outside, outside the hall, when we enquired what was the problem we found out that the hall was locked because Boy Skosana did not unlock the hall and he was not present. We delegated people to look for him and when he arrived he was uncontrollable, his behaviour was undesirable. Then as a leader of the youth I tried to talk to him.
MR RICHARD: And did Mr Skosana make any threats towards you and if so what was the nature of those threats?
MR MAKOLA: He was arrogant, I'd put it clearly, if the Committee allows me, he was arrogant at that particular time, he used to say things to the effect that he would not be afraid of a person of my age. Those of the kinds of threats he used to do and then he said one day we would meet. One of the threats, he came at my place. When he arrived there he found out I was not present, I was at a youth meeting as I had a position in the Youth League. When I returned some members of the youth told me that I should not go home because they saw Boy going to my place together with his friends. I went home. When I arrived I found my sister and she was frightened, then I asked her what is the problem? She told me that Boy Skosana was here and he was angry and he had a firearm on his person and she told me that I should be careful.
MR RICHARD: Now did you report these things to Mr Mbata?
MR MAKOLA: That is correct, Chairperson.
MR RICHARD: Now what was your relationship with your co-applicant, Mr Mphaga?
MR MAKOLA: At that time he was my commander. Everything which I wanted or which I wanted to know I'd go directly to him. We were close friends.
MR RICHARD: And did you discuss the Skosana problem with him?
MR MAKOLA: That is correct, Chairperson, I explained to him that Skosana started this problem.
MR RICHARD: Now sometime later your commander told you you were going to do something. How much later was it after these events?
MR MAKOLA: At the time when Boy Skosana came to that place, even before then, his issue of being uncontrollable, we used to discuss the ...(indistinct) in our underground meetings. At the day when he came to our meeting, after that when I led this issue to my commissar, we went to Mr Mbata and then we discussed about this issue, that this person is going to be dangerous, we should try to control him.
MR RICHARD: Now in June 1990, there was an attack on Mr Skosana's house. When did you first learn that there was going to be an attack?
MR MAKOLA: The attack happened in June 1990, that was the day when I learnt that we were going to attack him.
MR RICHARD: Who told you that you were going to attack him?
MR MAKOLA: It's Wiseman Mbata.
MR RICHARD: Now what did Wiseman Mbata tell you?
MR MAKOLA: Whilst we were discussing about this issue, at that time this Skosana issue, it was a serious issue. He wanted our preparedness or our courage. Wiseman purchased two AK-47s and handgrenades then he gave them to us then he said we should go to Boy Skosana's house then we should shoot there and shake him. We should shake him seriously to show that uMkhonto weSizwe was present.
MR RICHARD: Now what do you mean by shake him?
MR MAKOLA: We should shoot with as small bullets as possible on the walls, on the windows and then we should leave a check that uMkhonto weSizwe was present.
MR RICHARD: Now when you say us, who was us? Was it more than just you?
MR MAKOLA: Myself and Bierman.
MR RICHARD: Now what time did you go to Mr Skosana's house?
MR MAKOLA: I don't remember the exact time but it was at midnight.
MR RICHARD: Now did you and your co-applicant discuss and plan the attack?
MR MAKOLA: May you please repeat your question?
MR RICHARD: Before you went to Mr Skosana's house did you and your co-applicant discuss what you were going to do?
MR MAKOLA: I remember that we discussed about the proposed attack on our way to that place.
MR RICHARD: And what was the decisions that you came to while discussing it?
MR MAKOLA: We decided that when we arrived at Skosana's place I would attack the front portion. Then he would concentrate on the side of Skosana's bedroom.
MR RICHARD: Now what portion of the room did you shoot at?
MR MAKOLA: I shot at the dining room side and the kitchen because the house was L-shaped, I was shooting on the dining room and the kitchen portions.
MR RICHARD: Was the house lit or dark?
MR MAKOLA: It shows that they were asleep at the time.
MR RICHARD: Now when you shot did you shoot up or down or horizontal with the ground?
MR MAKOLA: I was shooting at the windows because the firearm was heavy, it was shooting above just near the roof. It was heavy for me.
MR RICHARD: Did you know whether anyone was inside the kitchen or dining room or the rooms that you were shooting at?
MR MAKOLA: On the dining room and kitchen side there was no sign of any person on that side.
