CHAIRPERSON: Good morning. We want to start with the proceedings. Just for the record it's Thursday 3 August 2000. We are carrying on the hearings at the JISS Centre in Johannesburg. The Panel is constituted as has been placed on the record earlier. We are hearing the applications this morning of Mphoreng, amnesty reference AM2740/96, Tanda Kubona, reference AM2745/96. Just for going on the record, Mr Maleka on behalf of the applicants, would you just put yourself on record?
MR MALEKA: Thank you Mr Chairperson, my name is Tiyo Maleka, I appear for the applicants in this amnesty application. Thank you.
CHAIRPERSON: Thank you Mr Maleka. And then the Leader of Evidence?
MS MTANGA: Chairperson, I am Lulama Mtanga, thank you.
CHAIRPERSON: Thank you ma'am. Mr Maleka, do you want to deal with any preliminary issue or do you want to have your client sworn in and proceed to present his evidence?
MR MALEKA: Thank you Mr Chairperson, I do have one preliminary matter that I would like us to deal with. The application for amnesty was in respect of two applicants namely Mkulisi Ernest Tanda Gubola and Motlane Atasius Mphoreng. Unfortunately, I haven't been able to get in touch with Mr Mkulisi Tanda Gubola although I do have instructions to represent him as well and it seems he is not present today and in the light of that we would only proceed with the application of Mr Motlane Mphoreng.
CHAIRPERSON: Thank you Mr Maleka. Do you want Mr Mphoreng to take the oath?
MOTLANE ATASIUS MPHORENG: (sworn states)
EXAMINATION BY MR MALEKA: Thank you Chairperson. I will now lead the applicant in his amnesty application.
Mr Mphoreng, you are the applicant in this matter and you are making an amnesty application in respect of a murder of a security officer in Orlando East during 1986, is that correct?
MR MALEKA: And is it also correct that at the time you were a member, an executive branch member, of the Azanian Students Movement as well as the Azanian Youth Organisation?
MR MALEKA: And is it also correct that these two bodies were affiliated to the Azanian People's Organisation?
MR MALEKA: Could you briefly explain the circumstances which led to this incident of the killing of the security officer?
MR MPHORENG: In 1986 I was a member of the Azanian Students Movement which was the student wing of AZAPO. My understanding of politics at that time was that we were fighting the apartheid regime of that time and in that process of fighting against that government I was also convinced that to fight with arms was one of the things that we could use to achieve our main objective, that is liberation.
What resulted in the death of the security guard was that we wanted to disarm the police officers so that we could get weapons for ourselves. I thank you.
MR MALEKA: You mention that you had to receive weapons on behalf the organisation. What was the purpose of obtaining those weapons?
MR MPHORENG: The purpose of getting these arms was to use these weapons to fight for liberation.
MR MALEKA: And did you at any stage maybe receive any military training and if so, when and where? Could you briefly explain the background?
MR MPHORENG: I received my military training in 1986 around February in Glamini, that is one of the sections in Soweto. I was trained by comrade Tami Makegwa together with comrade Sam Siyema.
MR MALEKA: And these comrades that you have mentioned, Tami Makegwa and Sam Siyema, which organisation did they belong to?
MR MPHORENG: Comrades Siyema and Tami Makegwa were leaders in AZAYO, AZAYO was the youth wing of AZAPO at that time.
MR MALEKA: And was AZAPO aware of the activities of the two comrades and other members of the organisation?
MR MPHORENG: Since AZAYO was the youth wing of AZAPO, AZAPO was well aware of the activities of AZAYO.
MR MALEKA: So the training that you received you received in underground inside the country, is it correct?
MR MPHORENG: That is correct, I received my military training inside the country.
MR MALEKA: Could you briefly explain the training that you received and the mandate that was given to you?
MR MPHORENG: I received military training which included the use of small firearms like pistols and revolvers. We were also trained to disarm a target. We were also taught that when we are given orders we should at all times carry out that order the way it was issued.
MR MALEKA: Did you have a discretion in executing the order or not?
MR MALEKA: The way we were taught, the military order was standing and you should carry it out the way it was issued.
MR MALEKA: So were you, after receiving training, given an assignment to perform?
