CHAIRPERSON: Yes Mr Smuts?

LUNGILE MAZWI: (still under oath)

CROSS-EXAMINATION BY MR SMUTS: (continued)

Mr Mazwi, yesterday we were dealing with the confession proved in the criminal trial and the text of it as it appears on page 81 of the judgment.

We have dealt with the sentence which states we went to a certain spot where whites arrived for holidays and you said this was what you were told by the police, is that correct? You were taken there as I understand it, by your colleagues from Port St Johns. What did they tell you about that area?

MR MAZWI: I was told that that was a camp. It was a camping site for visitors.

MR SMUTS: Mr Chairman, I heard no reply.

INTERPRETER: I was told that it was a camping site, the place was a camping site.

MR SMUTS: I am not receiving a reply from the Interpreter Mr Chairman.

INTERPRETER: I was told that the place was a camping site. The place was a camping site.

MR SMUTS: I apologise Mr Chairman, I wasn't receiving a reply.

INTERPRETER: The place was a camping site.

ADV DE JAGER: The translation that came through was I was told it was a camping site for visitors.

MR SMUTS: So, Mr Mazwi, the fact that you were told that this was a camping site for visitors, must have alerted you to the fact during the holiday season, that there could be visitors who could be holiday makers in the area?

MR MAZWI: Yes, that is correct. I have a problem with the microphone. I had a problem with my headphone. Okay.

MR SMUTS: Thank you. The statement continues our vehicle which belongs to Vuyani Nyalukana was parked a distance from the holiday resort.

Does that correctly reflect the position?

CHAIRPERSON: What position, whether he made that statement or ...

MR SMUTS: Is that a correct reflection of what took place on the day?

MR MAZWI: Yes, that is true, but I just wanted to clarify something. I did not see the place with my own eyes. Even the house, I did not see the house. I was only at a spot where the incident took place.

I heard people telling me that there was a house and a camping site there. I never saw the place with my own eyes.

MR SMUTS: Yes. Your statement continues some of us, about four, went to the flats to check whether the whites were there. Is that what in fact happened?

MR MAZWI: Yes, some people went there to check.

MR SMUTS: And the statement continues they came back and reported that they had found an old lady and a girl (whites).

MR MAZWI: I cannot say that it was true that they found an old lady and a girl. I got that from the Prosecutor. I did not get that information from the comrades. The comrades who went there to check in the house.

MR SMUTS: Can you firstly explain who are you referring to when you say you got that from the Prosecutor?

MR MAZWI: I got that from the Investigators of the Murder and Robbery Department that there was an old lady there and a girl. I got that information from the Investigators.

MR SMUTS: Was that prior to your making this confession to the Magistrate?

MR MAZWI: Yes, they told me when we were there at the Murder and Robbery Department.

ADV DE JAGER: Okay, then could you kindly tell us what did your four colleagues report to you, on coming back, what did they see, what did they observe there?

MR MAZWI: As I said yesterday, it is difficult for me to explain at a time when the people went to fetch water from the river, but yesterday I said that at some stage I went to the shop and when I came back, I got my colleagues together, talking. They were from those houses, but what I heard was that there were no one inside there, when I inquired.

ADV DE JAGER: Sorry, I've got a problem here. The Interpreter's voice and the witness' voice, both voices are coming through simultaneously, so I can't distinguish if I am on channel 2.

Could the witness kindly repeat his answer and could it be translated so that I could find out whether it is still mixed up.

MR MAZWI: I am saying it is difficult for me to explain everything that happened at the time just before the attack because some people went to the river to get some water and I went to the shop and when the people who went in there to inspect the place, they came back, but when they came, I was still in the shop and they were with the other comrades.

MR SMUTS: The shop that you went to, was that the shop that belonged to the relatives of your fellow applicant, Mr Hermans?

MR MAZWI: Yes, that was his family shop.

MR SMUTS: Was the area then known to Mr Hermans at least, although it wasn't known to you?

MR MAZWI: As far as I am concerned, he is from there, he is originally from that place.

MR SMUTS: Is it your evidence then that when you enquired, those who had gone to scout out the area, reported that they had found nobody there?

MR MAZWI: That is the answer that I got, that they said inside the houses, there was no one, but there were cars that the people were supposed to wait for. They said those cars had gone to a certain coast.

MR SMUTS: Who said that the cars had gone to a certain coast?

MR MAZWI: It is difficult sir, to differentiate because I did not ask a specific person, I was just speaking generally. I was getting answers from anyone, so therefore I cannot be so sure who actually gave me that particular answer.

MR SMUTS: But did you get the answer from your colleagues who had gone to scout out the area, one or other of them?

MR MAZWI: I got that information from the comrades who were sitting together with the comrades who went in there to check in the flats.

MR SMUTS: And was it reported to you how they had come by the information that somebody had gone, that people had gone to this other coast?

MR MAZWI: I did not make any follow up concerning that. I had to wait for the time.

MR SMUTS: What do you mean that you had to wait for the time?

MR MAZWI: As we were sitting there, we were waiting for those cars who were out, the cars that were said to be gone to another coast.

MR SMUTS: And your evidence to this Committee is that the Investigating Officers told you that there would have been an old lady and a girl who were white at the bungalow at the time that the investigating party went to have a look, is that your evidence?

MR MAZWI: Yes, I said so.

MR SMUTS: And that would have been - in what context would they have said that to you?

MR MAZWI: It is because I was denying that I was also in there, they said I must not fool myself, because my colleagues told them that there was an old lady there and a girl on that day of the attack.

MR SMUTS: So are you saying the Investigating Officers said to you that you had been told by your colleagues that they found an old lady and a girl there?

MR MAZWI: The Investigating Officers got that information from my colleagues or comrades.

MR SMUTS: In the judgement dealing with the admissibility of this confession, at page 4073, the learned Judge dealt with your evidence regarding that sentence, the sentence which reads they came back and reported that they had found an old lady and a girl (white) and he records at the bottom of page 4073 at line 23 that your evidence was that the idea of mentioning the old lady came from you.

At the top of 4074 the judgement continues ...

MR ZILWA: I am sorry Mr Chairman, I am not aware of page 4073. I am not sure which volume or bundle my learned friend is referring to.

MR SMUTS: Mr Chairman, it is volume 27, the typed transcript dealing with the judgement on the admissibility of the confessions in the criminal trial.

MR ZILWA: I must say I don't have that document Mr Chairman. I don't know if any of the Committee members has it?

CHAIRPERSON: That is what the Judge believed and said that he made a finding about, have you got any comment about it?

MR SMUTS: I am sorry, Mr Chairman, I hadn't completed putting the passage to the witness.

At the top of page 4074, the Judge records that your evidence was "he did not know what kind of whites they were referring to and he only decided to mention the old lady. When asked about the mention of the girl, he said that the police had told him that they only found females and he only thought that they might have found an old lady and a girl."

Is that indeed what your evidence was in the criminal trial regarding that portion of your confession?

MR MAZWI: I hope that is the way that, that is the manner that I testified in court.

MR SMUTS: Why do you hope that that is the way you testified in court?

CHAIRPERSON: I think that what he intends to say is he hopes that he is being correctly quoted. What do you mean by you hope that that is what you testified?

MR MAZWI: I agree with him in what he says.

MR SMUTS: Thank you Mr Chairman. The evidence that the idea of saying there was an old lady, came from you, according to your evidence today, was false?

MR MAZWI: Sir, I was trying to save myself, I was trying to escape. I was trying to save myself, therefore it will be difficult. The way I was testifying, the manner in which I was testifying in court, I was actually trying to save myself, therefore it will be difficult for me to clarify further on that fact.

MR SMUTS: How would it have made any difference to you whether, in the criminal trial, whether you testified as you do today, that you had got this information from the police or whether you testified as you did then, that the idea of mentioning the old lady was your own inspiration?

MR MAZWI: Whatever I was saying in front of police, it will be different from something that I will be saying willingly because I was not free there, even when I was in Leboti doing that confession. I was a bit confused.

CHAIRPERSON: What the Advocate is saying is that when you were, during your trial you told the Judge that this story about an old lady was something you made up. And you now tell us, that wasn't the truth, but that you were trying to save yourself and that is why you told the Judge that it was something that you made up.

Today you tell us that the idea of an old lady was really something that was reported to you by the police when they were investigating this matter and interrogating you. That information they acquired from one or more of your colleagues. What the Advocate, and you say - what the Advocate is asking you is why didn't you tell Judge Davies that in fact this information I acquired from the police rather than saying you made it up? Because it wouldn't make any difference, you were lying in both cases.

MR MAZWI: The manner in which I was testifying there in court, cannot be the same as when I testified in a free environment. At the time my intention was to be found not guilty in court.

ADV DE JAGER: Okay, now can you please tell me, did you make the story up yourself or did the police tell you about the story?

MR MAZWI: I got that from the police office in the Department of Murder and Robbery, this story about an old lady and a girl, I got it from that office.

ADV DE JAGER: So you didn't make up the story?

MR MAZWI: No, I did not make up the story as I told the Judge at the Supreme Court.

CHAIRPERSON: And neither did you get that information from any of your colleagues?

MR MAZWI: I cannot remember clearly, but I am sure that I got this information from the police Officers in the Murder and Robbery Department that there was an old lady and a girl.

CHAIRPERSON: Well, then your colleagues could not have told you that if you are sure that you got the information from the police, not so?

MR MAZWI: What do you mean, do you mean they couldn't have told me at the time, or after. What do you mean actually?

CHAIRPERSON: Well, it doesn't matter when you heard it. You are saying that you acquired this information from the police after you were arrested, during interrogation, not so?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: And therefore you could not have got this information from any of your colleagues?

MR MAZWI: I cannot say so, I could have acquired that information from them.

CHAIRPERSON: But you have just told me that you were sure that you acquired this information from the police during interrogation?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: And it follows then that you did not acquire this information from any of your colleagues? Isn't it?

MR MAZWI: That does not mean that I could not get this type of information from my colleagues.

CHAIRPERSON: Well, did you get it from your colleagues?

MR MAZWI: What I can remember is that they said there was nobody inside there, so we had to wait for the cars that were out to the other coast. I cannot remember clearly who the person was, the person who gave me this type of information.

CHAIRPERSON: We are not talking about information that the house was empty and the number of cars, and that the occupants had left for the coast, we are not talking about that.

We are talking about the aspect of whether there was an old lady and a young girl somewhere noticed during that reconnaissance trip. Where did you acquire that information? Forget about whether there were really a white old lady and a white young girl there.

Where did you get that kind of information?

MR MAZWI: As far as I can remember, I got that from the Murder and Robbery Department.

CHAIRPERSON: And therefore it follows that it would not have been any of your colleagues that gave you that information, but as you say, you acquired it from the police?

MR MAZWI: That is correct.

MR SMUTS: I understood your evidence earlier to be that you got that information from the police in the context that they said to you they had come by that information from one of your other colleagues, is that correct?

MR MAZWI: Yes, they told me so. They told me that they got that information from some of my colleagues.

MR SMUTS: Did they identify the colleagues from which, from whom they had obtained such information?

