ON RESUMPTION
MR MBANDAZAYO: The next applicant Chairperson,is Thomas Ngobeni.
THOMAS NGOBENI: (sworn states)
CHAIRPERSON: Thank you.
EXAMINATION BY MR MBANDAZAYO: Mr Ngobeni,the affidavit which is in front of you, is also before the Honourable Committee,members of the Committee, do you confirm that this affidavit was made by yourselfand you abide by its contents?
MR NGOBENI: Yes.
MR MBANDAZAYO: Chairperson, that is the evidencefor the applicant.
CHAIRPERSON: The affidavit, Mr Van Rensberg,you have a copy and Ms Mtanga, that will be received as Exhibit C.
MR MBANDAZAYO: Thank you Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Van Rensberg?
CROSS-EXAMINATION BY MR VAN RENSBERG: Thankyou Mr Chairperson. Mr Ngobeni, can you just tell us for which offences youare making application for amnesty?
MR NGOBENI: Yes, I can tell you.
MR VAN RENSBERG: Please proceed.
CHAIRPERSON: If you can just tell what offencesyou are applying for amnesty, that is the question.
MR NGOBENI: It is murder, illegal possessionof firearm and ammunition and attempted robbery.
MR VAN RENSBERG: Can you tell us what evidencewas led in the criminal trial, that led to your conviction of attempted robbery?
MR NGOBENI: Can you repeat your question.
MR VAN RENSBERG: The question is can you justbriefly tell this Commission what evidence were led, was led, during the criminaltrial that led to your conviction on the count of attempted robbery?
MR NGOBENI: What I can remember on attemptedrobbery, we never gave any evidence because our aim was not to rob.
MR VAN RENSBERG: Yes, I am asking what evidencewas led from the State's side?
MR NGOBENI: They only told us that we arecharged with attempted robbery, but I never heard Mr Swanepoel talking aboutattempted robbery.
CHAIRPERSON: I think that you should justbe a bit more specific Mr Van Rensberg, because I am sure that we can all acceptthat at the trial, there was evidence of entering the farm premises withoutpermission, being armed, shooting, entering into the house, all of which couldconstitute a basis for attempted robbery. Was there any evidence led at thetrial of any of you unsuccessfully actually trying to take any specific itemfrom the premises?
MR NGOBENI: There was no one that attemptedto take anything from the house, because even on our plan, it was not thereto rob. I am sure there was no one who was intending to take anything or torob anything from the house.
MR VAN RENSBERG: Thank you Mr Chairman. At the trial, at the time of the trial, did you use as a defence, the fact thatyou were members of APLA and that you actually attacked the farm for politicalmotives?
MR NGOBENI: Yes, that is correct.
MR VAN RENSBERG: But I gather from your previousstatement that you actually did not give evidence yourself, is that not correct?
MR NGOBENI: I don't understand which statementyou are talking about.
MR VAN RENSBERG: Okay, let's be more direct. Did you give evidence on your own behalf and in your own defence, at the timeof the criminal trial?
MR NGOBENI: I don't understand whether youare talking about evidence in court given by myself?
CHAIRPERSON: Yes, I think that is what MrVan Rensberg is asking, did you during your trial in court, give evidence yourself?
MR NGOBENI: Yes, I gave evidence, but theevidence I gave after I was arrested, some of those were coerced to make suchevidence.
JUDGE KHAMPEPE: May I interpose Mr Van Rensberg,maybe just to assist with regard to this. Did you give evidence in mitigationof your sentence, to the effect that the offence for which you had been convictedwere politically motivated, is that the kind of evidence that you are referringto when you say you gave evidence of a political nature in your defence?
MR NGOBENI: Yes, after sentence, I gave evidencein mitigation of sentence.
JUDGE KHAMPEPE: Yes.
MR NGOBENI: And I gave it wilfully.
MR VAN RENSBERG: Apart from giving evidencein mitigation, did you actually also give evidence in defence of yourself ornot, only in mitigation?
MR NGOBENI: I also gave some evidence beforewe were convicted, even before we went to, but the evidence that I gave is notthe same evidence that I gave in mitigation of sentence, so to say.
MR VAN RENSBERG: Yes, and the difference wasthat when you gave evidence in your own defence, you did not mention that youwere a member of APLA and that you attacked the farm for political reasons,is that not so?
MR NGOBENI: It is not correct, I explainedthat I was a member of APLA.
MR VAN RENSBERG: Let's not get confused, didyou explain to the Court the first time when you gave evidence on your own behalf,before you were found guilty, did you give evidence then that you were a memberof APLA?
MR NGOBENI: I don't know if - I forgottenbecause it is a long time ago, but I remember telling the Court, but I am notsure whether I didn't say, but I think I told the Court that I was a memberof APLA.
MR VAN RENSBERG: Yes, I put it to you andthat is also the evidence of the first applicant, the real situation is thatyou never during your defence of the case, informed the Court that you actuallyattacked the farm for political motives and you only mentioned that in mitigation. Do you agree with that?
JUDGE KHAMPEPE: Mr Van Rensberg, do you personallyhave instructions in relation to this point, if you put it to him, will yourclient also say something to that effect?
MR VAN RENSBERG: Perhaps I can just take specificinstructions on that.
JUDGE KHAMPEPE: Yes, before putting it tohim, yes. You know if you are not going to substantiate it ...
MR VAN RENSBERG: Yes, I just want to confirmthat. Chairperson, I have in fact confirmed my instructions and I can put itto this witness specifically that the victim will come and testify to confirmmy previous allegation.
JUDGE KHAMPEPE: You may proceed to do so.
MR VAN RENSBERG: Thank you, just to clearup any confusion, I want to put it to you that Mr Swanepoel will come and testifythat he was present during the hearing of your case and that neither yourselfor any of the other applicants in today's hearing, made any mention during thedefence stage of your criminal hearing, made mention of the fact that you attackeda farm for political motives. What do you say to that?
MR NGOBENI: As I have already indicated, Ican't remember very well, because it is a long time ago. Initially we nevertold the Police that we were members of APLA, at the end, in mitigation of sentence,there is a section where we told the Court that our actions were politicallymotivated, that is where we told the Court that we were members of APLA.
MR VAN RENSBERG: Yes, the question then thatremains to be answered is why didn't you if you now are frank and open and putall your cards on the table to spell out exactly what your political motiveswere at the time, why didn't you explain that in the court of law as well?
MR NGOBENI: It was very difficult that time,because of our experience how the political people were handled by the governmentof the National Party, so it was very much difficult for us if they could haveknown that we were members of APLA, they were going to treat us very badly,just like other people who were killed by the Security Police, more especiallyin prison.
MR VAN RENSBERG: Thank you Mr Chairperson,I have no further questions.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you. Ms Mtanga, do youhave any questions?
MS MTANGA: No questions Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Judge Khampepe, do you have anyquestions?
JUDGE KHAMPEPE: No questions.
CHAIRPERSON: Adv Bosman, any questions?
ADV BOSMAN: I don't have any questions, thankyou Chairperson.
CHAIRPERSON: Thank you Mr Ngobeni, that concludesyour testimony, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Chairperson, I will only callone witness, Gen Fihla only on two specific points to give evidence, thank you.
CHAIRPERSON: Yes. General Fihla, what areyour full names please?
MR FIHLA: Mbulelo Raymond.
CHAIRPERSON: Mbulelo?
MR FIHLA: Yes, Raymond Fihla.
MBULELO RAYMOND FIHLA: (sworn states)
CHAIRPERSON: Thank you. Mr Mbandazayo?
EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson. Gen Fihla, can you tell first the Committee where are you presently working,what are you doing at that one?