MR MPHORENG: After I had received my military training we were given some tasks to perform.
MR MALEKA: What was your assignment, the first assignment that was given to you?
MR MPHORENG: My first assignment was to disarm the security guard.
ADV SANDI: Sorry, you keep on talking about security guards. Who were these security guards? Were they working for a private company or can you just expatiate on that?
MR MPHORENG: This security guard was working for a private company.
ADV SANDI: Do you know the name of that company?
MR MPHORENG: No, I don't know the name of that company.
MR MALEKA: Thank you Chairperson. Mr Mphoreng, these security guards who came to escort the delivery vans, were they armed or not?
MR MPHORENG: This security guard was armed.
MR MALEKA: So the specific assignment to you was to disarm this security officer?
MR MPHORENG: The assignment that we were given by our commander was to disarm him and to kill him.
MR MALEKA: Can you repeat the last portion? Your assignment?
MR MPHORENG: The assignment that we were given was to disarm the security guard and to kill him.
MR MALEKA: So when you say it was to disarm and kill him, did you really want to disarm him and kill him and how would you go about executing the mission? Even if he didn't resist would you still kill the officer, the security guard?
MR MPHORENG: The instructions were very clear, that is to kill him and to disarm him.
MR MALEKA: So did you do any reconnaissance of the security officer before carrying out that mission?
MR MPHORENG: Yes we did undertake reconnaissance before we attacked the target.
MR MALEKA: And what was your specific role in this incident that you played?
MR MPHORENG: My role at the scene was to be a cover. When this target was attacked I was armed with a firearm but I was standing on the side but my fellow comrade attacked him while I stood cover for him.
MR MALEKA: Yes, can you explain how this security guard was killed?
MR MPHORENG: When the people he was accompanying were busy offloading the parcels and taking them into the shop, he was standing guard. We were three in this attack, that is myself and my fellow comrades, two comrades. One of my comrades attacked him. I was standing aside. This security guard tried to take out his firearm but before he could shoot my fellow comrade he was shot and immediately after he fell to the ground and one of our comrades took that firearm after it fell to the ground and from there we ran to our getaway car.
MR MALEKA: Did you fire a shot at the security guard?
MR MPHORENG: No, I did not shoot.
MR MALEKA: Who fired the shot?
MR MPHORENG: One of my comrades.
MR MPHORENG: That is Ernest Tanda Kubona.
MR MALEKA: Now you mentioned that when one of your comrades approached the security guard, did he have a firearm in his hand at that stage?
MR MPHORENG: Yes he had a firearm.
MR MALEKA: And what did the security officer do when he saw your comrade with the firearm?
MR MPHORENG: The security guard took out his firearm.
MR MALEKA: And then what happened to his revolver?
MR MPHORENG: After he was shot we took his revolver.
MR MALEKA: Besides the revolver that you took did you take any other items from the scene?
MR MPHORENG: No, we only took the firearm.
MR MALEKA: You never took any money or hijacked the motor vehicle, the delivery truck?
MR MPHORENG: No, we only took the firearm.
MR MALEKA: So what happened to the firearm that you seized from the security officer?
MR MPHORENG: We gave it to our commanders.
MR MALEKA: Together ...(intervention)
MR MPHORENG: We gave it to our commanders, that is Comrade Tami Makegwa and Sam Siyema.
MR MALEKA: Thank you Mr Chairperson.
So the mandate that you executed was in accordance with the instructions which were given to you by your commanders, is that correct?
MR MALEKA: And were you charged for this murder?
MR MALEKA: And then what happened to you?
MR MPHORENG: We were charged and we were given bail and after we were given bail we skipped the country to exile.
MR MALEKA: And how did you skip bail and who helped you to leave the country?
MR MPHORENG: We were helped by comrade Strike who was a leader in the BCMA and this BCMA organisation was still in exile at that time.
MR MALEKA: And did they have a military wing in exile as well?
MR MPHORENG: Yes, they had a military wing in exile.
MR MALEKA: And then this comrade Strike that you mention, where is he today?
MR MPHORENG: He is one of the leaders of AZAPO today, he is a member of the Central Committee of AZAPO.
MR MALEKA: And how do you feel about the incident itself? Before that did you join AZANLA in exile?
