CHAIRPERSON: I am sorry that we have kept you waiting all here for so long, unfortunately that is going to continue because there are various difficulties that have arisen which I will explain now and I will ask your assistance, please, from the members of the public, the members of the press, the members of the television studios.
The problem - one of our problems is that it has been impossible to make contact with the applicants or the victims and I will deal with each of them as I go through the list. The first case set down on our list is Mr T M Mfalapitsa who is legally represented and who the victim's whereabouts are unknown. He is represented by Mr Julian Knight, the applicant. All the other applicants are to be represented by Mr Brian Koopedi and the victims by Advocate Nana Makhubele. The next applicant is S M Mandlazi. Unfortunately his whereabouts are unknown so we has not been possible as yet to notify him as his application is being heard. The victim in that case is Mr Mabaso. It has been impossible to locate the victim to inform him that the application in which he has an interest is being heard.
The next case, number three, is Mr K N Matlaletsa. In that case his whereabouts are unknown and it has been impossible to locate the victim who only known name is Jovan.
The next case is Mr T J Sphambo. He is present but unfortunately the victims will only be available next week but arrangements will no doubt be made to see if we can speed that up.
The next case is that of Mr M L Ndaba and C M M Dieta. They have been present this morning, they are temporarily absent and that matter will proceed. The victim is also available, Mr Goodluck Mpungose.
The next matter, S M Mangena, once again his where-abouts are unknown and in that case also it has been impossible to locate the victim, Edward Dlamini.
In the next case it is the application of Mr G N Twala and Mr M M Ramphomane. Mr Twala is present but at the present time Mr Ramphomane is not present and we have been unable to locate the victim, Monde Chief Mpateni.
The next case, Mr K M Mokoape is overseas at the present time and it seems that - it is hoped that his matter will be proceeded with next week. The victim in that case, Dumisani Khosa, has apparently been located.
The next case, Mr O S Khumalo, his whereabouts are unknown.
The next case, Mr M A Damoyi, his whereabouts are also unknown. In this case it has been impossible to locate the victims, Zaba Maledza or Edward Masuku.
The next case, Mr M E Noosi, he is present, the matter will proceed. The victims have been notified, one of them will not be attending and will not be opposing but wishes the truth to emerge and the other one is represented.
The next case, Mr Rabotapi, his whereabouts are unknown although in that case it appears the victim has been located.
The next case, I'm afraid I'm uncertain as to precisely what the position is, that is number 17, Motlatsi and Saliwa.
MS MAKHUBELE: Chairperson, in that matter, the victim, Mrs Nomvula Maqutu is present but she has indicated that she needs her own legal representative and she would request time that she be allowed time to organise that.
CHAIRPERSON: And are the applicants represented and are they present?
MR MAPOMA: The applicants are represented by Mr Koopedi but he said the last time I spoke to him that he is still locating these applicants.
CHAIRPERSON: This is Motlatsi and Saliwa? He has not located them as yet?
MR KOOPEDI: Chairperson, I may indicate that there have been developments since. I spoke to Mr Mapoma and I've spoken to the two gentlemen, Motlatsi and Saliwa. They will be able to come tomorrow, Chairperson.
CHAIRPERSON: Right, so we don't need assistance.
JUDGE DE JAGER: Are the names in alphabetical, Motlatsi and Saliwa are they - what are they?
CHAIRPERSON: Motlatsi and Saliwa.
JUDGE DE JAGER: Saliwa is under G?
CHAIRPERSON: Yes.
JUDGE DE JAGER: And his co-applicants? Dlamini and Kakue?
CHAIRPERSON: Well Dlamini we're going to deal with later. He is withdrawing.
JUDGE DE JAGER: Oh.
CHAIRPERSON: Then L L Magajana, his whereabouts are also unknown. It appears that arrangements are being made to contact the victim.
And finally, Mr H T Khoabane whose whereabouts are unknown. Again in that case arrangements are being made to contact the victim Sipho Bongani Ngema.
That concludes the matters where we ask your assistance. Please if any of you here can to publicise the fact we are looking for these applicants and victims and inform them that they should immediately make their presence known to Mr Brian Koopedi, telephone number 012-3262529.
MR KOOPEDI: Chairperson, I see a name of R Petersen on the second list. I didn't hear anything being mentioned that he is going to withdraw if I may assist you?
CHAIRPERSON: We haven't done the withdrawals yet.
MR KOOPEDI: Oh, thank you.
CHAIRPERSON: I now come to other applications which were set down on our list but I am informed by our legal representative that the applicant in those matters are withdrawing their applications. The first of these is Mr W N Dlamini. Do you confirm that?
MR KOOPEDI: I confirm that Chairperson, Mr Wandele Dlamini withdraws his application in this matter and also in the matter ...(intervention)
CHAIRPERSON: Matter number?
MR KOOPEDI: 17, 18.
CHAIRPERSON: 17?
MR KOOPEDI: Yes.
CHAIRPERSON: Very well, that application is withdrawn from the roll.
JUDGE DE JAGER: Could you kindly give the alphabetic numbers because on our index it's alphabetical and I don't know which one is number 17 or whatever it may be?
MR KOOPEDI: Chairperson, I do not have a bundle similar to yours, I cannot be of assistance.
JUDGE DE JAGER: Well perhaps the Evidence Leader could assist us because nobody knows where to find anything.
MR MAPOMA: You can use mine. That is number G Chairperson.
JUDGE DE JAGER: Yes but there's another one too?
MR MAPOMA: Yes we'll deal with it when it comes.
JUDGE DE JAGER: Okay. So he has now withdrawn?
MR KOOPEDI: He has actually applied for two incidences so perhaps why there's a confusion but he is withdrawing on both incidences.
JUDGE DE JAGER: Both?
MR KOOPEDI: Yes.
CHAIRPERSON: The next one is Mr I Tsimane.
MR KOOPEDI: Chairperson, Mr Tsimane is present and I do confirm that he has withdrawn his application.
MR MAPOMA: That is M, Chairperson.
JUDGE DE JAGER: M1.
CHAIRPERSON: Very well, this application is withdrawn from the roll. We have already withdrawn the other application by Mr Dlamini. I understand that the applications of Mr Motlatsi and Saliwa will proceed?
MR KOOPEDI: That is indeed so, Chairperson, and they'll only be available tomorrow.
CHAIRPERSON: Right. We now come to the application of Mr B M Mavuso.
MR MAPOMA: That is number O on the paginated bundle.
JUDGE DE JAGER: Thank you.
CHAIRPERSON: Is that application also withdrawn?
MR MAPOMA: I confirm Chairperson that that application is also being withdrawn.
CHAIRPERSON: Very well, that application is withdrawn from the roll.
Mr R Petersen?
MR MAPOMA: That's Q on your list.
CHAIRPERSON: And is that also withdrawn.
MR MAPOMA: The matter has also been withdrawn.
CHAIRPERSON: Right, we make that order. Does that conclude all the applications that are withdrawn?
MR KOOPEDI: That is indeed so, Chairperson.
CHAIRPERSON: Right, thank you. Now we don't know where the two people are who were expected to be present and heard today and the victims' lawyer has come here specially to make herself available for that matter. What should be do in the meantime?
MR KOOPEDI: They are here Chairperson and if it would be convenient to take a tea break now, we are ready to resume.
CHAIRPERSON: Are they here?
MR KOOPEDI: Yes they have arrived, yes.
CHAIRPERSON: They've come back? Very well, we'll take a short adjournment now and then - we've taken the tea break already, it's now 12 o'clock.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Right, we are ready to start, I gather, with what matter?
MR MAPOMA: Matter number 5. Matter number E on the paginated bundle, Chairperson. The applicants are M L Ndaba and C M M Dieta.
CHAIRPERSON: Right, I have already mentioned to our Leader of Evidence and I would like to mention again publicly that we consider it of great importance that implicated parties should be given notice that they have been implicated and of the manner in which they've been implicated and the time and date of the hearing in which evidence involving them will be led. I have been informed that that has been done and as for example in the present application, mention is made of Mr Jacob Zuma, Mr Joe Nhlanhla and Mr Mapamolo and I take it they are aware of the fact, that there are others mentioned as having taken part in assaults, Williams, Huna and Graham and I trust that they have all been notified of the hearing. Is that so?
MR KOOPEDI: Yes Chairperson, they have been notified.
CHAIRPERSON: Sorry, I have forgotten the formula which we have been asked to apply by those recording the hearings. The Committee consists of a Panel of three, myself Judge Andrew Wilson and Chris de Jager and Mr Sibanyoni and I would ask them please to speak so their voice can be recorded for the benefit of the transcribers.