MR RICHARD: Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you Mr Richard. Mr Steenkamp?
CROSS-EXAMINATION BY MR STEENKAMP: Madame Chair, again if you would allow me just one or two submissions on behalf of Mr Skosana to be put to the applicant?
Sir, according to your amnesty application on page 4 I see you're saying that Mr Skosana at one stage was a threat, apparently to yourself and Chairperson, referring to the middle of the page, page 4.
CHAIRPERSON: Yes.
MR STEENKAMP: You're saying that Mr Skosana at one stage was carrying a 9 mm pistol and then he was a threat when he visited your home basically, is that correct? Is that what you're saying?
MR MAKOLA: That is correct, Chairperson.
MR STEENKAMP: Mr Skosana will deny this and he is saying and he said this in your amnesty application, it's a lie and it has never happened since he has never possessed a 9 mm pistol or any firearm whatsoever, do you have any comment on that?
MR MAKOLA: At that time if I remember well, Boy Skosana you would know as to whether he was a police officer or he was just a government employee the way he was behaving. Even that firearm, I did not know as to whether it was licensed or not.
CHAIRPERSON: Did you at any stage see Mr Skosana in possession of a 9 mm?
MR MAKOLA: That is correct, Chairperson.
MR STEENKAMP: Furthermore, he will say that he, according to your application, that he was never a legitimate target since he was never a member of any political organisation, neither was he a threat to yourselves or any political aspirations you might have had at the time. What is your view on that?
MR MAKOLA: The education I received, the person who was behaving like Mr Skosana at that particular time, he was an enemy. He was an enemy.
MR STEENKAMP: And lastly, Mr Skosana will say if needs be that as far as he knows even sitting here today he's not sure what exactly the motive was for the attack on his house or his family and for that purpose he's of the view that you're not giving a full disclosure exactly why you did attack his house and that of his family? What is your view on that?
MR MAKOLA: I would say to him our motive is the one which was already explained. Mr Skosana's behaviour, if you were present you'd be angry with him. He was not respecting any political structures. His comments when he was talking about any leadership of ANC or civic association or youth league, he showed that he was disrespectful to the leadership of that particular time. He was demeaning the leadership of the political organisations therefore we decided that we should do something. That is how I would respond to your statement.
MR STEENKAMP: Thank you Madame Chair, those were the questions.
NO FURTHER QUESTIONS BY MR STEENKAMP
CHAIRPERSON: Thank you Mr Steenkamp. Judge de Jager?
JUDGE DE JAGER: No questions.
NO QUESTIONS BY JUDGE DE JAGER
CHAIRPERSON: Judge Motata?
JUDGE MOTATA: Just probably one.
Did you know how many people lived with Mr Skosana in the house, Mr Makola?
MR MAKOLA: That is correct.
JUDGE MOTATA: How many?
MR MAKOLA: If I remember well it was Boy Skosana, his mother, his other brother or his wife to his other brother and the two nephews or niece.
JUDGE MOTATA: How many rooms, since you said this house was L-shaped, it consisted of how many rooms if you do know. Do you know?
MR MAKOLA: 8 rooms if I'm correct but I'm not quite sure but it was approximately an 8 roomed house.
JUDGE MOTATA: When your commander concentrated on the bedroom were you absolutely certain which bedroom Mr Skosana slept in?
MR MAKOLA: I was not sure about that Chairperson.
JUDGE MOTATA: Thank you Madame Chair, I've got not further questions.
CHAIRPERSON: Thank you Judge Motata. Mr Richard, do you have any re-examination pursuant to questions asked by Mr Steenkamp and from Judge Motata?
RE-EXAMINATION BY MR RICHARD: The question I would like to put onto the record doesn't arise from the cross-examination but it is very simply, is Mr Wiseman Mbata dead or alive? With your permission I'd like to put that question?
CHAIRPERSON: Yes.
MR RICHARD: May I? Sorry Sir, is Mr Mbata, that's Wiseman, available to give evidence? Is he alive or dead?
MR MAKOLA: He has since died.
MR RICHARD: Thank you, no further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Yes, that's contained on page 18 of his statement which is forming part of the bundle.
MR RICHARD: No further questions and that is the applicant's case.
CHAIRPERSON: Yes. Mr Steenkamp, do you intend to lead any evidence in opposition?