MR FIHLA: I am presently with Defence Intelligence,I am part of the collection team under Major General Steenkamp.
MR MBANDAZAYO: Can you tell the Committeeyour rank?
MR FIHLA: I am a Brigadier General by rank.
MR MBANDAZAYO: Mr Fihla, can you tell theCommittee, before you became a member of the South African National DefenceForce, which of the non-statutory forces did you belong to?
MR FIHLA: I belonged to the Azanian Peoples'Liberation Army and I was a member of the High Command and at that time, Directorfor Military Intelligence.
MR MBANDAZAYO: Can you Gen Fihla tell theCommittee, whether do you know any of the applicants in this hearing?
MR FIHLA: The only applicant I know directlyis Brian Thobejane. How I know him is because when he arrived, I think it was1990 or 1991, I think I was the one who received him and when he did his basicmilitary training and Intelligence courses, I was also in charge of them aswell.
MR MBANDAZAYO: Now, Gen Fihla, briefly, theapplicants have testified that they targeted the farm of Mr Swanepoel and thereason why the targeted the farm of Mr Swanepoel is because it was in termsof the PAC APLA policy to attack the farms. Can you confirm that, can you tellthe Committee whether, what they did was within the scope of operations of APLAor it was outside the scope of APLA?
MR FIHLA: If I recall, I got to know aboutthis operation in 1993 when a report on our casualties was given by the thenDirector of Operations, Comrade Lethlapa Mpahlela. Because we all the timehad to look at the operations to look if definitely they fell within the ambitand the mandate of the Azanian Peoples' Liberation Army and I can confirm thatthis operation specifically fell within the mandate and the ambit of our operations.
MR MBANDAZAYO: You mention that Lethlapa Mpahlela,former Director of Operations, and you said that when you talk about casualties,can you expand on that?
MR FIHLA: What we used to do, occasionallyreports were given to the High Command and specifically to me as well as theDirector for Military Intelligence, to make a review of cases and casualtiesbecause part of my responsibilities was to ensure that the same mistakes don'thappen again and was to ensure that operations were conducted, they were basedon proper intelligence. That is why specifically also on this operation, Ireceived a report as well. Lethlapa was given a report in his capacity asDirector for Operations, because all operations fell directly under him. Thecadres who were conducting operations directly, were accountable specificallyto him.
MR MBANDAZAYO: It was also mentioned here,can you elaborate that it was mentioned that there were two, you also had twocertain Units within APLA, a Repossession Unit and an Offensive Unit, can youbriefly tell the Committee, whether the same Unit can do the same, can be involved- if the Offensive Unit can be involved in the Repossession Unit and the RepossessionUnit can be involved in the offensive operations?
MR FIHLA: Basically the Units were operatingseparately, they were operating parallel. An Offensive Unit was not part ofthe Repossession Unit, but occasionally it did happen that an Operational Unitwould find itself repossessing, maybe this was because of natural factors, becausewhenever they saw certain things, then they would take some initiative and takesome of the things, but the structure was that the Operational Units were separatefrom Repossession Units.
MR MBANDAZAYO: Chairperson, that is the evidenceI wanted to lead in this aspect from Gen Fihla, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you Mr Mbandazayo. MrVan Rensberg, do you have any questions?
CROSS-EXAMINATION BY MR VAN RENSBERG: Yes,thank you Mr Chairman. General, are you saying that if we make it the policyat the time applicable on these circumstances that you would have expected yourAssaulting Unit, if they arrived on the farm, get the farmer into the house,get him to open the safe and there are guns and cash in the safe, you wouldexpect them to take the guns and the cash, is that not so?
MR FIHLA: We wouldn't expect them to do that,because it was not part of their brief, but it is natural as soldiers, whenyou see a gun, particularly in our case, on very rare occasions would some ofthem leave guns idly. They would definitely maybe take them if the opportunityis there.
MR VAN RENSBERG: Yes, let's put it this way,you would definitely not expect them to leave it there, is it not?
MR FIHLA: No, I would expect them to leaveit there, but if they take the initiative and they deem it fit within theircircumstances and they bring them, as long as they report it, that when theyconducted this operation, then they had this (indistinct), as long as that wasreported and submitted, then they would fall within the mandate, but they wouldbe found guilty if they sustained some casualties because they moved out ofthe way and started to do what was not within their mandate, that is the problem. So the initiative at times, would be there on the cadres.
MR VAN RENSBERG: Okay, let's narrow it down,it was definitely not against the orders of the attackers in that specific instance,to have taken guns and cash if the opportunity arose?
MR FIHLA: It would have depended on the instructionsof the Commander at that time, who gave them the instructions, what he had said. If they had gone outside the instructions, then they would have been guilty. But it would depend on the instructions of the Commander, depending on the natureof the attack, that was to be attacked.
MR VAN RENSBERG: Yes, but if we talk aboutthe general attitude of the High Command towards such a thing, it would nothave been seen as totally strange if they would have taken the guns and thecash?
MR FIHLA: The policy was strict, that is whywe separated the Units, because we didn't want to have confusion in this regard. But from practical experience, occasionally some of the Units did find themselvesdoing what they were not supposed to do.
MR VAN RENSBERG: Yes, and you as High Commanddid not have a serious problem with that?
MR FIHLA: We had a problem with that.
MR VAN RENSBERG: Did you ever discipline thosemembers that took money or guns when they were supposed to kill people?
MR FIHLA: I remember an instance in the Transkei,fortunately I was there at the time when they reported him, a Unit had goneout of his way to do what he was not supposed to do and I was part of the teamthat disbanded that Unit because they went out of their way to do what theywere not supposed to do, so I can confirm that disciplinary measures were takenwhen such things came up. But naturally we would also look at the circumstancesunder which such activities did take place and then take the necessary measureson the basis of that.
MR VAN RENSBERG: Yes, when you started givingyour evidence, I got the impression that you would say and speaking on behalfof the High Command, that you would not frown on the cadres if they do takeweapons and cash perhaps in those circumstances. Are you now saying that youactually totally disapproved of that, because of the split in the differentdisciplines?
MR FIHLA: I think the words you are using,I did not use them. Initially I said naturally, because we are dealing withhuman beings who would at times, take their own initiative, so I am talkingfrom practical experience, from what happened. Some of the Units did actuallydo what they were not supposed to do. We dealt with those cases specificallyaccording to the circumstances under which it happened. We were strict on thisrule, that is why we separated the Units and I am making this example of theTranskei where I was part and parcel of the team that disciplined the Unit there,but naturally which is what I am saying, we looked at the circumstances. Beinga soldier myself, if a weapon is laying idle there and I can carry it, I willnot jump it and leave it, because I was not part of the Repossession Unit, soI would take the initiative and take it, as long as I report it back.
MR VAN RENSBERG: Yes, if I can refer you tothe statement of the first applicant, Mr Thobejane.
CHAIRPERSON: Exhibit A?
MR VAN RENSBERG: Yes, that is Exhibit A,thank you Mr Chairman, and specifically paragraph 8.2 thereof, I am going toquote it for you, he says, perhaps I should start with yes, 8.2
"...the bastion and minions of the then erstwhile regime were in terms of the APLAperspective (a) the members of the South African Police and reservists in general,(b) members of the South African Police and reservists in general, (c) ..."
MR MBANDAZAYO: Sorry Chairperson, just a correctionthere, I think there it was a typographical error, it should be South AfricanDefence Force.
MR VAN RENSBERG: Yes, (b).
MR MBANDAZAYO: It was a repetition, (b), itwas a repetition of paragraph (a). (b) should be South African Defence Forcebefore it was National Defence Force.