JUDGE DE JAGER: Chris de Jager.
MR SIBANYONI: My name is J B Sibanyoni, a member of the Amnesty Committee.
CHAIRPERSON: Could the applicants' attorney please put himself on record?
MR KOOPEDI: My name is Brian Koopedi, I appear on behalf of the applicants, Chairperson.
CHAIRPERSON: The victims
MS MAKHUBELE: Advocate Nana Makubele, Pretoria Bar on behalf of the victims, Mr Mpungose.
MR MAPOMA: I'm Zuko Mapoma, the Leader of Evidence for the Amnesty Committee. Thank you Chairperson.
CHAIRPERSON: Thank you, would you now lead your evidence?
MR KOOPEDI: The applicant that we will be calling first is Mr Mzwandile Ndaba. He is here before you ready to be sworn in or to affirm and the applicant will testify in English.
JUDGE DE JAGER: Mr Koopedi, could you kindly tell me for what is he applying because there's no offence stated in his application?
MR KOOPEDI: Paragraph 9(a) of his application.
JUDGE DE JAGER: Yes, what is that?
MR KOOPEDI: He says he participated in the debriefing of Goodluck Mpungose who later alleged to have been assaulted before the Matsonyuane Commission. In addition to this, Chairperson, a statement was done by him and transmitted to the evidence analyst and in that statement I believe he amplifies that, Chairperson.
JUDGE DE JAGER: Is that a statement on page 74?
MR KOOPEDI: As I've indicated previously, Chairperson, I was not afforded the courtesy of a bundle so I do not have a bundle that is similar to yours and I will not be able to confirm any pages. I only have a file that has application forms but I am able to proceed, Chairperson and ...(intervention)
CHAIRPERSON: Well, are you able to proceed? There are numerous documents that have been put before us in this bundle including transcripts from reports and matters of that nature and I must say it surprises me to be told now that you have not been afforded an opportunity of seeing this including statements allegedly made by your own clients?
MR KOOPEDI: What I was saying is that since I do not have a bundle I am unable to point to pages as paginated in your bundle, Chairperson.
CHAIRPERSON: Well do you have the statement that you say he made?
MR KOOPEDI: Yes I do, I prepared that statement. I sent it over to the evidence analyst.
CHAIRPERSON: Well the copy I have is unsigned?
MR KOOPEDI: That is indeed so.
CHAIRPERSON: Well it doesn't appear to be a statement made by him?
MR KOOPEDI: Well I may explain, Chairperson, that these statements were prepared and then typed but because there were time constraints and that hearings should begin quickly and that where we have statements we have to send them over so that victims could be traced. The agreement was that the statement will be sent as typed statements and the applicants will, during
the course of the hearing, confirm that these are their statements.
CHAIRPERSON: Well there he says
Mr Mpungose was called to Lusaka under the pretence that Comrade Jacob Zuma wanted to see him. When he got to Lusaka he was arrested by my unit and was interrogated. The interrogation included physical assault. Mr Mpungose confessed and implicated Mr Mbata in Natal."
Does it say that he took any part in the assault?
MR KOOPEDI: Well I don't - I believe it does because he doesn't say "I didn't take part in the assault."
CHAIRPERSON: And this is one of the applications where the application itself has not been attested to on oath?
MR KOOPEDI: That is indeed so, Chairperson, and the applicant here has read the application again and has told me that he confirms and understands what he has written here.
MZWANDILE L NDABA: (sworn states)
JUDGE DE JAGER: Mr Ndaba, you've completed this form in your own handwriting?
MR NDABA: Yes.
JUDGE DE JAGER: Did you see at the end of the form that it should be sworn and attested to?
MR NDABA: Yes.
JUDGE DE JAGER: Why didn't you do so?
MR NDABA: Actually, what happened is that when we applied for amnesty at the ANC Headquarters in Shell House we all did that and the people who were responsible for attaching the Commissioner of Oaths signatures, I think it's their problem because they were supposed to have taken this to our legal department.
JUDGE DE JAGER: So an oath cannot be taken if yourself is not present there, it should be taken in your presence, you should sign it before of Commissioner of Oaths and you should swear before him. You can't sign it and send it by post for somebody to sign in the back room there. Isn't that the procedure for taking an oath?
MR NDABA: I believe so.
JUDGE DE JAGER: Now why didn't you do it that way? Do you confirm what you've written here is the truth, the whole truth and nothing but the truth?
MR NDABA: Yes.
CHAIRPERSON: When did you fill this form in?
MR NDABA: It must have been I think in 1994 or 1995, somewhere around there. 1995.
JUDGE DE JAGER: No, I would say it was 1994 for sure because then the Act didn't even exist. In 1995 the Commission was only established in December 1995 so it couldn't have been 1995 because the first applications came in early 1996. So it must have been 1996 or 1997 or 1998, I don't know.
MR NDABA: Yes but then if I remember properly it must have been immediately. It must have been 1995 or 1996. 1996.
JUDGE DE JAGER: Well according to the numbering of the application it was only received in 1997 because it's number 5100/97?
MR NDABA: No, I think it was - because this form was filled, it must have been because we had not yet amalgamated and it must have been in 1995 I think, before amalgamation before we started working within government. It must have been in 1995, late 1995, I think so.
JUDGE DE JAGER: You see the trouble is a form should be completed between two certain dates otherwise it's not an application.
MR NDABA: So, Sir, do you want to suggest that I have not applied?
JUDGE DE JAGER: We don't know whether the application is in order because you say it's in 1995 and then in order to be an application it must have been after the 12th December 1995 and then these forms didn't exist because we've only printed these forms early 1996.
MR NDABA: Anyway, I have been called here to come and ask for amnesty here, I'm here to do that and I'm ready to do that verbally here.
JUDGE DE JAGER: The Act prescribes that your application should be on the prescribed form and it should be attested to. We've already allowed you now to attest it.
MR NDABA: Oh, okay.
JUDGE DE JAGER: But we don't know what was the date when it was completed and whether it was timeously received and whether it falls within the period that the Act prescribes, that's our problem because you didn't put any date on your application.
MR SIBANYONI: May I just ask one question?
Mr Ndaba, I notice there is a stamp from the TRC, 10th May 1997. Maybe to clear this up, after completing the form, what was the procedure. Did you submit it yourself to the TRC?
MR NDABA: Now we had people dealing directly with the TRC so what this implies is that this form after having filled it, it was taken to the TRC Commission Investigative Unit and it was received on this date. It was meaning that it was after applying for it.
MR SIBANYONI: So you people applied as a group?
MR NDABA: Yes.
MR SIBANYONI: Your forms were submitted to the TRC on your behalf?
MR NDABA: Yes.
MR SIBANYONI: Thank you.
EXAMINATION BY MR KOOPEDI: I'm not sure whether I can proceed, Chairperson? Thank you.
Mr Ndaba, I'm showing to you your application, the A form, which is titled AM 5100/97. Chairperson, I am unable to direct you to the page but that is his application form.
MR MAPOMA: Page 64.
MR KOOPEDI: It's page 64, Chairperson. And I am also showing you the third page of this application form which will be, I believe, page 66 where there is a signature. Would you confirm that this is your application form and that you signed that?
MR NDABA: Yes.
MR KOOPEDI: Now is it correct that you are appearing here in a matter which involves Mr Goodluck Mpungose who was detained and tortured?
MR NDABA: Yes.
MR KOOPEDI: Now when this happened can you recall when was it?
MR NDABA: It was in 1987.
MR KOOPEDI: At this stage, were you a member of any political organisation?
MR NDABA: Yes, I was a member of the ANC.
MR KOOPEDI: And what were you doing for the ANC at that stage?
MR NDABA: I was working with the counter-intelligence unit of the ANC security department.
MR KOOPEDI: Where were you based?
MR NDABA: I was based in Lusaka.
MR KOOPEDI: Who else was working with you? Or to make it easy, your co-applicant, was he also working with you?
MR NDABA: Yes.
MR KOOPEDI: Okay, now would you briefly tell this Honourable Committee what happened, how you became involved with Mr Mpungose?
MR NDABA: Actually, our unit got some instructions from our supervisor that we had to debrief a certain Mr Mpungose who was working with the internal structures of the United Democratic Front and MK units inside the country, if I recall well, in Natal. Mr Mpungose had been called by the PMC, political military council, under the pretext that he was called by Comrade Jacob Zuma to get some briefings in Lusaka.
Our unit got some information that Mr Mpungose had been involved in the arrest of four MK cadres inside the country, in Natal. So our task was to debrief him because it was our task to protect the ANC against infiltration by the South African Regime. So we received Mr Mpungose in Lusaka and we debriefed him.