MR MAZWI: I cannot remember. I cannot remember, I don't remember them telling me the name of the person who told me so because even if ...

INTERPRETER: Can the speaker please repeat the last part?

MR MAZWI: I cannot remember them telling me the name of the person, because even the person who actually implicated me in that case, I was not told, his name was never revealed to me.

MR SMUTS: Do you know which of your colleagues were arrested before you were?

MR MAZWI: Yes, I do.

MR SMUTS: Who were they?

MR MAZWI: The first one was Pumelele Hermans.

MR SMUTS: Was he the only one that was arrested before you were?

MR MAZWI: He was with Vuyani Nyalukana.

MR SMUTS: Were they the only two who were arrested before you?

MR MAZWI: And Mlulamisi Maxhayi and Zongizela Mxhiza.

MR SMUTS: The statement continues at line 20 on page 81 of the typed, line 19 I beg your pardon, a young herdboy appeared and said some white men had travelled to the sea in a 4 x 4 van to catch fish.

ADV DE JAGER: Mr Smuts, where are you?

MR SMUTS: Mr Chairman, the text to the confession appears on page 81 of the typed judgement which is in the bundle.

ADV DE JAGER: You are reading from line?

MR SMUTS: Line 19 Mr Chairman, a young herdboy appeared and said some white men had travelled to the sea in a 4 x 4 van to catch fish.

Is that in fact a correct reflection of what took place on that day?

MR MAZWI: Yes, that is correct.

MR SMUTS: Is it correct that when you went to set the ambush along the road along which you anticipated the vehicle would travel, you knew that what you were going to ambush, was a fishing party?

MR MAZWI: Do you mean on our way to the place?

MR SMUTS: I mean Mr Mazwi when you went to go and set up the ambush, you knew that you were setting up an ambush for a fishing party which was going to return home.

CHAIRPERSON: Maybe for the purposes of the application, it will be fair to put to him that the party was a fishing party intending to return home, and not infiltrators.

MR SMUTS: That might be two issues in the light of what Mr Maxhayi gave evidence about Mr Chairman, that is why I wanted to know as specifically as I could.

CHAIRPERSON: Deal with them, let's see what he answers.

MR MAZWI: Before we could move, we did not intend to attack the fishermen. We got that information while we were there that some cars had gone to a certain coast.

MR SMUTS: And you were told by a herdboy that the people had gone fishing?

MR MAZWI: I was not told, but this is what I said during the confession.

MR SMUTS: No, no, Mr Mazwi, I asked you to confirm or deny whether this information which you recorded that you were told by a herdboy that whites had gone fishing, in fact correctly reflected what happened on the day in question, and you confirmed that it did.

Do you now wish to deny that it happened?

MR MAZWI: I was agreeing, I was admitting what you were reading to me.

CHAIRPERSON: But you were asked if that was the truth, and you said yes.

MR MAZWI: I thought that he was actually asking me about the statement that he was reading.

MR SMUTS: Mr Mazwi, do you wish to retract your admission that the statement that you were informed by a herdboy that the whites had gone fishing, was true?

MR MAZWI: As I have said that whatever I was saying in that statement, I was actually trying to save myself from prosecution. Everything that I said there, was not true. I wanted to save myself from the situation.

MR SMUTS: I want to be fair to you Mr Mazwi, are you saying that the contents of this statement was false and was an attempt to save yourself from prosecution?

MR MAZWI: Yes, that is what I am saying, but some of the things, it is information that I got, I heard from someone.

MR SMUTS: Well, how did you think you were going to save yourself from prosecution by saying that you lay and wait for a vehicle and when the 4 x 4 van bypassed ours, those who were laying had fired shots at it and it capsized. Would you explain to the Committee how you thought that was going to save you from prosecution?

MR MAZWI: As I said, some of things there are true, but some of them are not true. I just wanted to be free. It is the policemen who took me to the Magistrate, not the Prosecutors.

MR SMUTS: Well, let's try the present version then. Are you now saying that some of what is in the statement is true, and some of it is not?

MR MAZWI: Yes, that is so.

MR SMUTS: It was not a statement made to save you from prosecution?

CHAIRPERSON: What do you mean by trying to save yourself from prosecution?

MR MAZWI: Sir, I am not saying I was saving myself from the Prosecutors, but I was actually, I wanted to save myself from the police because they were forcing me to do anything and they were actually assaulting me. I was doing everything under duress.

MR SMUTS: Will you explain ...

ADV DE JAGER: Now there is no policemen now threatening you and you are not giving evidence under duress, did a herdboy inform your colleagues or yourself about some white men that had travelled to the sea in a 4 x 4 van to catch fish?

MR MAZWI: About this young herdboy, but I think they did meet with this young boy. I am not sure whether it was a servant or what, but someone told them about the cars that had gone to another coast.

I did not meet with this herdboy.

ADV DE JAGER: And they told you on returning, that they had met a herdboy or someone who told them that the car went to another resort to catch fish? Is that correct?

MR MAZWI: As I said before sir, that when I came back the comrades who had gone to inspect the place, were back and they were talking to other comrades.

I did enquire about their results, what they found when they had been inside the flats, I got the information that some cars had gone to another coast.

ADV DE JAGER: To catch fish or not?

MR MAZWI: Yes, they did mention the fact that they had gone fishing.

ADV DE JAGER: Thank you.

MR SMUTS: And so I repeat the proposition I put to you, by the time that you went to set the ambush for the vehicle that you expected to return, you knew that you were setting an ambush for a fishing party?

MR MAZWI: I cannot deny the fact that they said they were fishermen, because I know that they might pretend as if they were fishers, it was a fishing party whereas they were not.

CHAIRPERSON: What did you think they were?

MR MAZWI: It is because I know that a person can pretend to be doing something else, whereas that is not the case.

CHAIRPERSON: No, that is not the answer to my question. What did you think that party was or those people were? What did you think they were doing there at the resort?

If you thought they could also be pretending to be fishermen, what else could they have been? What did you think they were?

MR MAZWI: I regarded them as their other friends from Port St Johns, that were also enemies.

CHAIRPERSON: What were they doing? Why were they enemies?

MR MAZWI: Because they were an obstacle in the way of our struggle.

CHAIRPERSON: Mr Mazwi, what did they do that presented an obstacle to the struggle? What did you think they did or were doing, or had done or were going to do?

MR MAZWI: As I said before, that the comrades from Port St Johns told us about their problem. They mentioned something about disturbances and arms and attacks were expected.

MR SMUTS: With fishing rods Mr Mazwi? Were you expecting an attack with fishing rods?

MR MAZWI: They would take their fishing equipment with, whereas at the same time they would have grenades and other sorts of ammunition.

MR SMUTS: Did you have any evidence of any kind whatsoever, that the people that you were about to ambush and attempt to kill, were anything other than a genuine fishing party on holiday?

MR MAZWI: I do not deny the fact that they were holiday makers who went fishing, but at the time I did not have that knowledge. I was actually expecting an enemy. I was waiting for an enemy.

ADV DE JAGER: I've got one problem, and I wish to put it now because I think that could either prolong or shorten the proceedings.

You went there to retaliate the death of Chris Hani, isn't that true?

MR MAZWI: That is correct.

ADV DE JAGER: And it wouldn't have mattered whether you saw Mr Weakley or whether you saw Mr X or whether you saw Mr De Jager there, if he was a white man, you would have killed him?

MR MAZWI: If I would get him to a place or a spot that was identified as a problem, if I don't know that person, as long as I was told that that particular place had those people who were enemies, I would do that, I would kill him.

ADV DE JAGER: Didn't you consider the white people to be your enemies at that stage, on that very day?

MR MAZWI: I did not regard all the white men as my enemy.

ADV DE JAGER: Did you regard Mr Weakley as your enemy?

MR MAZWI: Because of the place where he was found and as a person that I did not know, it was easy for me to identify him as my enemy.

ADV DE JAGER: Because he was in that place, you identified him as your enemy? Is that correct?

MR MAZWI: Yes, as they said that the place was actually frequented by the people who were regarded as enemies, therefore I regarded him as an enemy.

ADV DE JAGER: Okay, who gave you that information that that place was frequented by the enemy, who is that person, what is his name?

MR MAZWI: The comrades from Port St Johns told me that one of the places that ...

ADV DE JAGER: That is the comrades of Port St Johns who have got names. I am asking you about the name, don't dodge the question every time, tell us the truth. Who told you that?

MR MAZWI: It was Pumelele Hermans and Fundisile Guleni.

ADV DE JAGER: Now, why didn't you give us that information in the first place, why should we drag it out of you? You are aware that you should make a full disclosure here, otherwise we can't help you. Please answer the questions and give us the truth now.

MR MAZWI: I apologise for that, but it has been difficult for me to understand questions at times, because English is not the same as Xhosa.

CHAIRPERSON: It has been translated to you Mr Mazwi.

MR MAZWI: Yes, that is true.

CHAIRPERSON: And this is not the first time that you have been asked where you obtained that information. Not so?

MR MAZWI: That is so.

CHAIRPERSON: Let me put it to you this way and I want to be as fair as possible to you. The law compels us to grant amnesty when certain requirements are complied with. One of those requirements is an applicant making full disclosure of what occurred in an incident for which he applies for amnesty.

A failure to do so, equally compels us to refuse the application. Do you understand? I am being quite fair to you now. If we are not satisfied as a panel that you are disclosing everything properly, then we will be forced to refuse it. Be forewarned.

MR SMUTS: Thank you Mr Chairman. Mr Mazwi, did you or any of your colleagues make any effort whatsoever, to discover whether or not the people you were set to ambush, were bona fide holiday makers on a fishing trip before you set the ambush?

MR MAZWI: No sir, we didn't.

MR SMUTS: Do you accept today that they were indeed holiday makers who had gone on a fishing trip?

MR MAZWI: Yes, I wouldn't deny that.

MR SMUTS: Do you accept also that far from being rightwing infiltrators, this party included people who were open and expressed opponents of the regime of the day?

MR MAZWI: I wouldn't accept or deny that, because I am not aware of that.

MR SMUTS: At the time when you set the ambush, did it matter to you at all who it was that you were awaiting and who it was that you were going to try and kill?

CHAIRPERSON: Do you talk about names and addresses or ...

MR SMUTS: In general.

MR MAZWI: Can you please explain sir.

MR SMUTS: Once you had decided to set the ambush, was it of any concern to you what the reason for the presence of those people were, what the political persuasions of those people were, whether they were adults of children?

MR MAZWI: We didn't notice that.

MR SMUTS: Did you care?

CHAIRPERSON: If it was someone who you knew was a holiday maker, would you have proceeded with that then?

MR MAZWI: No, we would not have proceeded.

CHAIRPERSON: Why did you then proceed with that that day?

MR MAZWI: Because we did not know, we were not sure that they were holiday makers or not.

CHAIRPERSON: What did you think they were?

MR MAZWI: I thought that they were one of the people that were causing problems in that area.

MR SMUTS: Why didn't you find out whether they were amongst those people before you decided to take their lives?

MR MAZWI: We didn't have that time sir.

MR SMUTS: Why not?

MR MAZWI: I think it was the situation that caused that, that caused us not to have time for that.