MR VAN RENSBERG: Yes, I don't think I willhave a problem with that amendment, it clearly refers in (b) to members of theSouth African Defence Force and then
"...(c), the farmers as they belonged to the Commando structures."
Let's stopthe quotation there. General, if I get the impression then that APLA had itagainst the regime, the Police, the Defence Force and the white farmers, orthe farmers then, who formed part of the Commando's, the only thing that I canthink of that qualifies these three to be grouped together is because they wereall armed, armed structures, is that not so?
MR FIHLA: Partly yes, but our understandingwas that the farmers who formed the first line of defence through the CommandoUnit system and so on.
MR VAN RENSBERG: Yes, and it was general knowledgethat farmers are armed?
MR FIHLA: Yes.
MR VAN RENSBERG: So with that knowledge ifI interpret your evidence correctly, you say that it was APLA's policy or instructionsthat in fact, in spite of the fact that they attacked armed farmers, if theycome across guns, they should leave it there and not disarm the farmers becauseit is not part of that Unit's responsibility, is that your evidence?
CHAIRPERSON: I think Mr Van Rensberg, I understoodit, and correct me if I am wrong please, was that the Offensive Unit's functionwas to attack, not to repossess. Repossession Unit's function essentially wasto repossess, but if in an attack conducted by an Offensive Unit, they cameacross weapons or money and they could use their discretion and take that money,so long as they reported it to the Operations Director, etc, that was the understandingI took, so in other words and I think in the last answer that the General answered,he said if he was as a soldier doing an attack and came across a gun, he wouldhimself have taken it and then, but report it. I think that was the understanding,if there wasn't an order "leave guns alone."
MR VAN RENSBERG: It should be totally separate.
CHAIRPERSON: Just rephrase the question.
MR VAN RENSBERG: Yes, thank you Mr Chairman. Perhaps I did misunderstand it, I thought, I also thought that was initiallyhis view, but then that he changed later, perhaps I can put a specific statementto him.
CHAIRPERSON: Before I put that, was I incorrectin what I said?
MR FIHLA: You are correct, that is what Isaid.
MR VAN RENSBERG: Okay, then we should notneed to take the matter further. If you then accept as correct the statementthat the Chairman has made just now, then obviously you have to agree with methat the Court, the criminal Court made the correct ruling in finding them guiltyon attempted robbery, do you agree with that statement?
MR FIHLA: Unfortunately I did not see theCourt ruling and I am not too sure if that ruling was based on what, so I wouldn'tcommit myself on that one.
MR VAN RENSBERG: I see. The Chairman previouslyenlightened us to the fact that on the 16th of January 1994, APLA stopped itsarmed offensive.
CHAIRPERSON: I said I think it was the 16th,I wasn't sure of the date.
JUDGE KHAMPEPE: That is correct.
MR FIHLA: It is correct, the 16th.
MR VAN RENSBERG: Yes, I just want to confirmthat, is that in fact the correct date that we are talking about, 16th of January1994?
MR FIHLA: I am not too sure about the date,but it was in January 1994.
MR VAN RENSBERG: Have you as part, or at leastformer part of APLA's High Command, what steps have you taken to make sure thatyour cadres on the ground today, has received that orders?
MR FIHLA: This decision was taken in 1994and I was part of the decision, the reason why the decision was taken firstand foremost is because at that time, if I may give you the background of thePAC, there was some divisions in terms of whether the PAC should become partand parcel of the process that was taking place at the time. After a lengthydebate a decision eventually was taken in January that the armed struggle hasgot to be stopped and therefore both the PAC and APLA had to be part and parcelof the process that was taking place. Instructions were issued by the HighCommand, unfortunately we had a long structure in terms of the chain of command,so the instructions from the High Command were directed first and foremost tothe Director of Operations, and the Director of Operations in turn had to giveinstructions to the Regional Commanders and the Regional Commanders in turnhad to give instructions to the District Commanders, down until it reached thelowest levels, and this took a long time. Not necessarily because it was along chain, but secondly we had to convince our cadres, like I am indicatingthat we had serious divisions in this regard. Even ourselves before we couldtake that decision as the High Command, we were seriously divided, we had todebate over the issue until finally we had the majority that was for the decision,and amongst the cadres as well, there were those initially who opposed it andthis opposition was also reflected later on when we integrated into the DefenceForce. Some of the members refused to integrate and we had to persuade themand the last group was only integrated last year, we are still continuing tomake an effort to make sure that even those who have not yet integrated, mustbecome part and parcel of the process. I can assure you that we have made aneffort since 1994, even to date, if we can get an indication possibly that thereare some APLA members that are thinking differently from what the High Commandthought and the PAC thought initially, we will take it upon ourselves to makesure that they tow the line.
CHAIRPERSON: General, APLA, does it stillexist?
MR FIHLA: APLA still exists in as far as integrationis concerned.
CHAIRPERSON: But it doesn't have its formalstructures in place, etc?
MR FIHLA: No, that structure is now part andparcel of the Defence Force.
CHAIRPERSON: Yes.
MR FIHLA: But within the Defence Force, westill remain an entity to make sure that everything that pertains to APLA isaddressed.
JUDGE KHAMPEPE: You no longer have the Offensive,the Repossession and the other Units?
MR FIHLA: Not at all, we are part and parcelof the government structures now, members of the Defence Force.
JUDGE KHAMPEPE: Thank you.
MR VAN RENSBERG: Yes, you have heard the evidenceof the applicants, I think it was the first applicant who said that, or at leastimplied that he never got that instruction because he was in jail at the time. The question is what are you, or what have you done, what are you doing to makesure that the people who are still in jail and many of them are perhaps nowmaking application for amnesty, that they have received the orders to stop thearmed struggle?
MR FIHLA: We made a lot of effort, even wewent to an extent of visiting some of the members who were in prison as wellincluding the applicants themselves, I think I have been in contact with thefirst applicant as well, even as late as when was it, last week, if I am notmistaken, so we have made an effort to make sure that we get into contact withall former APLA members wherever they are.
MR VAN RENSBERG: Are you saying that you,yourself, gave the order to the first applicant that the war is over now?
MR FIHLA: I didn't, because I was not directlyresponsible for him.
MR VAN RENSBERG: If I understand your evidencecorrectly, you said you never had any knowledge of this specific attack thatwe are talking about, until after it had already happened?
MR FIHLA: Yes.
MR VAN RENSBERG: That definitely was not thecase with Mr Mpahlela, is that not so, he knew about the attack?
MR FIHLA: It was, it was the case as well,because Mr Mpahlela was not a Regional Commander, he was a Director of all Operations. Regional Commanders were reporting to him and telling him what they intendedto do, and his responsibility was to ensure that those operations fell withinthe mandate and guidelines of APLA and the PAC.
MR VAN RENSBERG: I see, so Mr Lethlapa Mpahleladid know about this attack?
MR FIHLA: He did know about the attack yes,because he gave the authority to go ahead.
MR VAN RENSBERG: Do you know if Mr Mpahlelahas made application for amnesty?
MR FIHLA: I am not too sure whether he hasfinally did it for this one specifically but I know that he did apply for anumber of other operations were he was directly involved, but in terms of thisone specifically, I am not too sure.
MR VAN RENSBERG: Do you know what positionMr Mpahlela is holding at the moment?
MR FIHLA: Mr Mpahlela has not integrated,he is in the PAC.
MR VAN RENSBERG: Is he a politician, stilla politician?
MR FIHLA: Yes, but he doesn't hold any postwithin the PAC.