JUDGE DE JAGER: You'll have to give us full details please. "We received Mr Mpungose" - who delivered him to you? How did he come there? What do you know personally about him? Did they give him to you or did they give him to your leader of the command. To whom was he handed over?
MR NDABA: Yes, I think you know, I talking here if you are not here you'll have to ask me questions because I'm talking now and if you ask questions.
The procedure was that in Lusaka we had a structure, a counter-intelligence structure. If we have information about infiltrators and enemy agents from the PAC or from whatever structure of the ANC, we would be informed and they would go and collect that person, that particular suspect from whatever structure ...(intervention)
JUDGE DE JAGER: Yes okay, I understand that but you're talking about "we would be informed and we would ..." who informed you and who went to well, arrest this person or whatever happened?
MR NDABA: I was personally involved in his arrest but I wouldn't recall because, I mean, there was no specific person we were working with, say for instance in the PMC there were a number of people, so in this case I wouldn't recall the name of this person who specifically informed me and my colleagues. I can't remember but I remember that he was from the PMC.
CHAIRPERSON: A moment ago you said "we got instructions from our supervisors"?
MR NDABA: Yes.
CHAIRPERSON: Who were they?
MR NDABA: You mean now you want names?
CHAIRPERSON: Yes.
MR NDABA: You mean the immediate supervisors or - finally John Nhlanhla because the ...(intervention)
CHAIRPERSON: Mr Ndaba, you used the word "supervisors", I want to know who you were talking about when you said "we got instructions from our supervisors"?
MR NDABA: Oh, the person who was my immediate at that stage was a comrade by the name of Tim Williams. He was the head of the unit.
CHAIRPERSON: Tim Williams?
MR NDABA: Yes.
CHAIRPERSON: Alright?
MR KOOPEDI: Proceed.
MR NDABA: Oh. Then we debriefed Mr Mpungose and ...(intervention)
JUDGE DE JAGER: I've asked you who went to arrest him and where did you get him?
MR NDABA: It was myself, Mr Deeda and another guy, I don't know his real name but I just know his MK name is Boney-M.
After arresting Mr Mpungose we took him to a house in Hammarsdale in Lusaka. This was a counter-intelligence structure. We took him there and debriefed him. We searched him and we found, amongst other things, the registration numbers of the car of Mr John Nhlanhla. We found registration numbers of Comrade Joe Jeli. We found a map from where he was staying. He had drawn a map - we called that house PMC where he was staying in Kabwata. He drew a map from Kabwata to the clinic in Hammarsdale. We found a membership card of the IFP. We found - I can't remember but he had coded some other names there which was decoded and he had coded and finally managed to code that thing. I'm not clear but I can't remember what, which linked him to the South African regime, apart from the information we had from him.
So we started debriefing Mr Mpungose and we managed to make him confess. I will just say, I will just record his confession that he was being handled by a certain Captain Botha. He was notorious because it was not the first case which this Captain Botha had been sending infiltrators into the ANC. We knew that Botha and that he was responsible for infiltrating people into the ANC and he had been responsible, he confessed he had been responsible for the arrest of some MK cadres here in the country. He was also involved in the production of home made weapons, if I remember well. He was also involved in fuelling conflict, conflict in faction fights in this church, the Shamba Church. He was also involved in fuelling violence, supplying people with home made weapons.
He confessed and then later on what made us to assault him, he would retract the confession and then we would start all over again and he confesses again and then he was just playing with us and we ended up assaulting him as a last resort.
After assault he finally confessed and I was the one who took him to Angola where I handed him over to the people, the security department, the people who were responsible from Camp 32 where he was taken. I left him there. Well, he was out of my hands.
MR KOOPEDI: Now, Mr Ndaba, this assault, when the physical assault took place were you present?
MR NDABA: Yes.
MR KOOPEDI: Did you partake in the assault?
MR NDABA: Yes.
MR KOOPEDI: How was he assaulted and particularly by you? What did you do to him?
MR NDABA: The assault that we used to do, we would place a person - he would sit down and we would take this knopkierie and assault him underneath his feet until he confesses again.
MR KOOPEDI: Until he confesses? Was the intention to get him to confess?
MR NDABA: No the intention was - yes, to - anyway the assault was, like I said, it was a last resort because we would initially sit with him and try to show him how beneficial is it to confess to admit to whatever he has done and so on. But as we continued with him he would retract his confession and start all over again and say, no, he was lying here. I can't remember exactly, but finally we ended up assaulting him because he was just playing with us, you know?
MR KOOPEDI: So what I really need to understand is whether this last resort, was it resorted to because you needed to have a confession from him?
MR NDABA: Yes.
MR KOOPEDI: Okay. Now when after he had confessed, what type of a confession did you have. Did you have a written confession?
MR NDABA: Yes, if I remember well, you know, his confession I think it was a thick document like this.
MR KOOPEDI: Is it correct that this confession was produced during a previous hearing, not of this Committee but in the Matsonyuane Commission?
MR NDABA: Yes.
MR KOOPEDI: Now after taking him to Angola, did you have anything to do with this matter?
MR NDABA: Yes, what I would do, I would introduce the other comrades to the case and then immediately as soon as they understand the case, I would just withdraw and go back to Lusaka.
MR KOOPEDI: Since you were based in Lusaka?
MR NDABA: Yes.
MR KOOPEDI: Is there anything you want to add on your role on the debriefing, assault and detention of Mr Mpungose?
MR NDABA: No, there's nothing I want to add except that the assault came as a last resort, like I'm saying it was not ANC policy to begin by assaulting people.
CHAIRPERSON: It was not ANC policy?
MR KOOPEDI: Yes Chairperson.
CHAIRPERSON: And what about on this occasion, what was the ANC reaction to assaulting Mr Mpungose?
MR KOOPEDI: I'm saying it was a last resort. Such cases would happen, the leadership would understand and I would explain why, I mean, a certain particular suspect ended up being assaulted.
CHAIRPERSON: And in this case, did the leadership understand? Was anything said?
MR NDABA: Yes, I mean for the fact that they understood and nothing happened thereafter.
CHAIRPERSON: Who understood, who was the leadership?
MR NDABA: You know, you must realise that I did not have that contact with John Nhlanhla and the other leaders. I would communicate with them via my supervisor, Tim Williams.
CHAIRPERSON: You see I'm asking you this because in your statement, in your application, you say that these acts were committed with the approval of the ANC? You've confirmed, you've just confirmed the correctness of your statement. Of your application, you said it was correct and you say there it was with the approval of the ANC?
MR NDABA: I said that it was not ANC policy to assault suspects.
CHAIRPERSON: You say in your application at paragraph 11(a) that the acts, omissions or offences were with the approval of the ANC, don't you?
MR NDABA: Maybe what I was implying here is that the debriefing of this particular suspect, the order was received from the leadership of our department.
CHAIRPERSON: And you go onto say that the persons who gave such order or approval were Jacob Zuma and Joe Nhlanhla. Now you haven't said a word about that to us today?
MR NDABA: Can I just explain again? I'm saying the superior leaders of our department who were Jacob Zuma, John Nhlanhla, there was also Dr Siklashe, there was about five of them. Whatever case, we received as an instruction from them, not to assault people, but it would debrief people.
CHAIRPERSON: That's not what you say in your application.
MR NDABA: That's why I'm saying maybe.
CHAIRPERSON: But you told us you filled in this application yourself, you handed it in and that you confirmed the correctness of it all. You confirmed that it was the whole truth, your application. Do you remember telling us that at the end of your evidence? Don't you remember telling us, your counsel asked you if this application of yours was the whole truth and you then swore to it?
MR NDABA: I'm saying here, I don't know whether you understand me, Sir, I am saying John Nhlanhla and Jacob Zuma, they were the leaders of our department and normally when ...(intervention)
CHAIRPERSON: The question you've answered there was the names of the persons who gave such order or approval. Read it, it's in front of you.
MR NDABA: I'm saying, I'm saying maybe it's a question of language here. I'm not a professional English person here, I might have understood this thing in a different way, you know? But I'm saying, what I'm implying is what I'm saying now, I never had direct contact with John Nhlanhla and Jacob Zuma.
MR KOOPEDI: In fact in your testimony did I hear you say that your immediate supervisor was Tim Williams?
MR NDABA: Yes I did say that.
MR KOOPEDI: And did I also hear you say that the leadership and you mentioned the names Jacob Zuma and John Nhlanhla that you did not have direct contact with them?
MR NDABA: Yes I never had.