MR STEENKAMP: Madame Chair, I do not intend leading any opposition and if I may allow just on the question of Judge Motata, it was negligent on my side not to mention it but there were seven people in the house, that's my instructions and secondly I can confirm that Mr Mbata's actually dead. He died recently if I'm not mistaken. Thank you Madame Chair but I'm not going to lead any evidence, that will be the case for the victims.
CHAIRPERSON: Is it known by Mr Skosana that Mr Wiseman Mbata was an MK member?
MR STEENKAMP: If you could just indulge me a minute Madame Chair? Madame Chair, Mr Skosana's views that he was not aware of the status of Mr Wiseman Mbata, his view is that as far as he was known he was a confused person, referring to him respectfully. In other words, saying that he can't confirm or say whether or not he was a member of any political organisation.
CHAIRPERSON: Yes.
MR STEENKAMP: Thank you Madame Chair.
CHAIRPERSON: Mr Richard, this brings us now to the argument stage. Are you in a position to argue?
MR RICHARD: Yes Chair, I will proceed to argue.
CHAIRPERSON: Yes.
MR RICHARD IN ARGUMENT: We'll start with the facts that are common cause. The two applicants were members of a recognised political organisation, the ANC, and were also members of it's armed wing, MK. At that time during 1990 it is also common cause that government employees, such as Mr Skosana, were seen as to quote Sithsaba, "government stooges, sell outs, collaborators with the then regime". I do not believe it's necessary to bring the numerous volumes of Sithsaba where that sort of rhetoric was propagated from 1985 right through to the early '90s.
Now with that perception alone for the command structure of Wiseman Mbata, those above the two applicants, it would be permissible to contemplate an act of aggression on the residents, officer's home, person of Mr Skosana. While it is so that the individual victim naturally has difficulty and understanding why they might then have been a victim or understanding in hindsight why they came to be a victim. The individual perception and that is all the applicants need to establish, is that they were legitimate targets and their attack would further the interests of the ANC.
We have heard in evidence, very briefly, at the time the local political issue was the incorporation of the area in which the second witness, the first applicant resided, into KwaNdebele, it was - and I don't intend to amplify it by calling much evidence, a hockey dispute at issue which was supported by the then government and opposed by the ANC as an extension of the homelands and therefore apartheid policies. So that means whether the political motive was to further the interests of the ANC or further and in addition to further the interests of the ANC by opposing the incorporation of the area into KwaNdebele as was then intended by the homelands strategy, that in my submission would be in legitimate political objective for the act to have been committed with.
The question then that I must apply my mind to further is proportionality. In this particular situation the applicants' first witness concedes live ammunition was used. it was foreseen that injuries, even death, might ensue, but it did not. In reality, taking into account the description of the attack and the amount of ammunition used the result is consistent with what was said by the applicants. The intention was not to kill or injure anyone. No one was killed or injured. However, as is want in the time of war, an armed attack did take place.
Now the next one is full disclosure. It's difficult to fault what the applicants have said on the basis that they should have said more. In the nature of things the first witness, the second applicant, acted on the information and advice received by him from the local information officer, his friend and comrade, the first applicant. There was nothing suspicious about the information about Mr Skosana being a member of the State's apparatus. There was nothing to make him doubt that the man had not been co-operative in allowing the ANC freedom of political activity.
Then, there's further no evidence at all to contradict that in this particular instance, with regard to both applicants, the commanding structures of their party and organisation above them had sanctioned, cleared, applied their minds specifically to the attack and given the authority and go ahead for it to have to take place. In these circumstances, Chairperson and Committee, I believe that the applicants had established that an act which constitutes an offence or delict, was committed with a political objective furthering the interests of the ANC which was proportionate and in accordance with the circumstances prevailing and to fault them in their attack would be fatuous and to exercise an armchair judgement in retrospect. I submit that they have made out a case for their amnesty and it should be granted. As the Committee pleases.
CHAIRPERSON: Yes. We are aware that Mr Mphaga applied for indemnity and was as a result of that application granted same in respect of this particular incident. We however are not aware of Mr Makola made any application for indemnity at the time when Mr Mphaga did.
MR RICHARD: I am correct in saying both were given indemnity.
CHAIRPERSON: Both were given indemnity?
MR RICHARD: Yes.
CHAIRPERSON: Thank you.