MR SMUTS: Mr Mazwi, the evidence we have heard is that the reconnoitring party went down to find out what was going on sometime between ten and eleven in the morning, is that correct?

MR MAZWI: I am not sure about the time sir, but there were people who went there to reconnoitre the place.

MR SMUTS: Mr Maxhayi's evidence was that it was between ten and eleven in the morning. Was it in the morning?

MR MAZWI: It might happen that he did have time, I did not have time with me. I wouldn't say that is not the case.

MR SMUTS: The other evidence is that the shooting was at sunset, there has been an estimate of half past five in the afternoon, would you agree with that?

MR MAZWI: Yes, that is true, it was during sunset.

MR SMUTS: What precluded you between ten and eleven in the morning and half past five in the afternoon, from seeking to find out from the people who were at the camp, the identity and the reason for the presence of the people whom you were waiting to ambush?

CHAIRPERSON: Identity in as what? Names and addresses or whether they were in fact these rightwingers?

MR SMUTS: Mr Chairman, can I rephrase the question, what precluded you from seeking information about the people whom you were waiting to ambush, so as to ensure that the people that you were waiting for, were in fact those whom you were targeting for an attack?

MR MAZWI: I wouldn't say what stopped us, but the way things were, I don't think that we would have time to investigate, because a lot of us did not know the place in the first place.

MR SMUTS: Is that the best answer you can give us for failing to make any enquiries?

CHAIRPERSON: Mr Smuts, just excuse, I don't follow the question. Having been told by the reconnaissance party together with those who purportedly had the first hand information, what was occurring there, is it to be expected that those people who came from outside the area, to make further investigations or would one accept that they bona fide accepted the information that they received, rightly or wrongly?

MR SMUTS: Mr Chairman, these people were about to take the lives of people they didn't know. They were in a holiday area, in a holiday season.

Their information was that the people they were waiting to ambush had gone fishing. The question is quite simply addressed to whether they made any effort to access or to inform themselves from those who were present and knew something about the people, whether these were rightwing infiltrators from Port St Johns or not?

CHAIRPERSON: I quite follow your reason. I am just asking as to the wisdom of the question.

Here we have an applicant who says he went there on an operation. That perhaps he did not follow up what we consider he should have done in the comfort of this hearing, he relied on the information that he got. The negligence of failing to make further enquiries, is that of any moment?

MR SMUTS: Yes, with respect Mr Chairman, it is of extreme importance. It goes to the good faith which the applicant is required to establish before he can qualify for amnesty.

CHAIRPERSON: It follows from your argument then that they should not have relied on the information.

MR SMUTS: It is a question which can be addressed in argument Mr Chairman, but with respect, there is no evidence yet that the informers told them that the people they were to ambush, were in fact the enemy who had been identified.

CHAIRPERSON: Carry on.

MR SMUTS: Mr Mazwi, in what capacity did you participate in this so-called operation?

MR MAZWI: I was just standing next to the car and I was protecting those who were not armed.

MR SMUTS: Sorry, let me try and be more clear. Were you there in your capacity as a member of the African National Congress, or as a member of the Communist Party or in what capacity was it that you were there?

CHAIRPERSON: Or a member of the Self Defence Unit? All three or any combination of the three?

MR MAZWI: I was there because I was a member of all those organisations, but I was under ANC Youth League and SACP and the SDU's.

CHAIRPERSON: That decision to do what you people did, was that a decision made under which flag?

MR MAZWI: We made this decision as the SDU's.

CHAIRPERSON: Did you obtain or try to obtain authority from any of the other organisations of which you were a member or not?

MR MAZWI: We didn't try to obtain authority sir.

MR SMUTS: And you were isolated members of an SDU rather than an SDU as a group, who made the decision to participate in this attack?

MR MAZWI: We took this decision from Flagstaff because we were members of the SDU and we were in the sub-region of Lusikisiki.

ADV DE JAGER: But I've got problems with you taking the decision as members of the SDU. Didn't you take the decision as individuals, as supporters of the SDU, but not as a body of SDU's or as supporters of the ANC and not as, by virtue of you being a member thereof and a meeting being held and you being authorised?

MR MAZWI: The question is not clear to me, can you please repeat the question.

ADV DE JAGER: Didn't the two of you, or the three of you, decide on your own we are supporters of the SACP or the ANC or the SDU, we take it on our own, as supporters, to revenge the killing of Hani?

MR MAZWI: It happened that way sir.

ADV DE JAGER: I don't want, I want you to make very sure of the answer. You have taken the decision as supporters, but you acted as individuals in taking those decisions, the decision to go and kill somebody or people in order to retaliate the death of Hani?

MR MAZWI: Yes, that is correct sir.

ADV SANDI: Sorry Mr Smuts, normally Mr Mazwi, how were decisions taken in the SDU's, was there a laid down procedure that would have to be followed whenever decisions are taken?

MR MAZWI: It depended sir, on the kind of decision that was to be taken.

ADV SANDI: If an important decision like this for example, had to be taken, what procedure would be followed, what would happen, who would get together and discuss?

MR MAZWI: They comrades who were able to take a decision, would take a decision, even if they are four, five or six. It was not necessary for all members of the SDU's to be there in order for such a decision to be taken.

ADV SANDI: So the few who get together, could discuss and then agree, later they go and inform others that this is the decision we have arrived at, is that what you are saying?

MR MAZWI: It is not everything that was taken to other members to inform them, because of the dangers of other cases. For example the case we are dealing with today.

MR SMUTS: In the interests of which organisation or organisations were the SDU's meant to act?

MR MAZWI: All the organisations that were under the ANC.

MR SMUTS: Did that mean that the SDU's were required to act within the bounds of the policy of the ANC?

MR MAZWI: Yes.

MR SMUTS: What was the policy of the ANC from the signing of the Pretoria Minute on the 6th of August 1990 until the day on which you launched this attack on the fishing party, as regards the use of violence?

MR MAZWI: Please repeat your question sir.

MR SMUTS: What was the policy of the ANC regarding the use of political violence?

MR MAZWI: The ANC was against violence.

MR SMUTS: Whose interests were you then promoting when you decided to resort to violence on the 13th of April 1993?

MR MAZWI: We were serving the interest of the SDU's.

MR SMUTS: And not the interest of the ANC?

MR MAZWI: Even the interest of the ANC as well.

MR SMUTS: Do you concede that your actions were in direct conflict with the expressed policy of the ANC?

MR MAZWI: I wouldn't accept that, or deny that.

MR SMUTS: Well, I am afraid, you are going to have to make a choice Mr Mazwi, because if you wish to qualify for amnesty, you are going to have to establish in whose interests you were acting and for what reason.

MR MAZWI: The way in which the SDU's operate sir, is not the same. It is not the same with all the ways that the ANC operated.

MR SMUTS: Are you saying that it was open to the SDU's to operate in conflict with the expressed policy of the ANC?

MR MAZWI: We were forced to do so because this is the manner in which we were trained.

MR SMUTS: You were forced to do so by whom or by what?

MR MAZWI: The situation prevailing at the time was compelling us to do so.

MR SMUTS: Are you saying that the situation at the time, compelled you to act in conflict with the expressed policy of the African National Congress?

MR MAZWI: We were not in conflict with the policies of the ANC, but we were doing our job as the SDU members.

CHAIRPERSON: Mr Smuts, what would be the purpose of the establishment of the Self Defence Unit?

MR SMUTS: Mr Chairman, there was evidence as to the reason for the establishment of the Units, that they were a defence mechanism.

CHAIRPERSON: Would you agree, inherent therein, that should the people who are to benefit from such defence mechanisms, were attacked, the Self Defence Units would necessarily have to at times use violence to protect?

MR SMUTS: Mr Chairman, ...

CHAIRPERSON: I am not suggesting that this is the case here, I am just talking in general?

MR SMUTS: Yes, that would be principle at law, that wouldn't ...

CHAIRPERSON: Yes, but wouldn't that, if one wants to interpret the policy strictly, be in conflict with the policy of the African National Congress?

MR SMUTS: No Mr Chairman. If one goes to these documents that are collated as Exhibit B, they deal with the use of violence to achieve a political end.

With respect, they could never have been intended not any of the accords, nor the National Peace Accord, the Pretoria Minute or the D.F. Malan Accord, could ever have been intended to preclude the right to self defence.

Nowhere in the text of any of those documents, is there a suggestion that the right to self defence is limited in any way.

CHAIRPERSON: Isn't that the point that the witness is trying to make?

MR SMUTS: It would be somewhat astonishing with respect, to see ...

CHAIRPERSON: He is confronted with a proposition that resorting to violence would be contrary to the policy or stated policy of the African National Congress. I don't know if that is absolutely correct.

MR SMUTS: May I refine it Mr Chairman. Your decision to launch an attack on persons driving a motor vehicle on the way back from a fishing trip, I suggest to you was in direct conflict with the policy of the African National Congress at the time.

MR MAZWI: At the time sir, I cannot say that it was not in conflict with the policy of the ANC, at the same time I cannot say it was not in conflict, but at the time we were working as the SDU members and we were doing our duty.

MR ZILWA: Just for the record, the witness has said at the same time I cannot say it was in conflict. I see a double negative was used by the Interpreter.

MR SMUTS: If you say you were performing your duty, your duty to who?

MR MAZWI: We were doing our, we were performing our duties concerning those people who were regarded as our enemy.

CHAIRPERSON: Your duty was to protect people, not so?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: Who were you protecting by doing what you did? Who did you think you were protecting at the time by doing what you did?

MR MAZWI: We thought we were protecting our leaders and the people of South Africa.

CHAIRPERSON: How would you be doing that in doing what you did at that time?

MR MAZWI: Are you referring to that incident, that particular incident or what? Your question is not clear sir.

CHAIRPERSON: On the 13th of April, is it, you launched an attack?

MR MAZWI: Yes, that is correct.

CHAIRPERSON: Did you think you were protecting your leaders or the people of South Africa in launching that attack?

MR MAZWI: The intention was to notify those who were still prepared to eliminate our leaders, they were to know that if they still continue doing that, they will be in trouble.

That was a way of sending a message through.

MR SMUTS: By launching a murderous attack on three fishermen and two children, is that how you sent the message?

MR ZILWA: I am sorry, I am sorry, Mr Chairman, before that is answered, I am not quite sure that the question is fair. The witness has said repeatedly that everybody who was in that camp, every white person who was in that vicinity at the time, they regarded as an enemy. He has repeatedly stated that they know that had they known that it was a mere party of fishermen, they would not have gone ahead with the attack.

Now with that response on record, it is not fair to suggest that they meant to protect their leaders by attacking fishermen and children. The question is just not in context.

CHAIRPERSON: I think it is a fair objection Mr Smuts, if you would care to rephrase.

MR SMUTS: Well, the cold facts Mr Chairman, are that that is what they did.

CHAIRPERSON: Yes, but in the context as Mr Zilwa says at the time - this witness' evidence is that he laboured under the impression that based on the information that he had received, that any white person found along that coast, was an infiltrator doing whatever they objected to.