MR KOOPEDI: Now perhaps to clear this, after coming back from Angola or perhaps even before going to Angola but after reporting to Tim Williams, were you ever reprimanded for having detained, interrogated or even assaulting Mr Mpungose?
MR NDABA: No.
MR KOOPEDI: Did anyone ever tell you that you went out of line on the matter of Mr Mpungose?
MR NDABA: No.
MR KOOPEDI: Now would I be correct then to assume that if you have reported to your superior, your immediate superior, wouldn't you expect to report to other people higher up and you do not receive any reprimand that you would then conclude that the ANC agreed with what you did?
MR NDABA: Yes.
JUDGE DE JAGER: Was Williams present when you assaulted this man?
MR NDABA: No.
JUDGE DE JAGER: He wasn't there. The only people present was yourself, your co-applicant and what's his name?
MR NDABA: Boney-M.
JUDGE DE JAGER: Boney-M?
MR NDABA: Yes.
JUDGE DE JAGER: The others weren't present?
MR NDABA: No.
JUDGE DE JAGER: Did you only assault him on one day or did it continue for a few days or did you repeat it after a few days?
MR NDABA: No, we assaulted him just one day in Lusaka.
CHAIRPERSON: Did you assault him at Chongele Farm if ever?
MR NDABA: Yes it was at Chongele Farm.
JUDGE DE JAGER: Was his feet burnt?
MR NDABA: No.
JUDGE DE JAGER: To whom did you hand him over in Angola?
MR NDABA: Hello?
JUDGE DE JAGER: To whom did you hand him over in Angola?
MR NDABA: I can't remember because you know, let me just explain the procedure here, you know we used to deal with a lot of cases and after debriefing a person, that person was taken to Angola and handed to the structure there in Angola, with his confession on all the documents there. But as to - in this particular case, who received this particular suspect I can't remember.
JUDGE DE JAGER: Who was in charge of the camp in Angola.
MR NDABA: It was Dexter.
JUDGE DE JAGER: Did you speak to Dexter and tell him what this man has done?
MR NDABA: I may have spoken to him, yes.
JUDGE DE JAGER: But you briefed somebody there in order to tell him what this man did and you handed over his confession or didn't you hand over his confession?
MR NDABA: Yes I handed everything.
JUDGE DE JAGER: Yes.
MR NDABA: Yes. Now problem is I can't remember who exactly was there that particular time. I have to start going around and ask people who are they.
JUDGE DE JAGER: How many case reports did you hand over to them, approximately? A hundred?
MR NDABA: No, not a hundred but it's plenty. It's plenty.
JUDGE DE JAGER: Approximately how many?
MR NDABA: Let's say about twenty or so but I can't remember. I don't want to commit myself.
JUDGE DE JAGER: And can you remember on any of those occasions to who you've spoken there/
MR NDABA: There would be people there who would be working in the department that side. There was Dexter, there was Msizwe, there was Sezad, there was George, no know, there's plenty of people there. There were plenty of comrades there.
JUDGE DE JAGER: And that's all their pseudo-names, you've can't remember one?
MR NDABA: I don't know their real names and I won't be able to know their real names.
JUDGE DE JAGER: And you've never met one of them since?
MR NDABA: No, they are around here, yes.
JUDGE DE JAGER: But then you would know their names now, their real names?
MR NDABA: No, no. It depends because I'm not working with them, you know, I don't go out of my way and ask them for their real names, a person's real name.
JUDGE DE JAGER: But you see, you've just told me that they're around here and you see them around here?
MR NDABA: Yes I see them around yes. I mean people, I mean like now, they call me Sphinx, they don't that I'm Leon Ndaba and I don't think they would want to know that I'm Leon Ndaba.
CHAIRPERSON: They call you Sphinx, do they?
MR NDABA: Yes.
CHAIRPERSON: And you also used to be known as Floyd Huna?
MR NDABA: Yes.
MR SIBANYONI: May I just ask one question? People who were debriefed, arrested, debriefed and the like, taken to - like to that farm, did they ever lay complaints to any people in the ANC structures?
MR NDABA: I don't know but what used to happen, Chief, is that you debrief a person, sometimes it was not procedure that we take people to Angola. Sometimes those people they show remorse and you just leave them in Lusaka, they work there. Some of the people, you make them double agents. It depends on the case, you know, the case, what type of a case it is and whether that person is prepared to change, whether you know, it depends on the case itself. But I don't know, there have been people who have complained but I don't know their names, yes.
MR SIBANYONI: Were you ever confronted by your seniors in connection with any person who has laid a complaint against you?
MR NDABA: No except I went to the Matsonyuane Commission regarding this case of Mr Mpungose.
MR SIBANYONI: Mr Mpungose?
MR NDABA: Only this case.
MR SIBANYONI: Thank you, Chairperson.
JUDGE DE JAGER: Did you confess to the Matsonyuane Commission that you've assaulted him?
MR NDABA: Yes.
JUDGE DE JAGER: Why is the report then that you've denied it?
MR NDABA: I didn't deny. What I denied, if I remember well, he said we assaulted him at his back here which I remember - I sure that we didn't assault him at the back. I denied that yes.
JUDGE DE JAGER: No, the commission reports
"As to Mpungose, Huna testified" and you're Huna?
MR NDABA: Yes.
JUDGE DE JAGER: "testified he was with Tim Williams when Mpungose was interrogated but that neither he nor Williams applied any excessive force in conducting the interview."
MR NDABA: No, no. What I'm saying is, he took off his top and showed the commission some marks at the back, at his back here, which thing we never, we never touched his back. We never touched his back, the only thing that we did was to assault him underneath his feet. I don't know why the Matsonyuane Commission put it that way.
CHAIRPERSON: Earlier they said
"Both Tim Williams and Floyd Huna who worked with the counter-intelligence section of the security department denied that they assaulted Mpungose in any way."
MR NDABA: I don't remember that statement.
CHAIRPERSON: Well we propose, because we think it's in the interests of a proper investigation to obtain a copy of this report. It is referred to throughout the documents before us and we think we should get the report as a whole and can then verify whether this is in the report, or whether this - it appears quite clearly that it was. They also refer there to the fact that you were supposed to have been present when he was tortured at the farm, that he was given beatings, his feet were burnt with candles, he was hung from a tree by his feet and beaten on his back and on the bottom of his feet with a fan belt by Huna and Williams.
MR NDABA: At the farm there, what we used to do, I think I know, we would never use candles. We had - there was electricity there and we never used candles and the procedure that if we assault people, assault them with this knopkierie underneath their feet. That one I'm sure of, although it might have been a long time ago but I can remember that.
CHAIRPERSON: Well this would probably be a correct time to take the adjournment. How long do you think you need? I understand food is available on the premises. There's a place down there. Half and hour or more? Three quarters of an hour? Should we say quarter to two?
MR KOOPEDI: Well Chairperson, I'm in your hands.
CHAIRPERSON: Well, I've got to think of you and your client.
MR KOOPEDI: We're very eager to have these matters go on Chairperson. If the Committee would want to proceed and skip lunch?
CHAIRPERSON: Quarter to two, we'll adjourn till quarter to two.
COMMITTEE ADJOURNS
ON RESUMPTION
MR KOOPEDI: Thank you Chairperson. That will be the evidence-in-chief of this applicant.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Cross-examination?
CROSS-EXAMINATION BY MS MAKHUBELE: Thank you Chairperson. Mr Ndaba, when you got the information, when you first met Mr Mpungose, were you aware that he had been a police officer previously?
MR NDABA: Yes.
MS MAKHUBELE: And you were aware of the reasons why he left the police force?
MR NDABA: Yes.
MS MAKHUBELE: ...(inaudible) in circumstances which he joined the ANC and his role in the organisation?
MR NDABA: He infiltrated the ANC, he didn't join the ANC.
MS MAKHUBELE: Yes, however you call it. He calls it joining, you would say infiltrating but the circumstances thereof and what his role was, were you aware of?
MR NDABA: Ma'am, like I'm saying, it's a case which happened more than 10 years ago and I have to struggle to mix the bits and pieces that I can remember here. Like I said earlier on, he infiltrated the ANC.
MS MAKHUBELE: Yes, I understand that. The reason I wanted to clarify this is because you, in your evidence, you said the reason he was called to come to Lusaka was to - he was told that he was to come and get briefings. So that's why I need to understand from you what his role in the organisation was?
MR NDABA: His task, he was sent to infiltrate the ANC and like I said earlier on purporting factions fights within Natal, one. Two, infiltrating the UDF. Three, infiltrating MK structures in Natal.
MS MAKHUBELE: Yes, I don't have a problem with that, I want to know obviously when those people, whenever a person infiltrated an organisation, he would have a role say in a structure, say at Ntuzuma or Lamontville he will be say put in a position where he is secretary of that branch or that's what I want to know?