MR RICHARD: Not for amnesty, indemnity.
CHAIRPERSON: Yes, we are aware. In respect of the same incident nevertheless?
MR RICHARD: The attack using firearms.
CHAIRPERSON: Yes, on Mr Boy Skosana's house.
NO FURTHER ARGUMENT BY MR RICHARD
CHAIRPERSON: Mr Steenkamp?
MR STEENKAMP IN ARGUMENT: Thank you Madame Chair.
Madame Chair, the view of the Skosana family regarding the position of the amnesty application of both applicants basically rests on three things. It's my information first of all that the Gangala region was actually incorporated into KwaNdebele in 1986 while this incident actually took place in 1990 in opposition to what applicant number two has testified. So the view of the Skosana family, if that was one of the motives, it clearly had to fall away because Gangala at the time was already part and parcel of KwaNdebele.
Secondly, it is also the view of specifically Mr Skosana that the act of both applicants was disproportionate to the political aim or view to be achieved since if he was the aim, there was no reason to attack his house and for that reason his whole family, there was women and children staying in the house and basically destroying his livelihood and his house and his possessions. What he is basically saying that the fact was that, in other words, it was totally disproportionate.
And thirdly, what Mr Skosana's view is, that of the family is that they were never a threat to the community at large, he was a civil servant actually serving the interest of the community as an elected person in the civil government at the time and he fails to understand how he could be seen as a legitimate target even looking at the policies of MK at the time as existed and as far as he is concerned, even looking at the submissions of the ANC itself, he could never have been a legitimate target and in that instance he is specifically feeling that they did not make full disclosure, but he is really, honestly telling the Committee today why he personally and his family were identified as legitimate targets. Those are the submissions Madame Chair, Honourable Committee Members, why the Skosana family feels today to oppose the application of both applicants and it is their view, with respect, I submit on their behalf, that applications of both applicants must be refused and amnesty must be denied.
JUDGE DE JAGER: Mr Steenkamp, have we got any authority to reverse the granting of indemnity?
MR STEENKAMP: Clearly not, Honourable Member, but the question is the effect of indemnity clearly is not clearly stretching as far as that of amnesty. The question of civil liability clearly must stand.
CHAIRPERSON: No, it's included.
JUDGE DE JAGER: No, it's included.
CHAIRPERSON: All criminal and civil liability are included under the indemnity act.
MR STEENKAMP: I understand that clearly but it's the view of Mr Skosana that at the time he was not part and parcel when the applications for indemnity was heard. In that view what he is basically saying, although indemnity was granted, surely this Committee can't just be held hostage by a previous tribunal's decision of the Indemnity Board while only dealing with specific facts and not the whole political spectrum as it existed at the time. That is basically his view but the question is I agree, wholeheartedly, but he still feels that that is the position.
CHAIRPERSON: But the decision of the tribunal stands, how can we not have regard to that decision?
MR STEENKAMP: Surely ma'am ...(intervention)
CHAIRPERSON: Obviously both Mr Mphaga and Mr Makola can never be prosecuted?
MR STEENKAMP: Madame Chair, the documents as it stands, as it contains in the bundle or the documents as been received, it's quite, with respect, Mr Skosana's view, it is definitely not quite clear on which charges are for what specifically both applicants got amnesty. He was not in a position to deny the fact that they got indemnity but for what specific incidents. It was only for this attack, was it for attempted murder, was it for possession of firearms, was it for anything flowing from that or not? That is the reason why they are rejecting the application.
JUDGE DE JAGER: We've got Mr Skosana's statement before us and we're indebted to him for giving his statement and that would give us a better prospective as far as the background is concerned.
MR STEENKAMP: Thank you Madame Chair.
NO FURTHER ARGUMENT BY MR STEENKAMP
CHAIRPERSON: Mr Richard, what is your response pertinently to the submission made on behalf of Mr Skosana that Gangala had already been incorporated into KwaNdebele by 1990?
MR RICHARD IN REPLY: With regard to the opposition to the homeland policy and the forced creation of homelands or incorporation of areas into homelands, I don't think it's relevant as to when which particular act took place. What is relevant is that at all times the ANC was flatly opposed to the balkanisation of South Africa and it's subdivision into homelands and the incorporation of various pieces of territory into various homelands. That opposition continued despite the creation of a homeland or the incorporation of a particular area in a homeland. So with respect to my learned colleague, I don't understand the point. If I am mistaken as to when the area was incorporated or to be incorporated into KwaNdebele, the issue remains the same. It was an act which was vehemently and passionately opposed and that opposition continued at all relevant times.