MR MPHORENG: Yes, when I arrived in exile I joined AZANLA.
MR MALEKA: Did they know about this incident?
MR MALEKA: So if I understand you correct, your intention was not to kill per se but to disarm the security guard and kill him if he resisted, is that correct?
MR MPHORENG: The instructions that were given by our commanders was to disarm him.
MR MALEKA: And would you say that this was a planned operation with a specific target?
MR MPHORENG: Yes, this operation was well planned because before we undertook this operation we undertook a reconnaissance.
MR MALEKA: Is there anything that you'd like to add in support of your amnesty application?
MR MALEKA: Thank you Mr Chairperson, that is the applicant's application.
NO FURTHER QUESTIONS BY MR MALEKA
CHAIRPERSON: Thank you Mr Maleka.
CHAIRPERSON: Ms Mtanga, have you got any questions?
CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson.
Mr Mphoreng, you say you were given orders to disarm a security guard. Was this security guard identified to you or you had to go and find a target yourselves?
MR MPHORENG: We were not choosing the targets ourselves. Our commanders were choosing the targets and they would give us instructions to carry them out. We were not choosing targets ourselves.
MS MTANGA: How many people were involved in this operation?
MR MPHORENG: We were four in this operation.
MS MTANGA: Who were these people?
MR MPHORENG: That's myself, Ernest Tanda Kubona, Skumbuso and Thabo.
MS MTANGA: What's the surname of Skumbuso?
MR MPHORENG: I don't know his surname.
MS MTANGA: And Thabo's surname?
MS MTANGA: Where is Thabo and Skumbuso now?
MR MPHORENG: Skumbuso is deceased and Thabo is somewhere in Soweto.
MS MTANGA: Was he also charged for this murder, that is Thabo?
MR MPHORENG: No, he was never arrested.
ADV SANDI: Were you the only one who was arrested for this?
MR MPHORENG: No, Tanda Kubona was also arrested.
MS MTANGA: You said you were trained and ordered by Tami Makegwa and Sam Siyema. Where are they now?
MR MPHORENG: They are both deceased.
MS MTANGA: Mr Mphoreng, what was the nature of your order, was the order to go and kill the security guard and take his firearm or was the order just to disarm him and only kill him if he resists?
MR MPHORENG: The main instruction was to disarm him but if he resisted we should kill him.
MR MPHORENG: Yes, he tried to resist because he tried to take out his firearm and that is when he was shot.
MS MTANGA: You said you attacked him while the van that he was guarding, while the people who were in the van that he was guarding were offloading and there were four of you. Can you tell the Committee how exactly were you positioned when you approached and how this went about that he resisted the four people? First, how were you positioned when you were approaching him?
MR MPHORENG: While these other men were still offloading the van he was not doing anything but he was standing aside, standing guard looking at the van. So Ernest Tanda Kubona went straight to him. I came from the side. So when Tanda Kubona pointed a firearm to him to try to take out his firearm and that is when Tanda Kubona shot him.
MS MTANGA: Where were the other two, Thabo and Skumbuso?
MR MPHORENG: Thabo was our driver, he was in the car. The car was a distance from the scene and Skumbuso came with Joey - I'm sorry, that is Ernest.
MS MTANGA: You mentioned that a reconnaissance was carried out for this operation. Who carried out this reconnaissance?
MR MPHORENG: I was one of the people who were involved in reconnoitring together with Tanda Kubona.
MS MTANGA: When you were given this order to disarm this security guard did your commanders tell you what was the reason for targeting that security guard or that van? Was there any particular reason for targeting them specifically?
MR MPHORENG: Yes there were political reasons why this security guard was to be our target. Our organisation, that is AZAPO believed that all the private sector companies were our targets because they were providing the State with finance at that time so to disarm this security guard, that would frustrate the operations of these private companies in the townships.
MS MTANGA: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you Ms Mtanga. Has the Panel got any questions?
JUDGE MOTATA: On point 11(a) of your application form, I think that would be at that page of the application form, you state that the acts were committed in self-defence. Let's start with the self-defence. What were you defending yourself against?
MR MPHORENG: There was a conflict between AZAPO and UDF in 1986 so these two organisations were fighting for political territory so these were arms that we would get, we were going to use to fight the UDF or to protect ourselves against the UDF.