MR NDABA: What he did was that he managed to have access to some cadres of Umkhonto weSizwe in Natal and he was used at some stage to acquire false identity documents for them and after which he would acquire through the assistance of his handler and then give them the copy of those IDs.
That's one. Two, he claimed to have opened, if I remember, a structure whereby cadres from Swaziland would be infiltrated into South Africa and they would be received by him and he would open some projects, building projects whereby they would act as if they are working but they are MK cadres. I think you understand what I'm saying?
MS MAKHUBELE: Yes, I do, I do Sir. And then are you saying he just put himself in that position, he's had all those powers, no one put him in that position, the organisation?
MR NDABA: No, no, the organisation, he was in touch with some ANC activists in Natal who had contact with the ANC in exile so they sent him through, do you understand what I mean? They put him into contact with the ANC in exile. For example, there was this old man who passed away who was involved in the anti - Mzizwe Dube, I think I remember, he was working with him.
MS MAKHUBELE: Yes, were you - did it ever come to your attention that he, after he left the police force and before say he joined the ANC he was involved in a business of some kind? Do you know anything about what he did in between? What his source of living was?
MR NDABA: Like I'm saying, I cannot remember. What I can remember is what I just said to you now.
MS MAKHUBELE: Okay. My instructions are that he left the police force in 1978 because he was sick. Then he became a traditional healer and that other than being a courier for the ANC after he joined it, he was regarded as their herbalist and I believe you understand what I mean by this ...(intervention)
MR NDABA: I remember what you are saying, yes.
MS MAKHUBELE: Yes as in African maybe that in the organisation he would - his role was to provide the members with muti say to strengthen them against their enemy. Did this ever come to your attention?
MR NDABA: I remember what you are saying, yes.
MS MAKHUBELE: When did it come to your attention?
MR NDABA: Because when he came to Lusaka he came with a lot of African medicine.
MS MAKHUBELE: Yes and then did he give you any explanation as to why he came?
MR NDABA: Yes, he told us, yes.
MS MAKHUBELE: What was the explanation he gave you?
MR NDABA: He was a traditional healer and he was, like you are saying, he said he was involved in strengthening MK cadres.
MS MAKHUBELE: Did he also give you information as to at whose orders he came there or whether he came there on his own?
MR NDABA: When I started I said that we lured him, he was called under the pretext that Comrade Zuma wanted to see him which was a lie of course, we wanted to question him regarding the allegations against him.
MS MAKHUBELE: Are you saying he was told that Jacob Zuma wants to question you about the allegations and then he agreed to come to Lusaka under those ...(intervention)
MR NDABA: No, you don't understand me.
MS MAKHUBELE: I do understand you.
MR NDABA: He was told that Jacob Zuma wants to see him in Lusaka.
MS MAKHUBELE: For what, Sir?
MR NDABA: For his role in the ANC because he thought that we did not know he was an infiltrator. He thought that maybe we were just using him. We did not have that information. As a result we called him and we - okay, he was called and told that Jacob Zuma wanted to see him in order to discuss his role within the ANC. He did not know that we were going to arrest him.
MS MAKHUBELE: Do you know if he came from, say, South Africa to Lusaka?
MR NDABA: No, he came - from South Africa he went to Zimbabwe. From Zimbabwe he went to Lusaka and then in Lusaka it's when we got involved.
MS MAKHUBELE: Do you know his contact in Zambia?
MR NDABA: His contact?
MS MAKHUBELE: Yes, who his contact was in Zambia - in Zimbabwe I'm saying.
MR NDABA: No, no. He was working with the PMC, Political Military Council who were working with the security department of the ANC. Those are two different departments.
MS MAKHUBELE: Do you know a person named Bafana Duma?
MR NDABA: Yes I know, he was in Swaziland at some stage. He passed away and then he went to work in Zimbabwe.
MS MAKHUBELE: Yes.
MR NDABA: With the PMC, yes.
MS MAKHUBELE: Do you know if he - that's Bafana Duma and Mr Mpungose knew each other?
MR NDABA: I can't remember but I think so.
MS MAKHUBELE: My instructions are that he was a cousin of this Bafana Duma and when he went to Zimbabwe, this Bafana Duma is the one who told him that your services as a herbalist are needed in Lusaka by Comrade Jacob Zuma and that's how he came to go to Lusaka, not to discuss his role in the organisation but in his usual duties which were to provide medicines for ANC people?
MR NDABA: It's his role, it's his role in the ANC, to provide muti, in saying that, it's his role.
MS MAKHUBELE: Do you understand what I'm putting to you?
MR NDABA: Yes I understand.
MS MAKHUBELE: Yes. And then when he got there you said you -fine, he was lured by you to go there and you said you searched him and you found those things that you mentioned. Did you show the things to him?
MR NDABA: Yes.
MS MAKHUBELE: He says that he was never shown those things that you - well he heard about them at the Matsonyuane Commission but he was never shown, say, the car registrations, the map. The only thing he had and which he gave you an explanation there was the IFP card. That's the only thing that was found in his possession?
MR NDABA: Do you want me to answer?
MS MAKHUBELE: Yes. That's the only thing you found in his possession and he gave you an explanation as to why he was having that IFP card then, in 1987 when you first met with him?
MR NDABA: I think he is lying you know? I'm sorry to say that.
MS MAKHUBELE: He didn't give an explanation as to why he had an IFP card?
MR NDABA: We had, like I said, a number of these things that we found with him in his possession and we raised it with him. I can't remember but finally this culminated in his confession. It culminated in his confession there.
MS MAKHUBELE: Yes, I know that you said you had to assault him to get a confession, but my question is ...(intervention)
MR NDABA: We didn't assault him to get a confession.
MS MAKHUBELE: Did he not give an explanation as to why he had an IFP card? That's what I want to know.
MR NDABA: I can't remember, maybe Mr Dieta will remember when you start asking such questions.
MS MAKHUBELE: But had he given an explanation, would you have considered it?
MR NDABA: You know, at that time being a member of the IFP and we know during the '80s belonging to the IFP, we knew that the IFP was working together with the South African Regime and you know it was puzzling to me for example to find someone openly travelling around with a card belonging to the IFP and you know, you would also ask that question yourself?
MS MAKHUBELE: Okay, have you - I want to put this to you, if you have never heard about it then you can just say no, I've never heard it. Say in townships, during those times, have you ever heard of these things they would say this is an IFP stronghold, say in a township where a particular section would be an IFP stronghold, the other one an ANC, the other one this particular organisation. Have you ever heard about that, that thing?
MR NDABA: What? I know that there are places where there's IFP concentrated, I that, you know?
MS MAKHUBELE: Yes, so you're answer is yes. Do you know where he comes from? He's from ...(intervention)
MR NDABA: Natal.
MS MAKHUBELE: Natal yes, but what particular area in Natal?
MR NDABA: I can't remember but I think he comes from Ntizuma or something like that, in Natal.
MS MAKHUBELE: Yes and how well do you know that Ntizuma area? Do you know it like I say I say know this Ntizuma but I've never been there or do you know what was happening in Ntizuma then?
MR NDABA: Madame, let me tell you. You know, at that time we used to hear there's violent conflict in Natal, we were in exile. We used to here there's a violent conflict among ANC and IFP supporters and that the IFP, we knew that the IFP was having the backing of the government and as a result, as members of the ANC, not even the ANC but the United Democratic Front and the people, the ANC was banned at that time, and that the ANC - I don't have to go into policies - that the ANC is an organisation which fights for the rights of the people and so on. I mean organisations like the IFP, you don't compromise with people who are killing innocent people, you know?
MS MAKHUBELE: No, I have no interest in the merits of the violence. My question to you is, in relation to the violence at the time and in relation to say the concentration of people or the organisation membership, Ntizuma, was it an ANC or an IFP area?
MR NDABA: I can't answer you.
MS MAKHUBELE: You cannot? Mr Mpungose's instructions are that that was an IFP stronghold and for a person to survive at that place then, one needed to have an IFP membership card irrespective of, say, whatever other organisation you would be loyal to. He needed to have that card. That's the reason he was having that card in his possession and that the explanation he gave when he was confronted?
MR NDABA: Let me just say that the explanation, the explanation which he may have given us did not satisfy us. I think it's not - but we were not satisfied and finally, like I said, this thing, he was cornered and he confessed. He wrote as thick document like this.