MR SMUTS: Well, if I can explore that then Mr Chairman, is it your evidence Mr Mazwi, that children found on that coast, who happened to be white, were to be regarded as the enemy against whom your leadership required protection?

MR MAZWI: I would not regard children as enemies.

MR SMUTS: But your party fired on a vehicle in which there were two children?

MR ZILWA: Again Mr Chairman, that needs to be put in the proper context. At no stage did the witness or anybody else say at the time that they did the firing, did they know or see that there were children in the vehicle.

ADV DE JAGER: Did you do anything to find out whether there were children or women in that car?

MR MAZWI: No sir, we did not.

ADV DE JAGER: So you didn't care whether there were women or children in the car?

MR MAZWI: That did not occur to me that there would be children in the car.

MR SMUTS: Mr Mazwi, did you hear the passage that Mr Maxhayi read yesterday from the statement of the then ANC President, Mr Mandela on the 13th of April 1993?

MR MAZWI: Yes, I heard that.

MR SMUTS: Did you hear the passage which reads at page 9 of the document, Exhibit B, any lack of discipline is trampling on the values that Chris Hani stood for?

MR MAZWI: Yes, I heard so.

MR SMUTS: Those who commit such acts, serve only the interests of the assassins and desecrate his memory?

MR MAZWI: Yes, I heard that too.

MR SMUTS: Do you agree with that view expressed by Mr Mandela?

MR MAZWI: Yes, I agree sir. As Chris Hani was killed, he was still maintaining that position.

MR SMUTS: Can I ask you then what gave you and your colleagues the right to deviate from that position?

MR MAZWI: We were forced by the situation, because they killed the person who was actually preaching about peace. That action actually compelled us to act in that manner and we looked like people who were actually deviating from that role, whereas we were not like that.

MR SMUTS: You say you were forced by the situation, is that correct?

MR MAZWI: Yes, that is correct.

MR SMUTS: Do you say you were forced as members of the SDU's to act in that situation?

MR MAZWI: Yes, that is correct.

MR SMUTS: We heard yesterday that there were 15 members of your SDU, is that correct?

MR MAZWI: Yes, that is correct.

MR SMUTS: Three of you acted in this manner?

MR MAZWI: Yes, that is correct.

MR SMUTS: Were the other 12 not forced by the situation to act in such a way?

MR MAZWI: It is as I said before, that our modus operandi as SDU's, we are not compelled to inform anybody about any operation. It depends on how delicate the operation is, or how dangerous or sensitive the operation is.

MR SMUTS: What I suggest to you Mr Mazwi, is that what sets you apart, you and your two colleagues, from the other 12, is not that you were forced to act by the situation, but that you chose to act in the manner in which you did, notwithstanding the expressed policy of the African National Congress regarding resorting to political violence.

MR MAZWI: We were forced by the situation sir.

MR SMUTS: I have no further questions Mr Chairman.

CHAIRPERSON: Mr Zilwa?

RE-EXAMINATION BY MR ZILWA: Thank you Mr Chairman. Mr Mazwi, you say the manner in which your SDU operated, was such that it was quite permissible and normal for a decision of the type that you took, to be taken by a few members of the SDU, such as the three of you?

MR MAZWI: Yes, that is correct sir.

MR ZILWA: In taking that decision as you did, was there anything contrary to the manner in which the SDU operates or contrary to any other higher policy under which the SDU operated?

MR MAZWI: No, nothing was contrary to anything.

MR ZILWA: Now, you say given the situation that was prevailing at the time, when you carried out the act that you did, you thought you were acting in your capacity as an SDU to protect?

MR MAZWI: That is correct sir.

MR ZILWA: Did I understand you correctly in saying you thought your action was such that it would influence even other would be assassins of your leaders, to desist from so doing and as such you were acting within the scope of what your SDU's are all about?

MR MAZWI: That is correct sir.

MR ZILWA: Did I also understand you correctly in understanding you to be saying because of the information you had given, you thought that any white person excluding of course women and children, who would be in that area, would be part of the enemy that was destabilising Port St Johns and which constituted your targets?

MR MAZWI: That is correct sir.

MR ZILWA: I want us to get this clear. If you knew that the party that you ended up attacking, in fact was a fishing party, amongst which there were children, if you had known that before the attack, would you have carried on with the attack?

MR MAZWI: I hope we would not even begin to do such a thing, if we knew.

MR ZILWA: You must be very careful with your choice of words Mr Mazwi. When you say you hope, what does that mean?

MR MAZWI: I want to say I am sure, but in Xhosa that language is accepted.

MR ZILWA: Okay. Now, in acting as you did, did you consciously did contrary to the established policy of the ANC?

INTERPRETER: Could the speaker please repeat the question?

MR ZILWA: In carrying out the operation as you did, did you consciously act, knowingly act contrary to the established policy of the ANC?

MR MAZWI: No, that is not true sir.

MR ZILWA: Thank you Mr Chairman, I've got no further questions.

ADV SANDI: Mr Mazwi, just one or two questions from me. You say you had no time to investigate and verify the available information about the people who were staying at the bungalows. Why was that? Why was that, why did you think you had no time to do that?

MR MAZWI: Our problem was this, most of us who were involved in that operation, we were not familiar with that place, but we had to ensure our safety before. Therefore it was difficult for us to investigate what was happening. We were not to be involved in any prolonged investigation.

We took it that the first investigation was just enough for us to start our job.

ADV SANDI: Would I be correct to infer from that, you gentlemen were in a great hurry and you were quite emotional, you wanted to simply retaliate the death of your leader?

MR MAZWI: I cannot dispute that sir, and I cannot agree because it was just a combination. We were just in a hurry, that was not good news. What happened, was not actually a good thing.

ADV SANDI: When you look back in retrospect, do you regret having ambushed innocent fishermen who were just on holiday in that area? Do you have any regrets about that?

MR MAZWI: I feel very bad sir to know that those were innocent people, I regret so much. Though at the time, I did not know that those were holiday makers.

ADV SANDI: Thank you Mr Chairman.

ADV DE JAGER: Mr Mazwi, we had a past in this country which culminated in a war between the people in South Africa because the white people had the political power and the black people, didn't have the political power in the South African parliament, isn't that so?

MR MAZWI: That is correct sir.

ADV DE JAGER: And because of that conflict, the people of South Africa were at war with each other?

MR MAZWI: That is correct sir.

ADV DE JAGER: And that war in fact was a war between the whites in South Africa and the blacks in South Africa with a few exceptions?

MR MAZWI: That is correct sir.

ADV DE JAGER: And on that day, you acted as a soldier in that war, or didn't you act as a soldier? As far as you were concerned?

MR MAZWI: I acted as a soldier. Please explain sir.

ADV DE JAGER: Well, you took up a gun and you killed people and that is what soldiers usually, or what is part of their job?

MR MAZWI: That is correct.

ADV DE JAGER: And fortunately that war in South Africa has come to an end?

MR MAZWI: That is correct.

ADV DE JAGER: And all of us, including the victims here, would try in future to avoid such a war again?

MR MAZWI: I would be happy sir.

ADV DE JAGER: And that is what this Committee and the Act is trying to achieve, to get reconciliation.

MR MAZWI: That is so sir.

ADV DE JAGER: And you have told us that in future you will try to see whether you could contribute something to that reconciliation.

MR MAZWI: I am very much willing sir.

ADV DE JAGER: And I hope although the sorrow may be deep, that even the relations of the victims would try to contribute to a better future for all of us in this country.

MR MAZWI: That is my wish sir.

ADV DE JAGER: And it is true that you have killed innocent people on that day, but unfortunately that is the situation in a war. On both sides, innocent people were killed in that war? Thank you.

ADV SANDI: What was your response to that Mr Mazwi, do you agree that innocent people get killed in a war, on both sides?

MR MAZWI: That is correct sir.

CHAIRPERSON: Yes, thank you.

--------------------------------------------------------------------------MR ZILWA: Thank you Mr Chairman, I will be calling the first applicant Pumelele Civilian Hermans. Would he be sworn in please?

CHAIRPERSON: Mr Hermans, what language would you prefer to use?

MR HERMANS: Xhosa.

PUMELELE CIVILIAN HERMANS: (sworn states)

EXAMINATION BY MR ZILWA: Thank you Mr Chairman. Mr Hermans, you are a member of the ANC?

MR HERMANS: That is correct.

MR ZILWA: How long have you been a member of the ANC?

MR HERMANS: Since 1990.

MR ZILWA: That was at the time that the ANC was still banned, isn't that so? In 1990, that was at a time when the ANC was still banned, in other words you started with your membership of the ANC at a time it was still banned, would that be correct? I could be wrong, had it been unbanned?

ADV DE JAGER: It was unbanned on the 2nd of February 1990.

MR ZILWA: Yes, let's get it from you.

MR HERMANS: Yes, when I first became a member of a political organisation, I joined UDF in 1984. Then in 1990, when the ANC was unbanned, I was then a member of the ANC.

CHAIRPERSON: Where do you stay?

MR HERMANS: Port St Johns.

CHAIRPERSON: In 1993, April, were you a resident of Port St Johns?

MR HERMANS: That is correct.

CHAIRPERSON: Are you still a member of the African National Congress?

MR HERMANS: That is correct.

CHAIRPERSON: Were you ever a member of the South African Communist Party?

MR HERMANS: I am a member.

CHAIRPERSON: Were you during April 1993 a member of the South African Communist Party?

MR HERMANS: Yes.

CHAIRPERSON: Are you aware of the, were you aware of the existence of what is known to be Self Defence Units, at that time?

MR HERMANS: It was in 1992 when I started getting involved in the Self Defence Unit.

CHAIRPERSON: Were you still involved in the Self Defence Unit during April 1993?

MR HERMANS: Yes.

CHAIRPERSON: Where?

MR HERMANS: In Port St Johns.

CHAIRPERSON: Are you aware why you have come to this hearing? I didn't get the answer?

MR HERMANS: Yes.

CHAIRPERSON: Tell us how you got involved in that incident?

MR HERMANS: I would like to start about the death of Chris Hani. What happened is on the 10th of April 1993, Chris Hani was shot by white people. We heard that together with my colleague Guleni, we heard from people in town during the day when Chris Hani died. We didn't believe that when we heard it.

On that same day, we were listening to the seven o'clock news on the television, I was then sure that it is indeed true, Chris Hani is dead.

MR ZILWA: Mr Hermans, to put your actions in context, maybe you should first establish, you have already told this Committee that you are a member of the ANC and a member of the SACP and a member of the Self Defence Unit in Port St Johns.

Were you holding any particular position of leadership in any of those organisations in Port St Johns?

MR HERMANS: In the ANC Youth League, I was the Publicity Secretary of the Branch. In the ANC I was just an ordinary member. The Communist Party, I was a Treasurer of the Branch. Again, in the ANC Youth League in the sub-regional level, I was a Treasurer.

MR ZILWA: Right, in the Self Defence Unit itself, were you holding a position of power of authority?

MR HERMANS: In the Self Defence Unit, I was in the sub-region of the Self Defence Unit together with my colleague, Guleni.