JUDGE DE JAGER: Perhaps you could help me to understand his point? The evidence was that in Gangala some parties propagated the incorporation and they were opposed to that and that was why they attacked but it was already a fait accompli at that stage.
MR RICHARD: But with respect, Member, if two people have opposing political views about something, the fact that a fact has become a fait accompli doesn't resolve the argument? In other words the fact that the area might have been incorporated into KwaNdebele at a previous time wouldn't resolve the argument or the feelings or the passions surrounding the issue.
The other point I would like to move on to, is that in sub-section 4 of section 20 of the Act, reference is made that in applying the criteria contemplated in sub-section 3 of section 20, that's the section which legislates the motivation of the person, the context, the legal and factual nature of the objective, etc., the Committee shall also take into account the criteria applied in the acts repealed by section 48. Section 48 ...(intervention)
JUDGE DE JAGER: It repeals the Indemnity Act.
MR RICHARD: Repealed the Indemnity Act.
JUDGE DE JAGER: So we can take cognisance of that fact and the criteria applied there.
MR RICHARD: But in sub-section 2 of section 48 continues to ...(intervention)
CHAIRPERSON: Your microphone, Mr Richard.
MR RICHARD: That any indemnity granted under the provisions of the Indemnity Act 1990, the Indemnity Amendment Act 1992 and then the Further Indemnity Act of 1992 shall remain in course notwithstanding the repeal of those acts so from those references it is apparent that first the Norgaard Principles which were certainly part of the Further Indemnity Act which factors were then legislated into section 20 and the wording of sub-section 4 of section 20, is that this Committee indeed must take into account all those factors and that it is indeed highly relevant to the Committee what the previous Indemnity Boards held. May it please, Chair, I'll leave the point.
CHAIRPERSON: Yes.
MR RICHARD: I'll leave it rest.
CHAIRPERSON: Yes.
MR RICHARD: Thank you.
CHAIRPERSON: In respect of which acts, omissions or offences
is Mr Mphaga the first applicant seeking amnesty?
MR RICHARD: I have taken the attitude that in an amnesty application, while obviously it is desirable to be precise and accurate in the formulation. However, to take an overtechnical point of view would be highly artificial. Amnesty applications were largely prepared without legal assistance ...(intervention)
JUDGE DE JAGER: No, we're asking you what are you asking for?
MR RICHARD: What I am saying is that the correct approach would be is that the acts disclosed constitute attempted murder ...(intervention)
CHAIRPERSON: Yes, just give us the acts for which you want us to consider the amnesty applications?
MR RICHARD: If there were nine people in the house then nine potential charges of attempted murder.
JUDGE DE JAGER: Seven.
MR RICHARD: Seven. There is certainly possession of firearms, possession of ammunition, malicious damage to property. I believe that's the list.
CHAIRPERSON: Yes and these would apply for both Mr Mphaga and Mr Makola?
MR RICHARD: Correct.
CHAIRPERSON: Thank you.
MR RICHARD: As the Chair pleases.
NO FURTHER ARGUMENT BY MR RICHARD
CHAIRPERSON: We are going to reserve our judgement in respect of the two applications and this brings us to the close of our proceedings for the day. Both the applicant and the victims will be informed in due course of the decision that we'll pronounce hopefully in less than a month from today.
MR RICHARD: Thank you Chair.
CHAIRPERSON: We will be communicating with the applicants through you, Mr Richard. As they are not in custody and will communicate with Mr Skosana directly as we are in possession of his postal address. We thank you Mr Skosana for attending our
hearing and being party to the process of reconciliation which this process is aimed at primarily achieving. We don't know whether any endeavours have been made by both Mr Richard and Mr Steenkamp to facilitate mediatory talks between the two applicants and Mr Skosana. If no such endeavours have been made we will recommend that every attempt be made to secure such talks. Thank you very much for the assistance you've rendered to the Committee.
This brings us to the close of the proceedings for the day. We will adjourn until tomorrow morning at 9.30.
MR STEENKAMP: Thank you Madame Chair.
HEARING ADJOURNS