MS MAKHUBELE: I have no problem with that and he wrote it because you - that's what you wanted ultimately but the question is, if that explanation was given to you, would it not have been reasonable, say for you, to understand that this is our person and for him to surface in this area, which is an IFP stronghold, he must be seen to be an IFP person as long as he was fulfilling, say, his duties, his duties as an ANC courier or a herbalist?
MR NDABA: I said his explanation did not satisfy us.
MS MAKHUBELE: Okay, do you know the names that you can give of say people that he would have to obtain false ID documents and then they were later arrested by the police. Do you have such names?
MR NDABA: I can't, you know, I've been trying to recall. It's a pity because I tried to check with our archives but I don't know, due to the disorganisation of our archives, but he admits that he was doing that. I don't think there's a problem.
JUDGE DE JAGER: Sorry, I don't know whether I understood the question fully. He obtained documents for cadres coming into the country or even members in KwaZulu Natal. Now your question was sort of double barrelled. Did you ask him whether he could supply any names of people who he betrayed or whom he helped to obtain documents?
MS MAKHUBELE: Thank you. It's the people he betrayed, the people he helped to obtain documents and then betrayed.
You have already answered the question that you tried from your archives but when you confronted him, then in 1987, did you have such names?
MR NDABA: Yes.
MS MAKHUBELE: Did you tell him that these are the people that you have betrayed?
MR NDABA: He knows those people, I think.
MS MAKHUBELE: Yes, because my instructions are that the people that he helped to obtain documents, no one was ever arrested at that time. Up to now, we cannot recall any person that he had - was arrested after having been assisted by him to obtain illegal documents and that when you questioned him, you never produced any document to back up your allegations?
MR NDABA: I don't know whether I have to start - because you know, it's not like it's my word against his, you know? We were not working like jungle court, you know, whereby we would get a person and start torturing him. We would verify the story that we have. I mean we have structures that we were with, sending people into the country in Swaziland and there would be consultation and verification of - that one always happens, I mean you cannot investigate against - you call a person and start beating him, it's not investigation.
MS MAKHUBELE: Yes Mr Ndaba, if I may just get in there. You are the words jungle court, I was not going to use it, but then what would you then call yourself when you - rather let me start here, did you at any stage during the - apparently he was held for 43 months, can you confirm this?
MR NDABA: No, I don't know because he passed our hands. I think in our hands it took something like two weeks and then he proceeded to Angola. I don't know how long he spent in Angola and wherever he went.
MS MAKHUBELE: I'm telling you. It's 43 months. Was he ever given an opportunity or was a tribunal ever set up where he was afforded an opportunity to explain? I mean, okay, you questioned him, that was the questioning stage. Was that supposed to be the end of the story or was there another structure which was to have looked at his case?
MR NDABA: I cannot explain the process but then, like you are saying, I did my part and some other people took over, but what I know is that later on he was released and given some responsibility in Tanzania. It's what I know, but I don't know how the whole process went, you know?
MS MAKHUBELE: If you were then to answer my question based on your experience, what is the procedure is a person is suspected of being an agent or whatever, is there a hearing that's set up to decide, to hear the evidence and finally to decide on his fate what's to be done with him?
MR NDABA: Yes, there's supposed to be a tribunal.
MS MAKHUBELE: Yes, do you know if that was done with Mr Ndaba?
MR NDABA: Mr Mpungose.
MS MAKHUBELE: Mr Mpungose, I'm sorry, yes. Do you know if that was done?
MR NDABA: I don't know.
MS MAKHUBELE: You don't know?
MR NDABA: Yes.
MS MAKHUBELE: And okay, if I were to tell you that in all the 43 months that he was held that was not done, would your reaction not be that whatever that in itself amounts to being, what you did, you were a jungle court?
MR NDABA: I don't want to agree with you, you know?
MS MAKHUBELE: I'm not saying that you should. Anyway, let's leave it at that. You gave evidence at Matsonyuane Commission and Mr ...(intervention)
MR NDABA: Ma'am, sorry, before you continue with your questioning? I've read through this thing and I've realised that, you know, they are just making one story out of what he said and there is no consistence. You cannot attribute a certain thing to me or whoever. I cannot go back to that transcript again because ...(intervention)
MS MAKHUBELE: You don't know what I want to ask you or do you know?
MR NDABA: Yes, maybe you - but I don't want us to refer to this thing because it has got a lot of mistakes here.
MS MAKHUBELE: That's why I'm asking you and if what my question is going to be a statement which you have made, obviously I'm going to ask you did you make that statement so you are far ahead of me.
Mr Mpungose did not, when he saw you here, he couldn't recall you, but as you mentioned the names Sphinx, he said yes, that's true that the person who transported me to Angola. This is correct?
MR NDABA: Yes.
MS MAKHUBELE: And then evidence at this Matsonyuane Commission was led to the effect that Sphinx or Huna as you were called, pulled his beard, spat on his face. Did you do any of these things, or not?
MR NDABA: I think I did say earlier on that we did not do that, the only method of assault that we did was to hit that knopkierie underneath the suspects feet, you know?
MS MAKHUBELE: For all the two weeks that he was still with you?
MR NDABA: No, it was not every day, like I said, I don't think you understood me initially. We spoke to him and he confessed and I think the assault only took place for only one day at the farm.
MS MAKHUBELE: Which farm? Chongele?
MR NDABA: Yes.
MS MAKHUBELE: And in Lusaka, I don't...(intervention)
MR NDABA: Chongele is in Zambia.
JUDGE DE JAGER: Sorry, was that assault after he confessed or before he confessed?
MR NDABA: I said, Sir, earlier on, he confessed and retracted. I don't know how many times he confessed, how many times he retracted.
JUDGE DE JAGER: Yes.
MR NDABA: Finally we ...(intervention)
JUDGE DE JAGER: So if he retracted - and finally you assaulted him?
MR NDABA: Yes.
JUDGE DE JAGER: So there was only one assault?
MR NDABA: Yes.
JUDGE DE JAGER: It wasn't ...(intervention)
MR NDABA: Every day.
JUDGE DE JAGER: It wasn't that he confessed and then retracted and you assaulted him and he confessed again?
MR NDABA: No.
JUDGE DE JAGER: There was only one assault?
MR NDABA: Yes.
JUDGE DE JAGER: And that was after he confessed?
MR NDABA: Yes.
JUDGE DE JAGER: Would you say that was about the first day or the sixth day or how long after you'd arrested him?
MR NDABA: What normally happened, let's say it was at the final end.
JUDGE DE JAGER: At the final end?
MR NDABA: Yes.
JUDGE DE JAGER: So it was towards the end of the two weeks?
MR NDABA: Yes.
JUDGE DE JAGER: Not at the beginning?
MR NDABA: Yes.
JUDGE DE JAGER: Thank you.
MS MAKHUBELE: You said in his confession he mentioned a Botha whom was known in your circles as notorious. Did he also mention that he used to work with this Botha when he was a police officer?
MR NDABA: Yes.
MS MAKHUBELE: That this Botha was his station commander?
MR NDABA: Yes.
MS MAKHUBELE: My instructions are that he mentioned that yes, he did say that Botha was his handler because you kept on assaulting him, as you have already stated, when he'd make a confession, he would retract it, so he had to say something because the beatings were hard for him and he was getting ill because he is a diabetic which is the reason he left the police force?
MR NDABA: It's my word against him, ma'am.
MS MAKHUBELE: Yes, but what I'm saying is that there was nothing strange about his association with Botha because Botha was his station commander before he left the police force?
MR NDABA: Let me tell you, I said that we received information that this man was reporting to Botha even after he had resigned from the police force. That particular report was even having details of, you know, when we receive reports - I don't know, I don't have to explain but it tells you that so and so met so and so and reported about a,b,c,d and you trace that person and you find it's this person. Not only once but a dossier of those reports so, I mean, already we have information that he is working for the other side.
MS MAKHUBELE: But before you arrest him - before you detained him, how long had you received these reports?
MR NDABA: I said we were told that this man, we got this report and we purported a story that it was immediately after and then we traced him, his activities inside the country. Then we purported a story that Comrade Zuma wants to see him in Lusaka because we wanted to question him on the basis of the report that we were having about him.
MS MAKHUBELE: If you had received the report saying five years ago, would you have waited for five years to ... (interven-tion)
MR NDABA: It can't take five years, I mean that's ridiculous.
MS MAKHUBELE: How soon can it take, that's what I'm trying to establish?
MR NDABA: You would understand that it takes maybe one or two to communicate in those circumstances there, it takes maybe some time to call someone inside the country because it's very difficult, we are engaged in a war here. But let me say it must have been at most two weeks.
MS MAKHUBELE: So can I then safely say that between the period of 1978 to say two weeks prior his detention, I don't have the month but I know it's 1987, you had not received a negative report about him all these years?