MR ZILWA: Right, now with that background in mind. I stopped you at a time when you were telling us that you watched the TV news and you heard about the death of Chris Hani. Please take it from there and proceed.

MR HERMANS: When we heard that Chris Hani died, on the following day, on Sunday, Guleni and myself went to the ANC offices. It was not a normal thing for these offices to be opened on Sunday, but we had to go and work and do whatever we can do at the office about the death of Chris Hani.

We decided to write letters to all the Branches of Port St Johns. The aim was for us to tell them that they should be ready, maybe they would be needed to go and attend a memorial service or a funeral. We wanted them to tell everybody about what happened. People who did not have radio's and televisions.

We worked on that Sunday and on the Monday. In the afternoon on Monday, the comrades from Flagstaff came, Maxhayi, Nyalukana and Mazwi.

MR ZILWA: Yes.

MR HERMANS: They came with a view that we should retaliate because of the death of Chris Hani. We also had similar views when they came to us.

MR ZILWA: When you say we, who are you talking about?

MR HERMANS: I am referring to myself and Fundisile Guleni.

MR ZILWA: Carry on.

MR HERMANS: I want to explain why they came to Port St Johns, the comrades from Flagstaff. What happened is in 1992, towards ...

MR ZILWA: Mr Hermans, the electricity left us when you were just starting narrating the events surrounding the death of Chris Hani. You were saying on the, after you had learned about the death, you wrote letters and right there, just continue from where you left off.

MR HERMANS: What I was trying to say was that the reason why the people from Flagstaff went to Port St Johns, there was a report in 1992 which we gave to the sub-region about the conditions, the bad conditions that we were working under at Port St Johns.

We were working under threats.

MR ZILWA: Yes?

MR HERMANS: As we were people who were always in the office, we were working in the office, but we would go out to different Branches. When we came back at other times, we would find from the Administrator that there were people from a certain Branch who came and gave a report about their fears in their areas, for example in Gomolo.

People were scared of whites that they didn't trust. Port St Johns, in town, there were times when the workers were experiencing problems. They then came to our offices and reported, and gave us a report about the matter and there was a white man who was a businessman by the name of John Costello. His workers had a problem concerning him.

They then came to the ANC offices asking for help. They were having problems about their salaries or wages, and the conditions of employment. They had doubts about certain things, they had doubts about the way he was speaking to them.

MR ZILWA: Let's be more specific and let's try to go straight to the point. What were their suspicions about him?

MR HERMANS: The suspicions that the workers heard were that the weapons, they suspected that there were weapons which were there because we got a report that there were whites who used to go there at night, they were using cars, sometimes they would come from the river, they were using boats. There was a river Umzimvubu and they were using boats in that river.

Some of the things that they thought that they were weapons, because they were in boxes, they were coming from the direction of the river.

MR ZILWA: ... by the ANC office from the workers of Costello, that Costello's house was being used by some other whites to smuggle weapons in Port St Johns, is that what you are saying?

MR HERMANS: That is correct.

ADV SANDI: Was that his evidence, I thought he said there were things that were in boxes and they were having, that in fact these may have been arms, weapons, they did not actually see them?

MR ZILWA: Maybe let's establish that from the witness himself. Could you please repeat this thing about the weapons there, were these weapons seen or was it a suspicion that there were weapons? Could you please come again and tell us about that?

MR HERMANS: The way in which they saw this, they suspected that these were weapons because they were heavy, especially the watchmen who was working there, staying there and sleeping in that house.

One day when he was trying to help his employer carrying these heavy things, his employer refused. Those were the things that made them suspect that something was wrong, they suspected that those might be weapons because he used to help him in carrying stuff.

MR ZILWA: Okay, so there were these suspicions that there were these things that were thought to be weapons, being smuggled in. Please carry on.

MR HERMANS: All these things were brought by the workers, they were problems of the workers. Because there were rumours that Costello was a member of the AWB, we then tried to investigate from the workers so that we can get more information because we were interested in that because we had heard rumours that he was a member of the AWB.

Even though we didn't get concrete evidence that those were weapons and the situation is as they were putting it to us, but we saw that when we were having meetings, there were a lot of cars around that would leave at night, and we would combine what the workers told us, together with what was happening. That showed us that even though we were not sure, there was something like that, that maybe he was a member of the AWB and there were weapons which were coming to that area.

ADV DE JAGER: Where was Costello living? Where was his house and his business?

MR HERMANS: In town.

MR ZILWA: Let's carry on.

MR HERMANS: The other thing that happened is, what we got from the workers, was that he said that he was moving away from Port St Johns. A removal truck came to take his furniture and everything as he was actually relocating. He left with his wife, but what actually surprised us, he didn't actually leave, as he is still there even today. The place continued to be their place of rendezvous.

MR ZILWA: When you say they, you are talking about Costello and who else?

MR HERMANS: And the whites who used to visit his place.

CHAIRPERSON: Where does he stay now?

MR HERMANS: I was sentenced while he was still staying there at Port St Johns.

MR ZILWA: Please carry on.

MR HERMANS: All that actually raised our suspicions and we could see actually that Costello was exactly what we thought because of his actions. Just before I left that place in 1992 ...

CHAIRPERSON: What did he do that strengthened your suspicions?

MR HERMANS: The information that we would get from the workers that he would have visitors coming from the direction of the coast, and the parcels that were suspected as weapons. People from the office would visit Costello to try and solve the problem of the workers.

We would not get respect from him, we would not get an opportunity to discuss with him, to discuss matters with him. That became a problem and some of the workers were dismissed and there were problems which were never solved, because it was difficult for us to meet and discuss with him.

CHAIRPERSON: I am confused, assume that you were correct in your, and he was a member of the AWB and there was a movement of the AWB in the area, and they were importing arms, how did that effect you, or your political parties?

MR HERMANS: I am not sure, if you can give me the opportunity to clarify this, because I was still narrating this story about Costello. Maybe some things that were actually effecting us, would actually be revealed in the process of trying to narrate this story about Costello.

I wonder if you can give me that opportunity? In 1992, October or September if I am not mistaken, during a launch of the Communist Party, we had our flags that were outside the hall and we also had our marshals who were there to keep peace outside. While we were inside, in the process of launching, cars came from outside Port St Johns coming in to Port St Johns, they came to the hall where the launch was being held.

They surrounded the place, they were hooting with hazards on. That took actually a long time because there were cars who couldn't pass on the road, they had to wait for this demonstration to come to an end.

CHAIRPERSON: What did Costello have to do with that?

MR HERMANS: I am still telling the story, that is not yet the end.

When they finished, they left and they took the direction of the beach front, they left Costello behind.

ADV SANDI: Sorry, you say they left Costello behind. Let's get that clear.

MR HERMANS: These cars left after this demonstration, sort of. They went towards the direction of, they went to the second beach and they left Costello's house, they did not get into Costello's house. They did this next to Costello's house, the hall was next to Costello's house, that is where they were doing this thing.

MR ZILWA: Who were the people that were doing this ruction?

MR HERMANS: White people that were unknown to me because there were even bikes behind, motor bikes behind. What we actually noticed, the cars that were coming in, in Costello's house holding a meeting there, among the cars that were there, disrupting the meeting, there was a van that was identified as a van that used to be seen in Costello's house.

ADV SANDI: I think the translators did not translate this very clearly. Can you repeat what you have just said. You have suspected that some of the cars were there on the day, they were causing that problem. Can you repeat what you have just said.

MR HERMANS: The cars that were disrupting the meeting, the launch of the Communist Party, as that was something that used to happen to see whites visiting Costello's house in the meeting, during this meeting, these meetings, sometimes would see cars that look like the cars that were there around the hall during this day of this launch of the Communist Party.

In 1992, I think it was November or December or towards the end of the year, when I was on my way to Durban with my father, he had hired a bus to transport some people because it was a festive season, we boarded the bus to Durban. There is a white man who came, wearing short pants, khaki short pants and a khaki shirt with a bag behind his back.

I saw this man in the morning before half past six as I went to town to buy milk to make my father's coffee, I saw him getting out of Costello's house, I did not know where he was going at that time. Later I saw him boarding the bus.

He was from Costello's house. On our way, we were far away, we were out of Transkei, I can't remember where we were at the time, this white man was talking, telling the people that he was a member of AWB. He is from a certain mission at Port St Johns, he did not explain the type of a mission that he was involved in, but we later realised that he was drinking white brandy, colourless spirits.

He said all those things, though I could not understand him clearly, because most of the time he was using Afrikaans language. I reported that to the ANC office in the Branch at Port St Johns.

MR ZILWA: Yes?

MR HERMANS: We realised that we were under difficult conditions, we have to refer the matter to the upper level, that was the sub-region. That was not the end of our efforts, I think Mr Guleni and Mr Ntekiso who was the then Chairperson of the ANC, at Port St Johns, at the time and we also reported the matter to the Umtata region of Umtata, where comrade Ndahonde was a Chairperson, and Fizula Bengu was a Secretary.

We requested them to refer the matter to the Department of Umkhonto we Sizwe in the offices of the ANC. I am sure that they did so. They reported what I just told you about Costello.

What I am trying to indicate here is that the comrades from Flagstaff, Lungile Mazwi, Maxhayi and Nyalukana is what made them to think about Port St Johns when Chris Hani died. That is exactly what made them to think about retaliation after the death of Chris Hani.

MR ZILWA: Do you refer to the subregion as the people from Flagstaff?

MR HERMANS: That is so.

MR ZILWA: Did you sometimes hold joint meetings with them?

MR HERMANS: Yes, that is correct.

MR ZILWA: In the course of such joint meetings, did you report to them the problem that you conceived to be having in Port St Johns regarding Costello and his AWB?

MR HERMANS: That is so.

MR ZILWA: Are you saying that is why when this, when Chris Hani was killed, they thought of Port St Johns as the most appropriate place to come and launch the attack?

MR HERMANS: Yes, that is correct.

MR ZILWA: Okay, please carry on.

MR HERMANS: What happened there at the sub-region, myself and Guleni, we were given a mandate to visit all the Branches and ensure that we do get the real report about our suspicions, that there was some infiltration by white people and what was actually happening about Costello, what I have just told you now.

I can say that we did that investigation, but I want this to be clear, that we did not get enough time because the period was actually very busy, trying to canvass for the elections of that year and the other duties that had to be performed by the Congress.

Therefore, we did not get the concrete information about that, until the day of Chris Hani's death came.

MR ZILWA: Okay, you have told us about this fellow who you say resided in Port St Johns, in town. Now I want you to talk about the other outlying coastal areas and in particular in Gomolo. Was there anything untoward that you suspected pertaining to this areas, especially Gomolo?

MR HERMANS: Yes, that is so. There is a beach front, there is a coast called Mdageni at Gomolo. That is not far from the coast called Mbande where these white people were killed.

Some of the information that we gathered from the comrades from that rural area, was that they used to see Costello there, holding meetings and we thought that those meetings are the same meetings as, as similar to the meetings that were normally held at his place.

MR ZILWA: You say you received information from the comrades who reside next to those coastal resorts, that Costello was holding meetings in those coastal resorts, meetings similar to those that were held at his house in Port St Johns, in town?

MR HERMANS: That is correct.