JUDGE MOTATA: Don't you say in the previous page that that conflict existed in the Eastern Cape? Yes, look at 10(b)
"The attack was by members of the UDF and its supporters. These attacks started in the Eastern Cape and in Soweto."
I'm sorry about that, I see there is Soweto. And 10(b):
"every member of AZAPO"
Were they targeted? When you say "every member of AZAPO"?
MR MPHORENG: In 1986 all the members of AZAPO or any person who sympathised with AZAPO became the victim of that conflict between the UDF and AZAPO so as a member of AZAPO you were always in danger of being attacked by members of the UDF.
JUDGE MOTATA: You motivate your application on page 2 of the hand-written annexure 1, a detailed account of your involvement to the Truth and Reconciliation Committee. You say, for instance, that companies and the private sector were supplying the financial muscle to the then government and if we look at this delivery van, were they not delivering goods for the sustenance of the Soweto people and in this instance Orlando East?
MR MPHORENG: Yes that is correct, this van was delivering in the township but the reason why I say the private companies were making business in the township and in return they will beef up the financial muscles of the then apartheid government. I mean that the money that we would get from the profits in the township and the corporated tax, they would use this money to beef up the financial muscles of the then government because these companies were paying corporated tax and that money was going to be used by the then government.
JUDGE MOTATA: Wasn't AZAPO saying that for instance they have to conscientise our people that they should be self-sufficient, self-reliant? AZAPO and all its tentacles, AZANYO for instance? In other words to say to all Blacks you are brothers, you've got a common enemy which would be the Whites?
MR MPHORENG: Yes, those were AZAPO politics at that time, that we as Black people should be politically and economically independent. In our political education they were emphasising this fact but it was not possible at that time because we were under the apartheid regime at that time and we were never given an opportunity to do things for ourselves.
JUDGE MOTATA: Why I'm asking you this is that why couldn't you meet with the UDF and say hey, we are misdirecting our efforts, we are killing each other instead of mobilising our efforts to fight the enemy rather than say we will kill each other, we'll all get arms and kill each other?
MR MPHORENG: What I remember about the ANC is that there were many meetings between the two organisations. I remember attending a meeting that was led by Dr Asvat who was the health secretary of AZAPO. In that meeting Mrs Albertina Sisulu was also present. She was one of the leaders of UDF. In that meeting we were trying to get a solution to this conflict but all these meetings were in vain because the conflict and the violence between the organisations continued.
JUDGE MOTATA: Now coming to your reconnaissance, how many times did you observe this delivery van?
MR MPHORENG: If I remember well we did this four times.
JUDGE MOTATA: Was it regularly at the same time delivering at this place which you ambushed the guard?
MR MPHORENG: This delivery van would deliver in different places near work.
JUDGE MOTATA: Let's now speak of what is before us. I thought we are talking about Orlando East. Yes, I say in Orlando East did you observe it four times in Orlando East?
MR MPHORENG: Yes, we observed this man four times in Orlando East.
JUDGE MOTATA: No, what I wanted you to explain to me is that at this particular shop where you dispossessed the guard, his revolver, did you reconnoitre that it stopped at what times at that particular shop which was the point where you were going to take the firearm?
MR MPHORENG: Our reconnaissance showed us that these people would come and deliver between 10 and half past 10 in the morning and we also observed that these people were not delivering at that particular shop alone.
JUDGE MOTATA: Amongst you, you were covering your other comrades, for instance, Ernest Kubona and Thabo Matlala, why couldn't you just point at him and say hand over instead of killing him?
MR MPHORENG: The reason why he was shot because he tried to resist and if he was not shot he was going to shoot Ernest because Ernest was very close to him and he was trying to take out his firearm.
JUDGE MOTATA: Thank you Chairperson, I've got no further questions. Thank you Mr Mphoreng.
ADV SANDI: Whose getaway car was this, the one you were talking about?
MR MPHORENG: Skumbuso was driving this car in the morning so I think this car belonged to him.
ADV SANDI: But just explain to me, is it not so that the security guard was actually attacked before he drew out his firearm? It would seem to me that he was actually defending himself, what do you expect a man to do? You have a group of four young people who advance towards him, one of them is armed, isn't it a natural reaction that one would draw out his firearm in that kind of situation?