MR NDABA: What happens - we had not, just to be specific, we had not but I don't have explain, we only had those reports that we got, a dossier, I was saying, a dossier of reports.
MS MAKHUBELE: Yes so he had been a loyal courier for between say, '78 and '87 and then it only took you - well, maybe let me give, say, some months before his detention for you to conclude an investigation about him?
MR NDABA: I beg your pardon?
MS MAKHUBELE: I am saying that, finally I am putting to you that you acted with haste, you had no evidence on which to arrest him?
JUDGE DE JAGER: If it could assist you, according to the report he was handed over to Quatro, Quatro on the 22nd October 1987. So if you say two weeks before that it would be round about the beginning of October 1987? That would be three months.
MS MAKHUBELE: Thank you. I have no further questions, thank you.
NO FURTHER QUESTIONS BY MS MAKHUBELE
CROSS-EXAMINATION BY MR MAPOMA: Mr Ndaba, you say you were a member of the counter-intelligence unit of the intelligence department. What was the role of this counter-intelligence unit precisely?
MR NDABA: The role of this unit was to protect the ANC against infiltration by the enemy.
MR MAPOMA: Was that not the role of the entire intelligence department as a whole? Was it a role not ...(intervention)
MR NDABA: We were responsible for intelligence gatherings, solely to gather intelligence and our role as counter-intelligence, there would be people who were analysts, analysing and valuation of information but we were with counter-intelligence.
MR MAPOMA: I see. And your head was Mr Williams?
MR NDABA: Yes.
MR MAPOMA: And to whom was Mr Williams reporting?
MR NDABA: He was reporting to the leadership of the department.
MR MAPOMA: Whom do you mean when you say the leadership, directorate?
MR NDABA: It's either - no, he was reporting, he was accountable to the directorate. I would call it the directorate, John Nhlanhla, Jacob Zuma, Gashe, that collective.
MR MAPOMA: I see. So the instructions that you got, if I understand you, were to brief Mr Mpungose?
MR NDABA: Yes.
MR MAPOMA: And was the instruction precise on what must you do in the process of debriefing?
MR NDABA: What we did was, you know, when you get that information, you need to - when you debrief a person, you need to make, what you call it, damage assessment. What damage has he done inside the country.
MR MAPOMA: Yes?
MR NDABA: The check into the possibilities of whatever has been affected by his thing, his activity so that you may make some necessary amendments. This is what we were doing and it is very difficult to find a person who is not readily prepared to tell you whatever happened, happened.
MR MAPOMA: I'm asking this question because you have given evidence here where you've said that it was not the policy of the ANC to assault people and now I want to find out how you link then the assault that you conducted on Mr Mpungose and the policy of the ANC?
MR NDABA: I said it is not the policy of the ANC to assault people. The leadership of the ANC will never send you out to go and assault people but there are cases where as a last resort you have to, not even excessive force, but use assault, assault a person. Like for instance in his case he confessed, he retracts, he confesses, he retracts. I mean, he's not taking us anywhere, this person and you have to get through his case and without even being assaulted, he's just playing around with our heads, you know?
CHAIRPERSON: But why do you have to do that, surely once he confesses you have the information you want? He has confessed?
MR NDABA: Sir, I said earlier on, when you get a confession you assess the damage that he has done. You have to go through the confession and go back and ask him some questions that you are not clear of from the confession and it goes - you ask him and he retracts everything.
CHAIRPERSON: Are you saying he didn't answer further questions?
MR NDABA: Yes.
MR MAPOMA: And these assaults are you saying was part of the debriefing process?
MR NDABA: I said they were at the final stage of the debriefings, I would say the last day.
MR MAPOMA: Yes.
MR NDABA: Yes.
MR MAPOMA: And was the leadership aware that such activities were taking place at some point?
MR NDABA: You know, you have to keep the leadership updated, you know, with the regard to the development of each and every case. I would presume that Tim Williams was indicating to them that the case had reached this state, you know, I don't know. It's what I'll presume.
MR MAPOMA: But was Tim Williams aware that ...(intervention)
MR NDABA: Yes he was aware.
MR MAPOMA: At some point you have assaulted Mr Mpungose?
MR NDABA: Yes. Yes.
MR MAPOMA: Was Tim Williams in fact involved in the process of debriefing?
MR NDABA: No, he was not. He was our supervisor.
MR MAPOMA: I'm asking you this because in your amnesty application in paragraph 9a(iv) you say in the last part of it that
"He was debriefed by myself, T Williams and Charles Dieta."
You say you are involved in Mr Williams directly?
MR NDABA: I think that's why I was saying that we should disregard the Matsonyuane thing because here ...(intervention)
JUDGE DE JAGER: This is not the Matsonyuane thing, this is your own application, your own handwriting? Should we disregard that too?
MR NDABA: Oh, I'm saying it was a mistake.
JUDGE DE JAGER: Oh?
MR MAPOMA: Now the assault itself, I think it's important this one. The Committee must know what kind of assault did you conduct on Mr Mpungose?
MR NDABA: Sir, I said we would make him sit on the floor and take this knopkierie and assault him underneath his feet.
MR MAPOMA: You see, I find it difficult to imagine that one. When a person is sitting on the floor the feet are just like this. Now how do you now hit underneath of the feet?
MR NDABA: Can I demonstrate?
MR MAPOMA: Yes please.
MR NDABA: This person will be sitting on the floor, we have the knopkierie here ...(inaudible) on top of his feet, do you understand and then you start assaulting underneath his feet. Do you understand, Sir? Can I repeat?
MR MAPOMA: Yes.
MR NDABA: He is sitting and then you have your foot here, you have your kierrie here and then you assault underneath his feet, here. It's not difficult.
CHAIRPERSON: You didn't demonstrate but in fact with the person who is being assaulted is sitting down with his legs in front of him and his feet pointing upwards.
MR MAPOMA: Yes, thank you. And was that all?
MR NDABA: Yes.
MR MAPOMA: How many days did it take, one day?
MR NDABA: Yes.
JUDGE DE JAGER: And wouldn't he pull his feet up so that you can't hit under his feet?
MR NDABA: Hello? I beg your pardon? You say ...(intervention)
JUDGE DE JAGER: Wouldn't he pull up his feet so that you can't hit underneath his feet?
MR NDABA: No, he doesn't.
JUDGE DE JAGER: Why should he keep his feet like that? The first blow that he pulls up his feet because it's hurting him?
MR NDABA: You can't pull up because you've got your leg - this leg, you've got it, it's pressing his feet down to the floor.
JUDGE DE JAGER: Are so you're pressing his ...(intervention)
MR NDABA: Yes.
JUDGE DE JAGER: You're on top of him, sort of?
MR NDABA: Yes.
JUDGE DE JAGER: Well I didn't realise that and you didn't tell us about being on top of him.
MR NDABA: Not on top, the foot is on top of his feet.
MR MAPOMA: Yes. In fact your foot is on top of his legs?
MR NDABA: Of his legs, yes.
MR MAPOMA: Because he is stretched like that?
MR NDABA: Yes.
MR MAPOMA: And then his foot is pointing that way?
MR NDABA: Yes.
MR KOOPEDI: And what was actually said was that "your left leg is over him", that's what he said in his demonstration.
MR MAPOMA: Thank you. Now when you handed him over to Angola, you said you briefed - you reported to those persons to whom you were handing him over, what you have done and the information that you gathered, is that so?
MR NDABA: Yes.
MR MAPOMA: Now did you recommend to them what needs to be done from there onwards of him?
MR NDABA: Usually when a report goes, it goes with recommendations. I may not remember exactly what recommendations there were but normally what would happen is that the comrades in Angola would be acquainted with the nature of the case and some recommendations. Then they would take it further. Normally we would say debriefing and recommend that he should be locked up and went for treatment and things like that and in some cases you would recommend that he should be given light duties, you know? Maybe there's a chance of him learning a lesson, you know? Do you understand what I'm saying?
MR MAPOMA: I see. So are you saying you can't say in this case what recommendations that you gave?
MR NDABA: Yes, I can't, yes.
MR MAPOMA: Were people given - were there any people who would rehabilitate ...(indistinct)?
MR NDABA: Yes there were people who were given an option of rehabilitation, you know? You would say, maybe for example, a person, you'd think that this person can change, you know? You can reconcile with his conscience.
MR MAPOMA: And then if he reconciles there will never be a tribunal?
MR NDABA: Yes, no. He'd just be left to mix around with people. I'm just thinking, in his case, he might have been left because he was given a responsibility and that and mixed normally with other people.