MR VAN RENSBERG: I see. Just a last question,may I ask if you yourself, has made application for amnesty?
MR FIHLA: I did make an application for amnestyand it was turned down.
MR VAN RENSBERG: I see. No further questions,thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you Mr Van Rensberg. MsMtanga?
MS MTANGA: No questions, Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Mr Mbandazayo, do you have anyre-examination?
MR MBANDAZAYO: None Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Judge Khampepe, do you have anyquestions?
JUDGE KHAMPEPE: No questions.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: No questions Mr Chairperson.
CHAIRPERSON: Thank you General, that concludesyour testimony, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Thank you Mr Chairperson andHonourable members of the Committee, that is the evidence of the applicants. That concludes the evidence of the applicants, thank you.
CHAIRPERSON: Mr Van Rensberg?
MR VAN RENSBERG: Thank you Mr Chairman. Atthis stage we are ready to proceed to lead the evidence of the victim, it willonly be one witness, Mr Swanepoel. I don't know if you want us to proceed?
CHAIRPERSON: We could have the evidence nowif possible, thank you.
MR VAN RENSBERG: Mr Swanepoel will give evidencein ... (mechanical problem) ...
MR SWANEPOEL: ... on the Ganula smallholdings.
MR VAN RENSBERG: All right, let us start,on the 27th of April 1993, APLA launched an attack on your farm, is that correct?
MR SWANEPOEL: It was the 28th of April 1993.
MR VAN RENSBERG: 28th of April, could youplease tell the Commission what happened from that morning when you got up?
MR SWANEPOEL: I got up at about five o'clockin the morning and I had a shower, I opened some of the windows in the house,I opened the back door and the front door and I made tea and took my wife sometea in the bedroom. We were sitting on the bed - may I just go back a littlebit, early that morning, just before I got up, the one dog who sleeps in thebedroom with us, there are two who sleeps in the bedroom, one dog rushed tothe window and barked. I got up and I went to have a look, but I didn't seeanything. Then later, I got up and washed and took my wife some tea in bedand while we were drinking tea, I was sitting on her side of the bed, and Ilooked out in the direction of which I would leave the house, I had alreadyput on my socks and shoes and I was weighing medicine for the chickens and Ithen left the house, it was about quarter past six in the morning. In eachhand, I carried a little bowl of medication and approximately 15 metres fromthe front door, I heard a muttering. There was a cement pond surrounded byflowers and I saw man standing, jumping up from the flowers and I actually thoughtit was one of my own labourers and I wondered why he was up so early, what hewas doing on our property so early because it wasn't yet time for work. I openup the cages first thing in the morning and only then do the labourers arriveand the man approached me and said that I should halt. As he approached me, Mr Thobejane also jumped up amongst the flower bed and when the first man wasabout five metres away from me, he aimed a pistol at me and when Mr Thobejanestood up, I saw that he had an AK47. I then stood still, I first wanted torun and then the person with the pistol said I should stand still. As I wasstill thinking what I was about to do, I took the two bowls of medicine andI bent forward and put it down on the path in front of me, he once again toldme to stand still. He then told me to go back to the house and he pushed thepistol in the small of my back and we turned around and walked towards the house. Mr Thobejane walked next to us with the AK47 aimed at the dog, I have a StaffordshireTerrier dog who stays outside the house on the smallholding, and he kept thisweapon aimed at the dog. At the door, the person with the pistol led me inthe direction of the room, we first entered into an entrance hall, we then turnedright into a passage and at the end of the passage, on the right hand side,is the main bedroom. When I got to the bedroom door, I saw my wife standingin the middle of the room and I knew I had to do something. I then jumped intothe room, and as I did so, I slammed the door shut, but as I did so, I hearda shot go off and it missed me by millimetres, it missed my arm. As the doorbanged shut, my wife onto the floor in front of me. I knew that she was dead. I stepped over her, I stepped over her body and went to my safe because I knewthat this was trouble. Whilst I was standing in front of the safe to unlockit, shots were fired at me through the window from outside. By the time I gotmy weapon out of the safe, I heard people shouting at each other outside andthen there was quiet. I first looked out of the window to make sure if therewas anybody outside, there was nobody and then I went out, I left the houseand there was nobody outside.
MR VAN RENSBERG: So were shots fired fromoutside into the bedroom?
MR SWANEPOEL: Yes, one narrowly missed myleg by about 100 millimetres and went into the wardrobe and one missed my headby about 50 millimetres and went into the wall.
MR VAN RENSBERG: Did you then summon the Policeafter that?
MR SWANEPOEL: No, a minute or so afterwardsmy phone rang and it was the neighbour, she was outside and she said that shecould hear shots and what was going on. I told her that we were attacked andthat my wife was dead and I said to her "please just get the Police."
MR VAN RENSBERG: Earlier today we heard evidencethat the applicants were of the opinion that your wife was actually busy summoninghelp by telephone, can you respond to that?
MR SWANEPOEL: There is no phone in the bedroomand I didn't also have a mobile phone.
MR VAN RENSBERG: At the time the shot wasfired which hit Mrs Swanepoel, was she armed?
MR SWANEPOEL: Yes, she had her pistol in herhand, there was only one round in the chamber.
MR VAN RENSBERG: The evidence thus far haspointed out that Mrs Swanepoel shot at the attackers?
MR SWANEPOEL: No, that could not have beenbecause I was actually between her and the attackers in the room, in the doorto the bedroom.
MR VAN RENSBERG: The evidence of Mr Thobejanewas that you locked yourself in the bedroom and that he couldn't open the doorand that is also contained in the affidavit which was handed in as ExhibitA, could you respond to that?
MR SWANEPOEL: No, that is not true. I slammedthe door shut and immediately went to my safe. If I still had to lock the door,the person who had been shooting at me, as I was standing in front of the safe,how would he have been able to shoot at me if I had locked the bedroom door. It all happened so quickly as Mr Thobejane said, it happened so very quickly.
MR VAN RENSBERG: Do you know who it was whofired the shot at your wife?
MR SWANEPOEL: I think, I am assuming it wasthe man with the pistol because there was a cartridge, a bullet, the cartridgeof that, was found in the house.
MR VAN RENSBERG: So that must have been thedeceased Modau?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: You have already said thatyou are a chicken farmer, what was in the safe at that stage, at the stage whenthe attack on your house was carried out?
MR SWANEPOEL: Weapons and cash.
MR VAN RENSBERG: What kind of weapons andhow much cash?
MR SWANEPOEL: I had three long rifles andabout R15 000 in cash.
MR VAN RENSBERG: Did you have the impressionthat the attackers had forced you into the bedroom?
MR SWANEPOEL: Yes, because the person hadpushed the pistol into my back and had led me to the room like that.
MR VAN RENSBERG: Please tell the Commissionwhat is your view as to why they did this?
MR SWANEPOEL: I can only imagine that theywanted to commit a robbery because if they wanted to kill me, why didn't theydo that earlier?
MR VAN RENSBERG: Were any words uttered byany of the attackers, did they say for instance that they were looking for weaponsor cash?
MR SWANEPOEL: No.
MR VAN RENSBERG: Was there anything whichhad prevented or would have prevented the attackers from killing you if thatwas their intention?
MR SWANEPOEL: No, nothing. Because as I havealready mentioned, if they had wanted to kill me, then they could have doneso earlier that morning when they were at the window and for instance when theyled me back into the house, they had opportunity to do so.