MR ZILWA: Now, when you heard that information, what did you conceive to be happening at those coastal resorts, Mbande in particular?

MR HERMANS: Both of these coastal resorts, we regarded them as their base, where they plan their things that can actually disturb the freedom of operation in our organisation.

MR ZILWA: Right, now with that conception in mind, please carry on. So Chris Hani was killed and the comrades from Flagstaff arrived in Port St Johns. Please take it from there and continue?

MR HERMANS: Even the Mbande coastal resort, became one of the places where Costello would go to. We used to get this from the comrades who would report this to the office because they had some knowledge about Costello. They also had a hearsay knowledge.

After Chris Hani's death, comrades from Lusikisiki came on a Monday, I think it was on the 12th, they came with a view that we should do something to retaliate Chris Hani's death.

They said that they were thinking about Port St Johns, the one that we told them about, and they asked us where those white people were at the time. We told them that they were around, there were some in town, but it is difficult to do something like that in town, because there were police and the camps, military camps, were there at the time, therefore the action would actually reach the ears of the police and it would actually disturb us from continuing with this mission.

We told them about these coastal resorts that were around. We agreed to visit those places, but the problem that we had, we did not have arms at the time. When we heard about the types of weapons they had, we were not satisfied that we had enough. We asked Nyalukana to take us to Zongizela Mxhiza who would try and organise some weapons, firearms, for us.

We arrived there at Mxhiza's place, we told him about the situation and our aims, but he did not have firearms at the time, he had to contact other comrades to get more firearms.

Some comrades who left with Zongizela to those comrades, who were said to be having arms, but those comrades refused to give them their firearms, because they also wanted to be part of this mission that we were planning.

We could not send them away, we had to leave with them, we had to take them with.

MR ZILWA: They wanted to be part of the mission, yes, please carry on.

MR HERMANS: We left for Gomolo. After we left a place called Tombo, where there is a tar road, that is leading to Umtata, just before we get to Gomolo, we stopped because it became clear that each and every person in this car, did not have a clear picture about the place that we were going to, accept myself. I tried to explain to them what type of a place, but still, we could not come to any conclusion as to how to do this operation.

We were forced to reach the place, so that the other people could have a clear picture about the place. We left for Gomolo. We arrived at Gomolo. We passed the intersection, we passed the intersection that was going to Mbaluweni, headed for a rural area called Mposhosho.

We alighted from the vehicle, all of us. We took a decision that one should take a car and drive and take the road that was going to Mbande and we decided to walk through a forest.

We arrived at Mbande, we decided that some people should go straight to those areas where, those areas that were identified as the places that were used by whites.

ADV DE JAGER: Can I just get clarity. You alighted and did only one of you drive with the car, proceed with the car?

MR HERMANS: Yes, that is so.

ADV DE JAGER: Who was that?

MR HERMANS: If my memory serves me well, I think it was Mr Mazwi.

ADV DE JAGER: Was that the previous witness?

MR HERMANS: Yes, that is so.

ADV DE JAGER: How many of you went through the bush?

MR HERMANS: It was seven of us.

MR ZILWA: Please carry on.

MR HERMANS: Myself, Guleni and the deceased Nyalukana, we went to a place where the white, the place that was used by these whites, when visiting Mbande.

MR ZILWA: In other words, ...(indistinct) to the cottages where they actually stayed?

MR HERMANS: Yes, that is correct.

MR ZILWA: Please carry on.

MR HERMANS: We met with a lady who said she was working there, we pretended as people who were looking for jobs. We wanted to know whether there were any whites there, we were told that there were no whites there, it is only a woman there.

The men had gone to another coastal resort, the one that I said is at Gomolo, Mdageni, they went there for fishing. There was also a child that we saw there, and we chatted with the child.

We left after that, we left the place and we went back to the other comrades.

MR ZILWA: Was it a white child, was it a boy or a girl, what sort of child was this that you chatted to?

MR HERMANS: It was a white child, I cannot remember whether it was a girl or a boy, I am not sure, that was long ago.

MR ZILWA: Okay, please carry on.

MR HERMANS: We went back to the other comrades at Mbande. We gave them the report of what we found there. We took a decision to wait at a certain spot and wait for them on their way back and meet with them.

We agreed that those who would be left in the car, Nyalukana, is supposed to hoot in the car to ensure that those were white men in the car and to ensure that there were only whites inside the vehicle, there would be no black person there.

When the car first appeared, Maxhayi, those who would be shooting, firing, and Fundisile Guleni, and one of those who refused with their firearms called Timan, I don't know his real name, they had to hide in some place, preparing themselves to fire.

MR ZILWA: You saw a car appearing at a distance and it is then that the ambush positions were taken by the people you have mentioned?

MR HERMANS: Yes, that is correct.

MR ZILWA: ... the ambush positions, had taken their positions, it was agreed that by way of a signal, if the occupants of the car were white males, Nyalukana was to hoot ...

MR SMUTS: A gender wasn't referred to in the evidence when it was translated Mr Chairman.

MR ZILWA: Mr Chairman, I think that is what the witness said. Maybe it could be clarified from him. Can you just repeat what you said about the arrangement, the arrangement regarding the hooting, I thought that is what you said, but just repeat it anyway.

MR HERMANS: What was going to happen was this, when the car appears, the car that was suspected as a car belonging to the whites, Vuyani Nyalukana would hoot if he is sure that this is the right target.

We realised that there were people, there were white men who left with the 4 x 4 vehicle, so we wanted to ensure that really in that 4 x 4, the occupants were white, the passengers were white, that is what we had to ensure.

We had to ensure that there was no black person inside. It came to us as we were standing next to the car when it passed, Nyalukana hooted. It disappeared at a corner when it was about to meet the others who were to attack, we heard gunshots. That is how they were shot.

MR ZILWA: Right, to cut your story short. You have listened to the evidence that was given by Maxhayi, regarding the occurrences from the time of the shooting, onwards.

MR HERMANS: Yes, that is correct.

MR ZILWA: Do you agree with the version that he gave regarding the occurrences after the car had come to the, well in any event, they had gone around the corner and out of your sight, I assume?

MR HERMANS: Yes, that is correct.

MR ZILWA: And from the point where you were, all that you could hear, were the firearm shots and you were not in a position to see what was actually happening?

MR HERMANS: Yes, that is correct.

MR ZILWA: Right, now from that onwards, will you take the version of Maxhayi, from there onwards, there is nothing in that version, that you don't agree with, or which you wish to supplement?

MR HERMANS: At the moment, I cannot think of anything.

MR ZILWA: To talk in particular about yourself, were you armed with anything on that day?

MR HERMANS: I was not armed.

MR ZILWA: So really, your principal role, even though you were part of the operation itself, but your physical activity there included actually identifying the place and actually proceeding to reconnoitre the place?

MR HERMANS: It is so, but I cannot dispute the fact that I was involved. If there were enough weapons, I would have had a weapon and I would have killed.

MR ZILWA: Yes, you were part of the operation, you freely admit that.

MR HERMANS: Yes, that is correct.

MR ZILWA: Now, it has stand out, we have been informed that in fact the people who were killed in this ambush, killed and injured in the ambush, were not in fact part of the Costello band of rightwingers, as you put it, the AWB, but they were innocent fishermen who had gone on a fishing trip. You have heard that, haven't you?

MR HERMANS: Yes, I heard that.

MR ZILWA: And you have no reason to dispute that, do you?

MR HERMANS: That is correct.

MR ZILWA: In view of that fact that in fact instead of retaliating to your targets, or your intended targets ie the rightwingers who were destabilising your area or your movement, in view of what you cannot dispute that in fact you shot at and killed innocent fishermen, how do you feel about that?

MR HERMANS: I cannot dispute the fact that we killed fishermen, as it is explained, but if they were really fishermen, I feel very bad about that because people that were not intended to be killed, died on that particular day.

MR ZILWA: If you had been aware before actually carrying on with the operation, that in fact this 4 x 4 carried not rightwingers who were destabilising your area, but just innocent fishermen, would you have continued with the operation of shooting and killing them?

MR HERMANS: We would not kill them, more especially if they would identify themselves as not being members of AWB.

MR ZILWA: Can you please repeat that?

CHAIRPERSON: How do you expect them to identify themselves as not being rightwingers, when they didn't even know of this ambush?

MR HERMANS: I mean that if there was a way for us to ensure that they were not members of AWB, it was not that we were expecting them to do so, but it is something I don't even know how was it going to happen, but at least if there was a way of, for us to ensure that they were not the target. I am not expecting that to be done, I was not expecting that to be done by them.

MR ZILWA: Right, now we have been informed by those who have testified before you, that you had a rough idea that this was to be a series of operations and Port St Johns was just the starting point. Do you also agree with that evidence?

MR HERMANS: Yes, that is correct.

MR ZILWA: Had you come to concrete agreements or plans as to which targets were going to be next and how you were going to carry on your following operations?

MR HERMANS: No, that is not true.

MR ZILWA: Was there any particular criteria that you had intended to use in choosing your targets for this retaliation?

MR HERMANS: Yes, because places that we would think about, we would have to contact the comrades from that particular area and get their views on how do they identify the enemies, what people are regarded as their enemies.

MR ZILWA: Now, Maxhayi has informed us that after this 4 x 4 had been shot and it had overturned, then you were taken to your respective areas and they of Flagstaff, left for Flagstaff. You confirm that, don't you?

MR HERMANS: Yes, that is correct.

MR ZILWA: Now, we have also heard from Maxhayi that after they heard the call of President Mandela appealing for calm and for people not to let their anger and grief get the better of them, and not to take the law into their own hands, it was decided that similar operations should not be undertaken any more, do you confirm that?

MR HERMANS: Yes, that is correct.

MR ZILWA: If you had heard or you had received the message even before the operation itself, that the leadership of the ANC, especially President Mandela, had made that appeal, would you have commenced with that operation at all?

MR HERMANS: Surely we would not continue.

MR ZILWA: If it was to be suggested to you that even at the time you did the operation, you were aware of the stance of the African National Congress, that is a stance against political violence, and that your operation itself was going contrary to that stance, what would be your response to that?

MR HERMANS: Yes, that is true that the policy of ANC is against violence, but what I would like you to know is the fact that the Self Defence Units were the Units of Umkhonto we Sizwe, or affiliated to Umkhonto we Sizwe, whereby during their training, they were being trained by the members of Umkhonto we Sizwe and the same Self Defence Units would be in situations whereby they had to take an initiative and decide upon something, according to conditions prevailing at the time.

MR ZILWA: If it were to be suggested that you knowingly acted against the ...(indistinct) of the ANC regarding violence, would you agree with that proposition in those prevailing circumstances at the time?

MR HERMANS: Yes, ANC as the liberation movement, we would have some disagreements.

MR ZILWA: I don't know if you understand my question. Please listen carefully. I am saying if it would be suggested that your operation constituted a violation of the policy of the ANC of non-violence, viewing the circumstances surrounding the death of Chris Hani and everything that was happening at the time, would you agree that you knowingly acted contrary to the policy of the ANC?