MR MPHORENG: His main task was to stand guard while these people were offloading the van so when he realised that he was being confronted by an armed man he tried to take out his firearm and that was part of his job, he had to do that.
ADV SANDI: Yes, surely when you went there you must have expected that he was going to put up some kind of resistance and most probably draw out his firearm to defend himself?
It's a logical thing to happen.
MR MPHORENG: When we attacked this man we were ready for anything because we knew that he was trained. We were not just attacking an ordinary civilian who had never been trained in the use of firearms. We attacked a person who was fully trained.
ADV SANDI: Yes but I didn't get clearly what your answer was to Judge Motata's question, can you repeat what was your answer to that?
MR MPHORENG: The reason why this man was attacked is because he had already taken out his firearm. When he realised that one our comrades was holding a firearm he took his, so if he did not take his firearm out, he wouldn't have been shot and I still believe that if my fellow comrade did not shoot him, he could have been shot because he was very close to this security guard.
ADV SANDI: Thank you. Thank you Chairperson.
CHAIRPERSON: Thank you. Mr Mphoreng, you were a group of four. Was it only you and Mr Tanda Kubona that were armed in the group?
MR MPHORENG: All of us were armed except our driver, that is Thabo.
CHAIRPERSON: So you and Mr Tanda Kubona and Skumbuso were all armed?
CHAIRPERSON: And where did these arms comes from?
MR MPHORENG: We were given these firearms by our commanders.
CHAIRPERSON: What were you armed with, with a small arm, a pistol?
MR MPHORENG: Yes we were armed with pistols.
CHAIRPERSON: And Mr Tanda Kubona as well?
CHAIRPERSON: Yes, now I just want to ask you a little about Mr Tanda Kubona, seeing that he is not present and he might materialise at some later stage. Was he - or just tell us, what was his political situation, was he also a member of the same organisations that you belonged to?
MR MPHORENG: Yes both of us were members of this organisation.
CHAIRPERSON: You belonged to the same organisation?
CHAIRPERSON: Was he also an executive member of the organisations that you were an executive member of, the Azanian Student Movement, if I'm not mistaken?
MR MPHORENG: I don't remember well whether he was a member of the executive but I remember that he was a member of the organisation.
CHAIRPERSON: Did he also receive military training with you?
CHAIRPERSON: The same type of training?
MR MPHORENG: Yes that is correct.
CHAIRPERSON: And did he also participate in the reconnoitring that you refer to?
MR MPHORENG: That is correct, he was present.
CHAIRPERSON: And he received the same orders from the same commanders that you did as you testify?
CHAIRPERSON: And his task was to confront the security guard with his pistol, with Tanda Kubona's pistol?
MR MPHORENG: The order was the same but when he arrived at the scene, we worked as a unit but we had one purpose.
CHAIRPERSON: Yes, I realise that, I just want to get the particulars of the role that Mr Tanda Kubona played in this attack. You obviously decided amongst yourselves which member of the group would play which particular role like Thabo was the driver, you would sit in the car and make sure that you are safely taken away after the attack and that's what I want to hear about Tanda Kubona. Was he the one who was tasked to actually go and confront the security guard with the pistol that he had?
MR MPHORENG: Because we were working as a unit and we had to take different positions although we had the same purpose. What is important is that we are a unit and we have the same objectives. So when we arrived at that scene we decided that Thabo would be the driver and my role would be as a cover. I would say his role was to approach the security guard directly at the scene.
CHAIRPERSON: Alright and that's what I'm interested in. You don't need to repeat what the objective was, I'm just interested in specifically what role Tanda Kubona played, alright? That's what we're talking about. So when he approached the security guard, you already had his pistol out and pointing towards the guard?
MR MPHORENG: Yes that is correct.
CHAIRPERSON: Can you recall whether he said anything to the guard? Surrender or give your arm or anything? Can you remember anything like that?
MR MPHORENG: It happened so quickly, that is why I do not remember that he said anything to the security guard.
CHAIRPERSON: Okay. And then eventually he shot the security guard?
CHAIRPERSON: And who actually took away the revolver, the firearm of the security guard?