MR VAN RENSBERG: So, if I make the correctinference from your evidence, you agree with the finding of the Criminal Courtthat they were also guilty of an attempted robbery?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: And it is largely as a resultof your evidence and the surrounding circumstances on the basis of which theCriminal Court came to such a finding?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: You heard and it also appearsfrom the affidavits of specifically the first applicant and also his evidenceand also the other statements forming part of the Bundle, that the attackershad certain information that your home was the regular meeting point for rightwing people, people who had right wing political convictions in the first placeand secondly that you were a member of the Afrikaner Weerstandsbeweging, AfrikanerResistance Movement and also that you didn't like black people, what do yousay about this?
MR SWANEPOEL: This is totally untrue. I haveno links with any political bodies and my business is exclusively done withblack people and I wouldn't allow my business to suffer by such things.
MR VAN RENSBERG: Let's talk about the effectthat this attack had on your business, could you tell us?
MR SWANEPOEL: I had to cancel my order, thenext order of chickens immediately because I was alone and I had to make allthe arrangements for the funeral and everything and from then onwards, my salesjust declined because black people told me that they were now scared, afterwhat had happened and since then, my business actually plummeted by about half.
MR VAN RENSBERG: You actually suffered financialloss as a result of this?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: At the time of the attack,did you still have children at school and in your care?
MR SWANEPOEL: Yes, I had a son who was instandard 9, he was at boarding school in Tzaneen.
MR VAN RENSBERG: Could you perhaps tell uswhat the effect was of wife's death on this son of yours?
MR SWANEPOEL: He blamed me, he blamed me fornot stopping these people, he was very close to his mother, he was the youngestchild still at home and that evening, he slit his wrists and two years later,also on the 28th of April, he took his own life.
MR VAN RENSBERG: Would one then be correctin inferring that your son could never actually deal with this attack?
MR SWANEPOEL: No, he never could.
CHAIRPERSON: Mr Swanepoel, would you liketo have a short break?
MR SWANEPOEL: It is all right.
MR VAN RENSBERG: Mr Swanepoel, what is yourfeeling today about the applicants who testified here today? I would like youto tell the Commission specifically whether you have any fear for the futureif they succeed in their application for amnesty?
MR SWANEPOEL: I certainly have a fear becausefirstly I am still continuing with the business and it is possible at any timethat they can come back to finish what they had started. Whether I oppose theapplication for amnesty or not, I think they will definitely come back.
MR VAN RENSBERG: Do I understand you correctlyif you say that you don't believe that the only motivation for the attack onyourself as a target was as the applicants had testified, that it was purelyfor political reasons?
MR SWANEPOEL: No, I believe that.
MR VAN RENSBERG: Is there anything that youwould like to add to your evidence?
MR SWANEPOEL: I may just mention that abouttwo weeks after the attack took place, I think it was about two weeks, two orthree weeks, I was summoned by the Security Police to Tzaneen, they told methey couldn't speak to me over the phone, I had to come and see them personallyand they asked me whether I couldn't perhaps stop my business activities inthat area because a certain Mr Baloyi, Jameson Baloyi, had told the SecurityPolice that if I don't cease my business operations in that area, that he wouldtake me out of that area.
MR VAN RENSBERG: Is that information givento you by the Security Police?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: Do you know this Mr JamesonBaloyi?
MR SWANEPOEL: No, not at all.
MR VAN RENSBERG: You heard the evidence beforethe Commission that Jameson Baloyi was one of the people who gave shelter tosome of the attackers?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: What is your reaction tothat and what is your attitude towards Mr Baloyi's threat?
MR SWANEPOEL: One thing I can't understandis why has it never been mentioned in any case, if this man can utter such athreat and this is known the Police, I can't understand what would stop himfrom carrying this threat or his activities.
MR VAN RENSBERG: Just two final aspects. You have heard the evidence of the first applicant, that when you came out ofthe house on that morning, that you had a firearm in your hand?
MR SWANEPOEL: No, that is totally untrue. It was only my wife who had a pistol and there is no other pistol in our house,or there wasn't. They said that she had the pistol in the house, so there isno way that I could have had the pistol with me as I left the house.
MR VAN RENSBERG: You were present during thecriminal trial of the applicants after you had testified, is that correct?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: My question is this, todaywe heard that the attack was planned and executed against you purely as a resultof a political motive. Did this political motivation, was this raised at allduring the criminal trial before conviction?
MR SWANEPOEL: No, not once. It was only mentionedafter they had been convicted and before sentence, then they said that it waspolitically inspired.
MR VAN RENSBERG: What is the inference thatyou draw from that?
MR SWANEPOEL: I say it wasn't politicallyinspired, it was murder and robbery.
MR VAN RENSBERG: Thank you Chair, no furtherquestions.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Do you have any cross-examinationMr Mbandazayo?
CROSS-EXAMINATION BY MR MBANDAZAYO: Chairperson,I don't think I have much except I would like to say to Mr Swanepoel, acceptmy condolences for the loss of your wife and the pain which you went throughduring this incident. Mr Chairperson, I would not like to take him throughall this, I can see that he is still in grief whenever (indistinct), but I wouldlike to ask one question, it relates to the trial. Do you agree with me thatat the trial they denied that they were ever involved in the incident, the applicants,they denied that they were ever involved before conviction? It was their defencethat they were never involved in that incident?
ADV BOSMAN: Mr Swanepoel, Mr Mbandazayo isputting it to you that during the defence case they denied that they were everinvolved in this case and he asks whether you agree with that?
MR SWANEPOEL: With the attack that was launched?
ADV BOSMAN: Let me explain to you, in a criminalcase there are two sections, two parts. Firstly you have the evidence whichis led, the State leads evidence and the Defence also leads evidence and afterconviction then there is evidence in mitigation of sentence and Mr Mbandazayois putting it to you that during this first phase, in other words before conviction,the applicants denied any involvement in this incident. Do you agree that thisis what happened?
MR SWANEPOEL: In the first part, well thatdealt with their detention and how they had been assaulted, that is what thefirst part dealt with.
ADV BOSMAN: So you agree that it was onlyduring mitigation of sentence that they conceded that they had been involved?
MR SWANEPOEL: Yes.
MR MBANDAZAYO: Thank you. Thank you Adv Bosman. What you gathered is that what they wanted was to escape any conviction forthat incident during the trial?
MR SWANEPOEL: Yes, I presume so.
MR MBANDAZAYO: You also mentioned that youfear that they might come back and finish what they started and you also mentionedthat Jameson Baloyi made a threat. Am I correct to say that since 1993, itwas two weeks after the incident, no attack was ever carried against you againdespite Mr Baloyi being out, free?
MR SWANEPOEL: Yes, there was no attempt, butwhat I was saying once they get amnesty and they are out, won't they carry onwith the act that they were busy with?
MR MBANDAZAYO: You have heard what they saidbefore the Committee, that what they did was politically motivated and thatnow they are part and parcel of the new dispensation and that the organisationto which they belong, which is part of the government and also APLA has integrated,is not that enough to allay your fears?
MR SWANEPOEL: No, not for me.
MR MBANDAZAYO: I have no further questionsChairperson, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Ms Mtanga?
MS MTANGA: No questions Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Any re-examination Mr Van Rensberg?
MR VAN RENSBERG: No questions, thank you MrChairman.
NO RE-EXAMINATION BY MR VAN RENSBERG
CHAIRPERSON: No questions from Judge Khampepe? Any questions? Thank you Mr Swanepoel.
WITNESS EXCUSED
MR VAN RENSBERG: No further evidence willbe led, thank you Mr Chairperson.
CHAIRPERSON: Can we now take the lunch adjournmentand we will have submissions after the lunch adjournment at two o'clock? Wewill now take the lunch adjournment and recommence at two o'clock or earlierif possible, quarter to two if possible, let's try to aim for quarter to two,thank you.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: Mr Mbandazayo, have you got anysubmissions to make?