MR HERMANS: If you explain it that way, that is not true, because in the ANC, the ANC at large was, it was not accepted, the death of Chris Hani was not accepted, though he was totally against violence.

MR ZILWA: When you carried on the operation in retaliation for that death of Chris Hani, what did you hope to achieve, what objective did you hope to achieve by your action?

MR HERMANS: The objectives if one can remember, we used to see the, view the negotiations, see the negotiations at World Trade Centre that the whites were actually hiding the truth because there was an agreement to suspend the armed struggle during the negotiations.

But, what was happening in front of our eyes and in front of the whole nation, people were dying and the government of the day, was involved. An example of that is Boipatong incident. That actually gave us a view that at World Trade Centre, there was some hide and seek going on.

We wanted the then government to feel the pressure, we wanted to exact pressure on the government, to bring some concrete measures that would lead to the liberation of the people of South Africa.

For example, I remember just before the date of election was announced, it was very difficult for them to actually say the date. We wanted to pressurise them to set a date of the election.

MR ZILWA: Did you entertain any fears that any leaders of your organisation such as Chris Hani, might suffer the same fate as Chris Hani, did you have any such fears?

MR HERMANS: Yes, that is correct. We wanted to convey the message that if it happened again, as Chris Hani was killed, it is something that cannot be tolerated. We wanted them to take note that if that happened with the other leaders who were also in the list, as Chris Hani was the first person on the list, so we wanted to ensure that that doesn't happen, and we wanted them to know that they cannot continue because of our pressures.

MR ZILWA: Are those things you have mentioned, the political objective which you wanted to achieve by your action?

MR HERMANS: That is correct.

MR ZILWA: Is there anything else which you have not disclosed to this Committee regarding everything that occurred that you can think of, pertaining to this incident?

MR HERMANS: Are you referring to the operation itself?

MR ZILWA: As you are sitting here, you are asking for amnesty, and now one of the requirements is that you must make a full and complete disclosure of all the relevant or material facts pertaining to the incident, in relation to which you are seeking amnesty.

What I am asking you is, is there anything else that you can think of which you feel you have not mentioned, because in order to qualify for amnesty, you must make a complete and full disclosure?

MR HERMANS: If there is something else, maybe it is forgotten, but I can't think of anything at the moment.

MR ZILWA: Now, to the families or relatives of your victims, your innocent victims as it seems to turn out, now, what would you like to say to them regarding the loss of their beloved ones in your hands?

MR HERMANS: To the relatives of the victims, I apologise and I would like to request them to understand the fact that I did what I did, under the situation at the time, during the then government with the aim of achieving liberation or liberation for the whole nation, under the difficult conditions and oppressions that we were under.

As I am deeply sorry, this is - all that I am saying is from the bottom of my heart. If I had power, if I had power to raise them from their graves, I would do that, but unfortunately I cannot do that.

MR ZILWA: Thank you Mr Chairman, this is the evidence Mr Chairman.

CROSS-EXAMINATION BY MR SMUTS: Mr Hermans, you were Publicity Secretary of the ANC Youth League, is that correct?

MR HERMANS: That is correct.

MR SMUTS: Were you still Publicity Secretary of the Port St Johns ANC Branch in April of 1993?

MR HERMANS: No.

MR SMUTS: When did you occupy that position?

MR HERMANS: In 1992 - from 1991.

MR SMUTS: What was the role of the Publicity Secretary?

MR HERMANS: It was to inform people of the area about the meeting to be held and I would be in contact with the region, in order to get someone from the region.

CHAIRPERSON: As Publicity Secretary you would also be charged with distributing information about policy as it changed from time to time?

MR HERMANS: That is correct.

CHAIRPERSON: You were aware during 1993, April, that the ANC had publicly taken a non-violent stand, correct?

MR HERMANS: That is correct.

MR SMUTS: Did you inter alia receive the regular statements from the ANC Department of Information and Publicity which conveyed the policy and approach of the organisation to events, as they occurred?

MR HERMANS: Yes, there were such things in the offices of the ANC.

MR SMUTS: And at no stage, prior to the attack on the 13th of April 1993, to your knowledge, was there any change in the policy of the ANC?

MR HERMANS: That is correct.

MR SMUTS: In what manner did you learn of the death of Mr Chris Hani?

MR HERMANS: I heard this from people in town, but I didn't believe it. I didn't believe that that was the truth, but late that day, I watched the television news and then I was sure that Chris Hani died.

CHAIRPERSON: When you watched the news, did the State President perhaps make an announcement there or addressed the nation? I am talking about Mr Mandela?

MR HERMANS: No. I didn't see him that day.

MR SMUTS: Did you have any interest in seeking to stay informed of the investigations into the shooting of Mr Hani and the response of the nation to that shooting?

MR HERMANS: Please repeat your question sir.

MR SMUTS: After you heard of the death of Mr Hani, did you show any interest in trying to obtain any information regarding the investigations that had been launched into the shooting and further, did you show any interest in seeking to establish what the response was across the nation to that shooting?

MR HERMANS: No, I didn't think about that, because I was feeling very bad at that time.

MR SMUTS: Were you not interested in finding out whether the killers had been arrested and could be brought to justice?

MR HERMANS: I wouldn't say that, I wouldn't know that I was interested at that time, but what I know is that I was feeling very bad at that time. I wouldn't notice whether I was interested in that or not. I was concentrating on my emotional involvement.

MR SMUTS: So, did you not watch the news on television or listened to the radio news or read newspapers after that?

MR HERMANS: What are you referring to, about what?

MR SMUTS: This amnesty application deals with a set of circumstances, and circumstances that you have illustrated are that your actions were a response to the killing of Mr Chris Hani.

I am asking you whether you sought to follow on television news, on radio or in the newspapers, news coverage of that event in the days following that event?

MR HERMANS: No.

CHAIRPERSON: Before this incident, did you listen to an address by Mr Mandela calling for calm and restraint and not taking the law into your own hands, and so forth?

MR HERMANS: No, I didn't hear that before the attack.

MR SMUTS: When did you become party to a decision to take any form of action in consequence of the shooting of Mr Hani?

MR HERMANS: We spoke about this, myself and Guleni, because we were working together, but we became involved in the decision when the comrades from Flagstaff arrived.

MR SMUTS: And formulate as precisely as you can, what that decision was in which you became involved.

MR HERMANS: It was a decision that as there were suspicions and as we saw certain things, we should retaliate in Port St Johns, especially on the coast, not in town.

MR SMUTS: Did you make a decision as to the manner in which you were going to retaliate?

MR HERMANS: Yes, we did.

MR SMUTS: What was the nature of the decision regarding the manner in which you were to retaliate?

MR HERMANS: We decided to go and attack this coastal area, because at that time, we suspected that it was a base of the whites.

We decided that it was not the only place that we were going to attack, we would continue attacking even though at that particular time, we didn't discuss where to go after attacking that area. But we have made a decision that we would start at that area, and then continue afterwards.

MR SMUTS: You are obliged to make a full disclosure if you are to be granted amnesty Mr Hermans. You say you decided to attack the coastal area, was it no more precise than that?

MR HERMANS: As I have already said that in Costello's house, these cars used to come there and we found out about Costello and that he would go to this coastal areas and as I have already said, that in those meetings that were being held in Costello's house, there were cars that we suspected that they were the ones surrounding the hall when we had a meeting.

Those cars, there were 4 x 4 and Toyota's amongst the cars, we then went to that coastal area.

MR SMUTS: One individual in an area whom you had identified as a potential member of the AWB, was Mr Costello, is that correct?

MR HERMANS: Where?

MR SMUTS: What area are you talking about Mr Hermans? Ii am talking about Port St Johns.

MR HERMANS: That is correct.

MR SMUTS: But the one person that you had identified as a suspected member of the AWB, you resolved not to attack?

MR HERMANS: That is correct. Please explain your question, it is not that we would not attack him, but we would not attack in town because there were police in town. If he was on those coastal areas, we would attack him because he was the one we wanted, but because there were police in town, we couldn't attack in town.

MR SMUTS: But you were happy to attack people who happened by whatever means, to find themselves in a geographic area where at some or another time, Mr Costello held meetings, the nature of which you had no direct information about?

MR HERMANS: I don't understand your question, it is not clear.

MR SMUTS: Well, I will ask it until it is clear Mr Hermans. Mr Costello was the man that you had identified as the suspected AWB member?

MR HERMANS: Correct.

MR SMUTS: Because he was in the town, you were not going to risk your own safety by attacking this man whom you suspected of being an ANC member?

MR HERMANS: Correct.

MR SMUTS: You were happy to attack people who found themselves in a specific geographic area, because of the fact that at some or other stage Mr Costello had held meetings in that area? Is that correct?

MR HERMANS: That is correct.

MR SMUTS: You had no direct information of the nature of those meetings that he had held there?

MR HERMANS: That is correct, but there were suspicions about those meetings.

ADV DE JAGER: Where did he have these meetings?

MR HERMANS: Sometimes in his house and other whites would come in his house, and sometimes as I have already said, he would go to the coastal areas in Gomolo.

ADV DE JAGER: You see the coastal area is quite an area, but if you've got a meeting and somebody saw him having a meeting, I suppose they would be able to say he had a meeting in that house on the coastal area? Did they inform you which house he had a meeting in, what month he had the meeting, how many meetings did he have?

MR HERMANS: No, they didn't tell us.

ADV SANDI: Sorry Mr Smuts, the people who were conveying this information to you about meetings, did they tell you what issues were being discussed at these meetings?

MR HERMANS: No, they wouldn't know what was discussed because they would not attend the meeting.

ADV SANDI: Was there some sort of unwritten rule that Mr Costello could not hold a meeting at his house or at any place in that area?

MR HERMANS: No.

ADV SANDI: What was wrong about Mr Costello holding meetings if he did in fact hold such meetings with such people?

MR HERMANS: As I have already said here, the workers said that Mr Costello said he had nothing to do with the Workers' Union and the ANC, he was a member of the AWB. Meetings were held, such meetings were held and that made us not to trust him.

That brought suspicions to us that those meetings were not good meetings, or there was something wrong.

MR SMUTS: You don't know, do you, Mr Hermans, whether those meetings discussed religion or good wine?

MR HERMANS: No, I don't know.

MR SMUTS: You don't know what the contents were of boxes that were carried into the home of Mr Costello?

MR HERMANS: No, I don't know.

MR SMUTS: You don't know that he was a member of the AWB, you suspect that?

MR HERMANS: We suspected that because we heard the rumours, and when I saw the white man coming from his house when we were on our way to Durban, then our suspicions were more, we had more suspicion.

ADV SANDI: I think Mr Smuts, he said the workers reported that Mr Costello had told them that he was a member of the AWB, so I think it was something more than a suspicion.

MR SMUTS: That is correct Mr Chairman. He said that now. He certainly did not say that when he was being led and so it is an embellishment on the evidence, but it seems he seems to have reverted to the previous contention that it was a suspicion.

At best Mr Hermans, you were able to associate Mr Costello with rightwing activity by virtue of what you heard in a language you didn't properly understand from the man who you saw leaving Mr Costello's house and boarding the bus in a khaki set of clothing, is that correct?