MR MPHORENG: That is Skumbuso.
CHAIRPERSON: Skumbuso, okay. Yes, thank you, Mr Mphoreng. Mr Maleka, any re-examination?
MR MALEKA: Thank you Mr Chairperson, I have no re-examination.
NO RE-EXAMINATION BY MR MALEKA
CHAIRPERSON: Thank you Mr Mphoreng, you are excused. Are there any other evidence that you are going to present or is that the case for the applicant?
MR MALEKA: Thank you Mr Chairperson. I do have an affidavit which I would like to tender as evidence and as exhibit which has been deposed to by one of the high-ranking officials of AZAPO at the time and relating to this specific incident and the confirmation that this was part of the strategy and political objective of AZAPO at the time and I don't know whether I have to read it into the record or I can hand it in as an exhibit.
CHAIRPERSON: No, I think we'll just identify it. Perhaps you can hand it in and we'll identify it on the record and allocate a number to it. Yes, the affidavit is by Libon Tiani Mbasa and it is deposed to on the 3rd August 2000 at Johannesburg. Just before I deal with it - Ms Mtanga, have you got any objection to this affidavit being handed in as a...?
MS MTANGA: No Chairperson, I do not.
CHAIRPERSON: Yes, well then the affidavit is received as Exhibit A. Very well, is there anything else that you wanted to add? Mr Maleka is that the case for the applicant?
MR MALEKA: That is the case for the applicant, Mr Chairperson.
CHAIRPERSON: Thank you. Very well. Ms Mtanga, are you presenting any evidence?
MS MTANGA: No Chairperson, I would not.
CHAIRPERSON: Thank you. Mr Maleka, do you want to address us?
MR MALEKA IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, I would like to submit to the Honourable
Committee that the applicant has made out a case for the granting of his amnesty and that this application as supported by the evidence given by the applicant complies with the requirement of the Act in that this specific act which was performed by the applicant was performed with a political objective and that the applicant was a trained member of the Azanian Liberation Army and bona fide believed that the orders that he was performing were in furtherance of a political struggle which was waged by AZAPO, the BCMA and other affiliates at the time and that the political situation which existed justified the steps which the applicant and other members of the political organisation took in pursuance of the political struggle.
Mr Chairperson and the Committee, it is also my submission that the mandate and the specific order which the applicant had was to arm themselves and also in defence of the organisation and also as a broad political strategy to weaken the muscle of the State, that the applicant had no other motive to gain. If one were to look at the incident itself, their target was mainly aimed at acquiring the firearm and that they never went there with the specific intent or objective of killing the officer but only that if the target resisted then would they resort to legal action and its also my submission that had they had other motive like economically enriching themselves they would have otherwise taken the cash, taken the stock and also taken the truck that was there to deliver the stock and that this murder was not really out of any personal malice or ill will or spite on behalf of the applicants and that it was a properly planned mission and that the Committee should consider granting the applicant amnesty and that he has complied with the requirements of full disclosure of the relevant facts at the time. Thank you.
CHAIRPERSON: Thank you Mr Maleka. Ms Mtanga?
MS MTANGA: Chairperson, I have no submissions to make in this matter. I also wish to state for the record that the next-of-kin of the security guard, we were informed that they left the country, they're overseas somewhere but we don't know in which country.
CHAIRPERSON: Thank you. We noted that. Yes, Mr Maleka, there's nothing to reply to so I assume you won't want to add anything? I accept that there's nothing to reply to but if you want to add anything further you're free to do so.
MR MALEKA: I've nothing to add, Mr Chairperson.
CHAIRPERSON: Thank you very much. Yes, that concludes the application. The Panel will consider the matter and will formulate a decision as soon as circumstances permit us to do so and we will let the parties know as soon as that is available. So the decision will be reserved.
Mr Maleka, we thank you for your assistance in the matter and Ms Mtanga and if you want to be excused you could be excused. Very well. Ms Mtanga, we have a number of other matters. What is the position, are you able to proceed?
MS MTANGA: Yes Chairperson, Mr Koopedi is here and he is appearing for all the applicants in the next two matters and he is ready to comment.
CHAIRPERSON: Ms Mtanga, you are being overruled. The Panel is going to rise for a few moments.