MR MBANDAZAYO IN ARGUMENT: Yes Chairperson. Chairperson, I wouldn't like to bore you with the requirements of the Act, goingthrough the requirements of the Act, suffice to say that it is my submissionon behalf of the applicants that they have met the requirements of Section 20(1)and (2), that they were quite clearly acting on behalf of APLA, a publicly knownpolitical organisation and a liberation movement which was engaged in a politicalstruggle against the State at that time.
I also submitthat the applicants did not act for personal gain or out of personal malice,ill-will or spite against the deceased and the victims. It is quite clear thatthey had no personal knowledge except to know that the farm belonged to him,and that they had merely gone there on behalf of the organisation. Chairperson,I would deal with the evidence briefly of the first applicant. The first applicantput it clearly that the Commander and the second applicant, Donald, made reconnaissanceand they came with the information that the place is frequented by right right-wingersbecause they went there to do reconnaissance for their attack. More above thefact that they were also the farmers in terms of the APLA and PAC policies,they were the targets, but they had this additional information that also itis frequented by right right-wingers. It is clear that, it is not becausethey went to attack there because it was frequented by right right-wingers,they went to attack because it was within their policy to attack farmers.
CHAIRPERSON: Yes, but I think also from whatI gathered although it wasn't specifically said was that that sort of informationwas obtained from interviewing workers, etc, so that information might merelybe the opinion of a worker and as such, it could be quite incorrect. It mighthave been frequented by people, but whether they were right right-wingers ornot, was the opinion of the person supplying the information to the Recce team,but I take your point, you are saying that even if they didn't have that information,they would have attacked.
MR MBANDAZAYO: Yes Chairperson, in any event,that was additional information which they had, which might not be correct Chairperson,but the fact is that they did not go to attack because it was frequented byright right-wingers, but it was information they gathered when they went todo, to make reconnaissance for their attack. Of course definitely they wouldnot just go there and attack, they have to look at everything, whether it ispossible for them to be able to come back safe and all those things.
CHAIRPERSON: Yes, because I think on the evidencebefore us, we are certainly not in a position to find that it was frequentedby right right-wingers, particularly in the light of Mr Swanepoel's evidencewho says he wasn't politically affiliated.
MR MBANDAZAYO: Yes Chairperson, I agree withyou fully that there is no concrete evidence that it was frequented by rightright-wingers, but as I put it that it was not the case that the attack wasbecause it was frequented by right right-wingers. Chairperson, coming to the- and also Chairperson, all the people in line of command, Lethlapa Mpahlelawho gave authority, I need not go to that, the Committee knows about LethlapaMpahlela, his role within APLA and it has been confirmed by Gen Fihla that itcame to their knowledge after this incident.
Chairperson,coming to the evidence, Chairperson, I wouldn't like to put my neck on the blockon what happened, but I would like the Committee to take into account the eventsof that day, that this incident happened almost six years ago, if my calculationsare correct, 1993, and everything happened very quickly. Chairperson, I neednot preach to you, all of you, you are experienced more than myself, all ofus we can witness one incident here, but if we are called upon to narrate, youwill doubt that other people were present when this happened. Not necessarilybecause they are lying, but it is always the human factor, I don't know, I wouldn'tlike to say what is the reason, but that is my experience.
What I amtrying to say is that there might be some discrepancies as to what actuallyhappened actually there, but the fact is the applicants, they are saying "yes,we did it, it was us, we went there. We committed this offence."
ADV BOSMAN: Mr Mbandazayo, I think the questionis whether all of these discrepancies are of a material nature.
MR MBANDAZAYO: Yes Chairperson, through youChairperson, I am just going there Chairperson, that definitely it is my submissionthat the discrepancies which are there, are not of material nature that theChairperson would see that they are make or break. Those are minor discrepancieswith regard for instance if I may take the evidence of Mr Swanepoel, takinginto account the situation in which he was, terrified, pointed with a gun, alsodefinitely the Committee have to take into account his observation would beat least, definitely somebody in his position won't be to be able to say thatthe applicant, especially the first applicant, that he was the person who waspointed, except to say that because the applicant has admitted that he is theperson who was carrying an AK47. For instance if I can take to, it was notdisputed though he disputed in his evidence that the shooting, the Commanderwent outside, on the outside window, there was a shooting and then he came backinside the house and also there was a shooting with the wife of the applicant.
If one takesthat into account, it may not have been disputed because the victim was goingto testify, but if one takes that into account, one would come to what I havealready said that it is always the human factor, not necessary even to say,I am not saying Mr Swanepoel is lying, what I am saying it is how he recollectsthe events of the day and which is the same with the applicants, it is how theyrecollect the events of the day as to how it happened. It is therefore Chairperson,my submission that the differences in what happened on that day in questionexactly in the house, as whether they shot whilst Mr Swanepoel was running insidethe house and trying to close the door and whether he was shot before he wentinside the house. What I am trying to say is that the fact of the matter isand it is not disputed that the deceased was shot with a pistol, she was notshot with an AK47 and the person who was carrying a pistol, was the Commander,Prince and that the first applicant was carrying an AK47. That Chairperson,I think is very important. I would understand it if the victim, it would sayit was material if the applicant was saying that he was shot with a pistol,whilst he was shot with an AK47.
CHAIRPERSON: What you are saying is thesediscrepancies, none of them can lead one to deduce that the applicants wereplaying down any role that they might have played?
MR MBANDAZAYO: Exactly Chairperson, becauseit remains ...(intervention)
CHAIRPERSON: And you are saying if he wasarmed with the pistol and then said he was shot with an AK47, which was foundto be incorrect, then one could arrive at the conclusion that he intentionallymade that statement to protect or lessen his liability, but that is not thecase with these discrepancies?
MR MBANDAZAYO: Yes.
CHAIRPERSON: On both versions it seems clearthat the bullet was fired from a pistol and that Modau had the pistol?
MR MBANDAZAYO: Yes Chairperson, and also Chairperson,it would have been easy for the applicant to say look, "I did not evenattempt to kill Mr Swanepoel". On his own he said "my firearm jammed,I wanted to kill him when he was running." It was easy for him becausenobody knows, to say, "look, I did not even attempt to do anything"and it is my submission Chairperson, that taking into account the events andwhat has been said to this Committee even by Gen Fihla, it is clear that theirmotive was to attack Chairperson. If they went there for robbery, it is mysubmission that I don't see any reason for them not to shoot their way throughthat door, and go and take whatever they wanted to take, if that was the case.
And alsoChairperson, the fact that the deceased had a firearm, it is clear though MrSwanepoel said the safe was locked, one - unfortunately, I didn't want to takehim through the events of the day because I could see that it is taking himback, but it is clear that definitely I suppose that also the firearm of thewife was kept in a safe, and it will be my submission that definitely, I don'tthink at that time, it was locked, the safe, as it was put here that he wastrying to open the safe at that time. I am not trying to say that he is lying,but I what I am trying to say is that this all revolves around the fact thatit is a human factor, because things happened a long time ago and all this happenedfast. Therefore Chairperson, it is my humble submission taking into accountthe previous decisions of the Committee, not necessarily this Committee on someof the issues involving farm attacks, which one I would quote, the DannysideFarm which happened on 19 November 1992, it happened when Adv Bosman was involvedin East London, which somebody, Mrs - Leon Pretorius died as a result of APLAattacks on the farm which of course was spelt out it was the policy.