MR MAPOMA: And what became of his belongings? He must have had some belongings before you interrogated him and some you took and what became of others?
MR NDABA: But what happens is that when you take a person, you take him with everything that belongs to him.
MR MAPOMA: Then when you transported him?
MR NDABA: Yes.
MR MAPOMA: You know, I'm asking this question, I must say this because ...(intervention)
MR NDABA: Yes, no what I'm saying is that say I'm transporting, I have to take his suitcase and everything and the evidence I have I hand it over in Angola there and then I'm out of the story.
MR MAPOMA: Thank you. Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
MR SIBANYONI: You said you would receive the report from people who will be either monitoring before you acted in debriefing a person?
MR NDABA: Yes.
MR SIBANYONI: In other words you don't make your own discretion as to whom to confront and debrief like that?
MR NDABA: I don't know, yes but what normally used to happen is that say for instance someone is a suspect, we received that information from a particular department and we investigate, we have people who we were verifying for, counter-check information, verify it that thing that there and then from there, if we decide that we leave that person, we keep that report until finally maybe we have accumulated a lot but if there is nothing then we find that report. If we think that that person does not deserve to be detained, we don't detain him.
MR SIBANYONI: Yes, the crux of my question was that your structure was not in a position to identify people to be debriefed, in other words we never had a discretion to walk around and say this person is suspect and ...(intervention)
MR NDABA: If that person is in South Africa, obviously we cannot debrief that person because you cannot get into South Africa but if the person is in Lusaka, is in Zimbabwe, Swaziland, Mozambique, you'd go, fly down and get whatever information you want.
MR SIBANYONI: Now if the structure which is responsible for identifying people who are suspected makes a mistake?
MR NDABA: Yes, there are cases where we say for instance we cannot get into this one, we need to investigate further.
MR SIBANYONI: Then would you establish during your debriefing that the structure, which identified the person made a mistake and suspected an innocent person?
MR NDABA: Like I'm saying there are cases whereby people have not been arrested. Well, we realised that now we need some more information, this is not enough information to detain this person. It's not everybody who is being detained.
MR SIBANYONI: Yes. Now I don't know if it's a question of the English language, it would appear you contradict yourself if you say it was not the ANC policy to torture people and then thereafter you say we use it as a final resort. Do you understand my problem with what you are saying because if you say it was not the ANC's policy to torture people, you are saying whatever you did was not within your duty as a cadre of the ANC, in other words you were not authorised by the ANC?
MR NDABA: What I can say here is that the ANC, like for instance where you report to Tim, we told Tim, we tell Tim that this person was assaulted because of a,b,c and then we justify why we did that. The ANC would understand that there was no other method except to assault this person.
MR SIBANYONI: Which means there was a room for using force if a person gives you a problem?
MR NDABA: You must understand that we were in a war situation and the boers were torturing our people here and those cadres who have been arrested by them, they were even worse for that matter. I'm not saying it was reciprocal because with us it was the last resort.
MR SIBANYONI: Was the question of enemy agents a problem?
MR NDABA: Yes, very much. More so during the '85/'86, it was very much a big problem for the ANC.
MR SIBANYONI: Thank you Mr Chairperson, no further questions.
JUDGE DE JAGER: I just want to read to you what Matsonyuane Commission reported and then you could comment on it and say whether it's true or not. I'm reading from page 79 and in the report it was page 95
"Mpungose was beaten on the feet."
That you agree with?
"On his back and all over his body with a hoe handle and with a sjambok similar to those used by the SAP. He was assaulted for two days."
Can you perhaps comment on that up to there?
MR NDABA: I am saying I don't agree with it.
JUDGE DE JAGER: You don't agree with it?
MR NDABA: Yes.
JUDGE DE JAGER: "He was also burnt with candles on the bottoms of his feet."
MR NDABA: I don't agree with that.
JUDGE DE JAGER: "Mpungose became seriously ill during the course of his beatings due to his diabetic condition."
MR NDABA: I don't agree with that.
JUDGE DE JAGER: "A doctor was brought to examine him."
Was there ever a doctor brought?
MR NDABA: I think there was a doctor because he wants a ...(intervention)
JUDGE DE JAGER: I see you're looking to your co-applicant to get confirmation, why?
MR NDABA: No, I'm not asking him, I just trying to remember. I'm not asking him anything here.
JUDGE DE JAGER: No, I know you didn't ask him but I saw him nodding at you after you've looked at him?
MR NDABA: No, I was not asking him. Maybe you would excuse him but normally what would happen when a detainee comes, he's being detained, we have to find out his health conditions. In that regard a doctor would be called to come and examine him whether - and then administered some treatment. In that regard the doctor was going to do that.
JUDGE DE JAGER: Was that done in every case?
MR NDABA: In every case we would ask about health conditions of suspect.
JUDGE DE JAGER: Yes but is a doctor called in every case or only cases where you decide to call him after asking the person what his health condition is?
MR NDABA: I don't want to comment on that but I mean, for example, diabetes is a serious ailment for example. I'm told that a person with diabetes can develop some complications. As a result he has to have a certain particular medication, you know?
JUDGE DE JAGER: Yes. Did he tell you that he's got that?
MR NDABA: Yes.
JUDGE DE JAGER: Yes, okay. And he had medication prescribed for him.
"Ultimately Mpungose confessed to being a spy for the South African Police."
Is that correct?
MR NDABA: As I said, he confessed but if you say ultimately, you are trying to make it ...(intervention)
JUDGE DE JAGER: No, I'm not trying to make anything. I'm reading what the Commission found so you should say whether the Commission is correct or not.
MR NDABA: No, he confessed, yes.
JUDGE DE JAGER: But not ultimately, at the beginning or what did you want to say about ultimately? You started when I read ultimately so you said not ultimately, what do you mean by ultimately?
MR NDABA: It depends, ultimately after a while, you know? After a while.
JUDGE DE JAGER: Did it take a few days or a day or an hour or ten minutes or what?
MR NDABA: He must have confessed - he must have confessed after maybe two days.
JUDGE DE JAGER: Maybe two days?
MR NDABA: Yes and not two days, 72 hours, because we would go to him and talk to him for two, three hours and leave him you go back the next day and talk to him for two hours and leave him and you give him a task to write, you know, he must
write. So when you say three days you talk about 72 hours, it's not like that.
JUDGE DE JAGER: Yes. Did he confess before you took him to the farm or after you've taken him to the farm?
MR NDABA: Before.
JUDGE DE JAGER: Yes. Mpungose was then taken to Chongele Farm outside of Lusaka, is that right?
MR NDABA: Yes.
JUDGE DE JAGER: "He was stripped naked and beaten on the bottom of his feet"?
MR NDABA: He was not stripped naked.
JUDGE DE JAGER: Right.
"His feet were also burnt with candles. These beatings were administered by Huna" that's you, "Williams and two others".
MR NDABA: He was not burnt with candles, it's not true.
JUDGE DE JAGER: Was Williams present?
MR NDABA: No.
JUDGE DE JAGER: Not?
"He was hung from a tree by his feet"?
MR NDABA: It's a lie.
JUDGE DE JAGER: "And then by his hands and beaten on his back and on the bottoms of his feet with a fan-belt by Huna and Williams."
MR NDABA: I said the only assault we did was assault him underneath the feet, that's all.
JUDGE DE JAGER: When you testified before this commission, did you admit that you ever assaulted him?
MR NDABA: Here?
JUDGE DE JAGER: No, at the Matsonyuane Commission. Did you give evidence to them?
MR NDABA: I think I said I admitted to having assaulted him underneath his feet. I can't remember but I think I said that.
JUDGE DE JAGER: The commission reported that you denied that you ever assaulted him.
MR NDABA: I denied that - I remember that day he took out his top and showed them some scars at his back which thing I denied. He must have been assaulted somewhere out of my reach, you know? Not when I was with him.
JUDGE DE JAGER: Thank you.
CHAIRPERSON: Re-examination?
MR KOOPEDI: Nothing in re-examination, thanks Chairperson.
NO RE-EXAMINATION BY MR KOOPEDI
CHAIRPERSON: Thank you.
MR KOOPEDI: Chairperson, if there are no further questions this will be the application for this applicant. We are not intending to call any other further witnesses.
CHAIRPERSON: Mr Dieta is not giving evidence?
MR KOOPEDI: He is giving evidence for his application but not in support of this application.
CHAIRPERSON: But the two applications have been set down together?
MR KOOPEDI: Chairperson, what I meant is that for this applicant we are calling no further witnesses. If there are no further questions to him I would ask that he steps down and we call in the second applicant who will give evidence for his application.
WITNESS EXCUSED