Chairpersonwithout boring you, it is my submission that the applicants have made theircase in respect of the requirements of the Act and that on that basis, it istherefore my humble submission that they should be granted amnesty as appliedby them. Chairperson, unless the Committee wants me to address it on any specificissue?
CHAIRPERSON: Thank you Mr Mbandazayo. MrVan Rensberg?
MR VAN RENSBERG IN ARGUMENT: Thank you MrChairman. Mr Chairman, from the time that the applicants completed their applicationsfor amnesty, they have consistently stuck to the story that the attack on thefarm was politically motivated. That version was repeated here today and Ihave to admit, in spite of cross-examination, they have stuck to their story. That however, is not the end of the story. There are a number of factors whichactually point to this attack being or the motivation for the attack, beingpersonal gain in the form of robbery. To mention a few, these persons all theapplicants, were convicted of attempted robbery and they were convicted on theevidence of the victim, Mr Swanepoel who related obviously to the Court thecircumstances surrounding the assault on the farm. The only one which was there,except for the applicants, was Mr Swanepoel. He himself today, has again reiteratedthe fact that in his personal opinion, he is of the opinion that the motivationfor the attack was in fact robbery. It is strange that this political motivationwas not raised during the defence of the applicants, the defence of the applicantsduring the criminal trial.
At this stagefurther, we've got to accept that ...
CHAIRPERSON: It wouldn't have been a defence,would it?
MR VAN RENSBERG: Yes, it wouldn't have beena defence, I have to concede that Mr Chairman, but we have seen the attitudeof the applicants. I got the impression that they were quite, let's put itthis way, that they are not ashamed of what they had done, that they did itnot for themselves, but in spite of that fact, they elected not to use thatbeliefs or the strength of the belief ...
CHAIRPERSON: I think what is quite clear,what must have happened at the trial was they first stated, from the answergiven by Mr Swanepoel, that they weren't there, they denied that they took partin the robbery?
MR VAN RENSBERG: Yes.
CHAIRPERSON: The whole first portion of thetrial up to conviction was relating to what seemed probably voluntary assaultsrelating to confessions and so they were then endeavouring not to get convicted,it is very common in very many criminal cases, I am sure you are aware of it,then as soon as they are convicted, they raise the political motivation?
MR VAN RENSBERG: Yes, that I have to concede.
CHAIRPERSON: In mitigation of sentence.
MR VAN RENSBERG: I have to concede, exceptto say that it, if they did raise the defence of political motivation, thatwould have perhaps cleared them on the charge of attempted robbery.
JUDGE KHAMPEPE: No, but if they had admittedto having committed any of the offences at all, because once you admit on theattempted robbery, then you've got to admit on the other offences as well, soif they had made any admission, they wouldn't have been able to escape criminalliability, don't you agree?
MR VAN RENSBERG: Yes, I agree with that, yes.
JUDGE KHAMPEPE: So once they were convicted,they were left with no option but then to try in mitigation of sentence andcome out with the political nature of what they had now been convicted of.
MR VAN RENSBERG: Yes, I have to concede thatthat is a possibility, but the other possibility is of course that that factwas only dreamt up afterwards and it was put in their heads afterwards, afterthey had been convicted?
JUDGE KHAMPEPE: That was generally the caseMr Van Rensberg, people will try and escape liability. I am not saying thiswas politically motivated, but in instances where people had been acting onbehalf of these liberation movements, they wouldn't admit the fact that theyhad been acting on behalf of their various armed formations, on behalf of thevarious liberation movements, because that would have entailed having to admitto the commission of a particular offence. They always wanted to escape criminalliability.
MR VAN RENSBERG: Yes.
CHAIRPERSON: Also it gets, I suppose one couldwrite an article on it, but not knowing what the evidence was at that trial,a group of people go into a house armed with guns, shoot people, a person getskilled, they get arrested, they get charged with murder, attempted murder, attemptedrobbery, they get convicted of murder and attempted murder and attempted robbery,now what - if I am robbing you and I hit you over the head and take your wallet,I don't get convicted of assaulting you and of robbery, because the hittingover the head is part of the robbery.
MR VAN RENSBERG: Yes.
CHAIRPERSON: Now wasn't the whole attack onthe farmhouse, part of the robbery, in other words was that attempted robbery,is it not a type of duplication of charges?
MR VAN RENSBERG: Of conviction?
ADV BOSMAN: Mr Van Rensberg, I just want toadd this to what my two colleagues have said, if you look at the totality ofthe evidence, surely the fact that they had Chinese stick grenades, the natureof the weapons that they had with them and the evidence of Gen Fihla, if youlook at all that, surely that is certainly not inconsistent with the fact thatthey were political activists and if you accept that they were political activists,would you then still argue strongly that this defence or rather the facts raisedin mitigation, are not consistent ...
MR VAN RENSBERG: Yes, Mr Chairperson, I amafraid I still have to argue that point on the basis that if we are to believethe applicants, then the reason why they went to the farm was to kill the occupantsof the farm and as Mr Swanepoel testified, there was actually nothing that stoppedthem from actually killing him. From that I deduct that it was possibly notthe motivation of these assailants to actually kill these people and that iswhy I deduct that there must have been another purpose to the attack. I amnot prepared to argue this point much further and I leave it to the discretionof the Committee.
May I justadd another few factors which I consider to be pointers in the support of mytheory that they in fact went there to rob the place namely the fact that atthis stage the Committee have to accept that there is absolutely no basis onwhich they identified the target being a political target. Mr Swanepoel testifiedthat he had actually no political affiliations, that he was definitely not amember of the AWB and that it was actually his livelihood to trade with blackpersons. He definitely did not hate them. If that motivation is then negated,it only leaves one other possibility and that is the fact that he was a farmer,a chicken farmer and I would suggest that it was then common knowledge thathe would have guns and a large amount of cash on the farm.
Secondly,Mr Swanepoel's evidence was quite direct on the point that they directed himto the bedroom where the safe was located. He did not walk in that directionvoluntarily. This points to the indication that the assailants, the applicants,had prior knowledge of where the guns and the cash would be kept in that house. I want to step off from that specific point and come to my learned friend'sargument that there was no material discrepancies between the versions of theapplicants. Unfortunately Mr Chairman, I cannot accept that suggestion. Iam of the opinion that at least for Mr Thobejane's part, I got the impressionthat he tried to make the case against him, or his involvement in that, in factas little as possible. He fabricated a gun to be in the possession of the farmerwhen he walked out of the house. I think there can be little doubt that therewas no gun at that stage. He tried to put as much distance between himselfand the person who actually killed Mrs Swanepoel, he said he was preoccupiedby trying to shoot Mr Swanepoel in the circumstances, but had to concede thatit actually took place in the very same room, there was no different runningaway and shooting. The two assailants were next to each other at the entranceof that specific main bedroom, that is the evidence of Mr Swanepoel and again,Mr Swanepoel testified, there was absolutely no reason why they did not actuallycarry out their, or why they couldn't carry out their mission, namely to shootthe both of them.
To sum uptherefore, I would suggest that there was in fact attempts from the witness,specifically Mr Thobejane, not to put the real evidence before this forum, thathe in fact in that sense, failed to make a full disclosure. Also referringto the involvement of a certain Jameson Baloyi which he admitted at a very latestage, and under cross-examination to be one of the persons harbouring theseassailants.
JUDGE KHAMPEPE: What has that to do with regardto the offences for which they are seeking amnesty, the harbouring by Mr JamesonBaloyi? He did not participate in the murder of Mrs Swanepoel, nor the attemptedmurder of Mr Swanepoel?
MR VAN RENSBERG: Well, at the time he wasat least harbouring and hiding these assailants which was an offence at thetime.
JUDGE KHAMPEPE: Yes, he merely gave them accommodation. To them, that was not an offence?
MR VAN RENSBERG: Yes, thank you Mr Chairperson. The last aspect I want to address you on is the point that was raised earlierduring my cross-examination with Mr Thobejane and that is the fact that he consequentlyomitted to bring the fact that he was in fact convicted for attempted robbery,under the attention, or to the attention of this Committee. If we look at hisapplication, and specifically paragraph 9(a) thereof, it was required of theapplicant to furnish sufficient particulars of the acts, omissions or offencesassociated with a political objective in respect of which amnesty is soughtand at (i) he then stipulated murder, attempted murder, possession of explosives,possession of arms, possession of ammunition, the attempted robbery is specificallyexcluded there from.
JUDGE KHAMPEPE: Isn't it included under "etc"?
CHAIRPERSON: No, it is not in 9.
JUDGE KHAMPEPE: Are you dealing with 9(a)? Yes?
MR VAN RENSBERG: Yes, from 9(a), obviouslythere is no mention of "etc". If we can turn to the specific paragraphthat you are referring to, it is paragraph 12(e), the question is "if prosecutionfollowed, state (e) the offence in respect of which found guilty and sentenced,if applicable". There he listed murder, attempted murder, possession ofammunition, possession of machine guns, possession of explosives, possessionof pistol, etc. I am firmly of the belief Mr Chairperson, that that etc, canin no way cover him for his, or can be interpreted to include his applicationfor amnesty for attempted robbery as well.
CHAIRPERSON: But he doesn't apply for attemptedrobbery?
JUDGE KHAMPEPE: He is not applying.
MR VAN RENSBERG: Yes, that is so.
CHAIRPERSON: I mean and when you questionedhim on it, he said that well, there wasn't any robbery, they never had any intentionetc, but my impression is well, he hasn't applied for it.
MR VAN RENSBERG: Yes, that is exactly thepoint I am trying to make. If I understand the member of the Committee's questioncorrectly, it can perhaps be read, the "etc" can be interpreted toinclude armed robbery and it is that question that I am addressing now.
JUDGE KHAMPEPE: That has nothing to do withthe acts for which amnesty is being sought for by the applicant, Mr Thobejane.
MR VAN RENSBERG: Yes. To close off then thepoint that I am trying to make is that at least for the count of attempted robbery,Mr Thobejane has not made application for amnesty and it is therefore not withinthe powers of this Committee to grant him amnesty for that specific offence. Thank you very much.
CHAIRPERSON: Thank you Mr Van Rensberg. MsMtanga?
MS MTANGA: Chairperson, I will leave thismatter in your hands.
CHAIRPERSON: Any reply Mr Mbandazayo?
MR MBANDAZAYO IN REPLY: Yes Chairperson, justbriefly. Chairperson, I think I will start with the question of the gun. Ithink Mr Thobejane made it clear that for instance he was not sure about whatit was, because he thought, the other, that it was a camera and it is clearfrom what he told the Committee that the dogs were barking, so definitely thoughhe did not put it in so many words, he expected Mr Swanepoel to come up witha gun and in fact he saw a gun. Under cross-examination he admitted that hewon't dispute that it was not a gun. So definitely if he was fabricating that,he would have stuck it out and said "look, I don't care who says what,he was carrying a gun."
Coming tothe question of that, Chairperson, I would not go to the question that theydid not make out the question of political motivation because Mr Swanepoel wasnot a right-winger, he was not belonging to any political organisation, it hasbeen stressed that irrespective of what, the farmers were the targets. Chairperson,I would like to come to this question of armed robbery. I am sure I would beseen to be monotonous to the Committee, I have been arguing this question, theapplication in respect of the applicants. It is always you find that mostof the time these people make them in jail and they don't understand the wholeprocedure of the court, when they are being convicted and all that, they don'tunderstand the whole of this thing. Most of the time you find that they alwaysleave out what they are supposed, in fact if you can go to all of them, onehas left something like explosives, the other has not applied for another thing,because the problem is that it is read to them, it is Greek to them what isbeing talked about in court, all this being separated, all these crimes, andnow it creates problems when he is not assisted.
CHAIRPERSON: It would seem on their own version,that they wouldn't have applied for amnesty for attempted robbery because theysay they never had any intention. It is not for us to - is it - let me ask,put it this way, is it for us to now rectify a conviction that shouldn't havebeen made on their version?
MR MBANDAZAYO: I am coming up to that point,others have put armed robbery.
CHAIRPERSON: Yes.
MR MBANDAZAYO: If I remember very well, myfirst amnesty application Judge Khampepe maybe will remember in East London,we had a similar case of Madenazapo, a guy who was convicted of kidnapping. It so happened that he did not know that he was convicted of kidnapping andI still remember Judge Wilson said so, it was far fetched because it was allin the process of committing the same crime, because they took away the peoplewho were there and at the end of the day, they were blowing, if I still remember,they were blowing a petrol station in Uitenhage and they took away people atgunpoint and they were saving them from being blown up. At the end of theday they were convicted, and they did not apply and the Committee found thatit was part and parcel of the whole process, that was a whole incident. Itis therefore still my argument, and he was granted amnesty, despite not havingapplied for that, because it felt that it was part and parcel and it is stillmy contention even today, that in as much as they don't believe that they were,but still it was part and parcel of the whole incident. That is what I wantedto touch on Chairperson and Honourable members of the Committee, thank you.
JUDGE KHAMPEPE: Did you not in this case fail,therefore, Mr Mbandazayo to bring this particular aspect to the attention ofthe Committee before you commenced leading evidence in respect of in particularMr Thobejane, because what is confusing is that in as much as Mr Thobejane hasnot specifically mentioned this offence even though they all did not believethat they should have been convicted in respect of this offence, because itwas not their stated objective as they believed at the time, the other applicantshave indicated that they wanted amnesty in respect of the offence of attemptedrobbery. I think Mr Mukhawana and the other applicant have done so, knowingthat this is something that as a result of the incident, that in any event hasbeen dealt with in their amnesty application, and it would not be like allowingyou to apply for an act that you had not originally applied for, within theperiod that you are allowed to, why was it not brought to our attention? Shouldn'twe blame you more than blaming the applicant?
MR MBANDAZAYO: Chairperson, I want to concedeon that Chairperson, I want to concede definitely Chairperson, I did not pickit up in fact Chairperson, I did not realise that it was not amongst the - whenI looked at the application, I looked, I think I looked at the others, so Ithought that also it is covered on that, that one I concede Chairperson, thatI also failed to pick it up Chairperson. I only picked it up, in fact I wantedto object to my learned friend when I realised that, I thought that he studiedthe application, now I realise that he is the only one who does not have itin the application Chairperson. That I concede Chairperson, I thought thatbecause I saw it in the others, then it was automatically also present in hisapplication, I concede that Chairperson, yes.
CHAIRPERSON: Thank you. We will reserve ourdecision in this matter and hope that it would be handed down in the very nearfuture. That brings our role to an end, we will now be adjourning. I wouldjust like to thank everybody who made it possible for this hearing to take placehere today. We have been here before and enjoyed our stay. I would like tothank Mr Van Rensberg and Mr Mbandazayo and Ms Mtanga for their assistance inthe matter and the Interpreters for the work that they have done, the SoundTechnicians, the security provided for us, very efficient and the catering,the Logistics Officer, I would also like to thank very much as well, and thetelevision crew. Thank you very much indeed and we will now adjourn and thatdecision will be handed down within the very near future.
HEARING ADJOURNS