MR HERMANS: Correct.

MR SMUTS: Was there any reason to believe that every person with whom Mr Costello came into contact or even who came into his house, was a member of the AWB?

MR HERMANS: I don't have a reason for that.

MR SMUTS: And there was no evidence that the meetings that were held along the coast, were AWB meetings or even political meetings?

MR HERMANS: That is correct.

MR SMUTS: You knew the area where the victims of your attack were on holiday, did you not?

MR HERMANS: I knew that place.

MR SMUTS: You knew it well?

MR HERMANS: Yes.

MR SMUTS: Did you have relatives in the area?

MR HERMANS: Yes, that is the village, that is my village.

MR SMUTS: Did you grow up there?

MR HERMANS: Please repeat your question.

MR SMUTS: Did you grow up there?

MR HERMANS: That is correct.

MR SMUTS: Does a relative of yours run a shop there?

MR HERMANS: Correct.

MR SMUTS: How is he related to you?

MR HERMANS: He is my father's brother.

MR SMUTS: Did you know that for many years, white people had come to holiday in that area?

MR HERMANS: Yes, that is correct.

MR SMUTS: Did you know when you went to the area to launch the attack, that it was a holiday period?

MR HERMANS: Yes.

MR SMUTS: You were one of the party that went to reconnoitre the camp where the white people were staying at that time, is that not so?

MR HERMANS: That is correct.

MR SMUTS: What was the purpose of going to investigate the area?

MR HERMANS: First of all, we wanted to make sure that there were white people that we could see, that we could attack them, they could be attacked.

Secondly, I had to take people to go and see the place, so that they could come back and give information back to those who were left behind about what we found out in that area.

MR SMUTS: By the time that you went to the area, had you decided that if there were white people in the area, they were to be attacked?

MR HERMANS: It would depend on who was there, what kind of white people were there.

MR SMUTS: Well, what kind of white people were you prepared to attack and what kind of white people were you not prepared to attack?

MR HERMANS: The white people that were suspected to be involved or that were associated with Costello who was a member of AWB, and if they were men, if there was no child or a woman, they would be attacked.

MR SMUTS: So was there an express agreement that if there were children in the party, there would not be an attack?

MR HERMANS: Yes, that is what we agreed upon. Even though we had different views, some of us thought that we should attack anyone, but we then decided that if we were retaliating, we should not hit or attack children and women.

MR SMUTS: The question was put to Mr Maxhayi whether if there were women and children, they too were appropriate targets, and his response was that if it would send the appropriate message, then they would be appropriate targets. Are you saying there was agreement to the contrary?

MR HERMANS: Yes, that is correct.

MR SMUTS: You disagree then with the position as stated by Mr Maxhayi?

MR HERMANS: I wouldn't say I disagree with him, because if there were women there, and we saw that we could attack them, we would sit down and discuss this.

If there were valid reasons that we should attack them, even though they were women, maybe we would have agreed on that.

MR SMUTS: How were you to identify whether the people that you found, if you found them, were associated with Mr Costello to the extent that they fell within the target group?

MR HERMANS: First of all, we had hearsay information that Costello was associated with whites in Mbande. What we were to check was whether the whites were in that coastal area in Mbande, there were no other whites in other coastal areas.

If we found concrete evidence or if we found out that they were associated with Costello who was a member of the AWB, for example, when we were told that they went to Mdakeni, that surprised us because we thought that why would they go to Mdakeni to fish, why didn't they fish in Mbande, where they were staying and they were in that area, Mbande, the area that we heard this information about.

The area Mdakeni, we also heard information about that area. Those things were not concrete evidence, but our suspicions, they raised our suspicions.

MR SMUTS: These people whom Mr Costello according to your hearsay information, would have been meeting at Mbande, did they live there?

MR HERMANS: We found out that they were sleeping there. They went to Mbande for fishing and then they would go back and sleep there.

MR SMUTS: They slept where when you say they slept there?

MR HERMANS: In Mbande.

MR SMUTS: That is why I am asking you, was it your information that they were living at Mbande?

MR HERMANS: Yes, that is correct.

MR SMUTS: They were not holiday makers, they were residents?

MR HERMANS: They were not resident, they were visiting.

MR SMUTS: Well, when was it your information, had Mr Costello held these meetings at Mbande?

MR HERMANS: In 1992, I am not sure about the month, but it was towards the end, it was after June in 1992, when we got this information.

CHAIRPERSON: Was it only one meeting, or a series of meetings, or what is the position?

MR HERMANS: There were a lot of meetings, it was not only one meeting.

CHAIRPERSON: The question is directed at that, your information that you received, can you give us an idea of how often such meetings would be held at the coast?

MR HERMANS: We didn't get a clear information of how many meetings, but the people from those villages didn't come once to report about these meetings. I wouldn't be sure, I don't remember getting such an information explaining how many times they had those meetings.

MR SMUTS: Why do you refer to them as meetings?

MR HERMANS: It is because they did not report in our office only once, about such meetings.

MR SMUTS: Did you have any reason to believe that they were not social gatherings?

MR HERMANS: I wouldn't say we suspected that there were just, we didn't suspect that they were social gatherings, but we heard that Costello says that he is a member of the AWB and I also saw a person coming from his house, saying that he was a member of the AWB.

Even if it was a religious meeting, because I was not there, I would assume that it was not a religious meeting, because we knew about Costello's actions or movements.

MR SMUTS: Your information regarding meetings at the coast, came to you in 1992?

MR HERMANS: That is correct.

MR SMUTS: The attack on your victims took place on the 13th of April 1993, during a holiday season?

MR HERMANS: That is correct.

MR SMUTS: When you went to reconnoitre the camp, what efforts did you make to discover whether the people whom you were about to attack, had even been in the area in 1992 when these meetings were held?

CHAIRPERSON: Before you answer that, is it correct that the reports about meetings that were supposed to have been held in that area, had ceased in 1992?

MR HERMANS: No, I wouldn't say that they ceased in 1992.

CHAIRPERSON: Can you give us an idea of when was the last report before this incident, of such a meeting?

MR HERMANS: There were such reports about these meetings, they didn't stop reporting about these meetings. That is why we took a decision to go to the sub-region. I am not sure, but it was in the beginning of 1993, I think it was March, but I am not sure.

ADV SANDI: Sorry Mr Smuts, from those reports you concluded that these people were dangerous?

MR HERMANS: Yes, we saw it that way.

ADV SANDI: Were you expecting that these people could shoot at you, once you attacked them?

MR HERMANS: That is correct, we expected that.

ADV SANDI: Why did you go there that day, without being armed, you had no firearm. Why did you do that?

MR HERMANS: It is because we agreed that there would be a weapon for us, for people who were left in the car, because it was clear that we would not go and attack, all of us. There would be a weapon with us in the car, for our protection.

As it has already been said, there were handgrenades in the car, and if anyone of us would see a need for us to be protected, we would use those handgrenades for our protection.

ADV SANDI: Did you sincerely believe that these people would fire back at you?

MR HERMANS: We expected that, that we might be shot because you wouldn't go to a person and be sure that he was not armed. You would expect anything that would be dangerous and you would be prepared for that.

ADV DE JAGER: When you went down to find out whether there were white people staying there at the coast, you met a woman there, a lady. Is that correct?

MR HERMANS: That is correct.

ADV DE JAGER: You told us she was working there, is that correct?

MR HERMANS: She said she was working there.

ADV DE JAGER: Were there any other white people or only this one bungalow with white people? Was she working for those people at the bungalow?

MR HERMANS: We didn't see any white people at that time. We didn't investigate, but as these white people were not there who was left behind, we just heard that the white people who were there, were gone. We just heard that there was a lady, but we didn't see her.

ADV DE JAGER: Yes, and you were looking for jobs, so you enquired whether there were other people who could give you jobs, didn't you?

MR HERMANS: I don't remember. I don't want to lie, I don't remember. It might happen that we asked, but I don't remember.

ADV DE JAGER: And this lady working there, told you that there was an old lady and a child there at the house, and the others left to go fishing, isn't that correct?

MR HERMANS: That is correct.

ADV DE JAGER: Did you ask her whether she was working for these people?

MR HERMANS: Please repeat your question.

ADV DE JAGER: Did you ask this lady whether she was working for these people, who had gone fishing and who left behind the old lady and the child?

MR HERMANS: We were not sure whether she was working for them. We didn't ask.

ADV DE JAGER: For who else could she have been working?

MR HERMANS: We assumed that she was working for them, but she didn't say it.

ADV DE JAGER: Okay, now you assumed she was working for them. Did you ask her whether they were staying permanently there or whether they were visitors or whether they were holiday makers, what was the position?

MR HERMANS: We found out that they were visitors, we found that from her.

ADV DE JAGER: So you found out that they were visitors? If they were visitors, did you envisage that they would attend Costello's meetings in the previous year and in March and all the other times?

MR HERMANS: Yes, that is correct because that was one of the coastal areas, Mdakeni, they went to Mdakeni one of the coastal areas that Costello used to have meetings.

ADV DE JAGER: So didn't Costello have meetings here where they were staying, at that coastal area? What was the name Mbande?

MR HERMANS: As I have already said before, the two coastal areas, we got a report that Costello was seen in those two coastal areas. He had meetings there in both coastal areas.

ADV DE JAGER: This lady working there, was she from that area, did she stay there? Did you know her, you are from that area?

MR HERMANS: I didn't know her.

ADV DE JAGER: Didn't you ask her where are you from, are you from Grahamstown or are you from Kokstad or from wherever?

MR HERMANS: This lady?

ADV DE JAGER: Yes, because she is working for these people?

MR HERMANS: No, we didn't ask her.

ADV DE JAGER: She would know whether they were only visitors coming to make a holiday? It would be easy to find out?

MR HERMANS: According to my knowledge, when the whites arrived there, the visitors, they would take people from the villages near by, that was what used to happen. I didn't want to ask whether they came with her, I just assumed that she was from the area, but I didn't know her personally.

ADV DE JAGER: Okay, you have assumed now that she was from the area, then she would have known whether these people are only there for a weekend, whether they are coming for a week or whether they were staying there, or whether they are attending meetings. Isn't that so?

MR HERMANS: Maybe she was supposed to know.

ADV DE JAGER: But you didn't enquire?

MR HERMANS: No, we didn't ask.

ADV DE JAGER: Was that because you didn't want to know whether they were holiday makers or not?

MR HERMANS: I think it is because we didn't think about that.

ADV SANDI: You were not, sorry Mr Smuts, you were not interested to know from this Mama you say you were talking to, you were not interested to know as to whether the people who had gone out for fishing, whether they were frequent holiday makers in that area?

MR HERMANS: I wouldn't say we were not interested. At that time, I didn't notice any interest because of the situation I was under, because Chris Hani was killed, because of the death of Chris Hani.

Even you say, you know that if you do some, if you are angry and you do something, there are mistakes that you do or make and you realise them afterwards.

CHAIRPERSON: Yes, Mr Smuts?

MR SMUTS: Thank you Mr Chairman. Mr Hermans, if I may go back to your evidence relating to Mr Costello whom you suspected of being a member of the AWB, what was his business?

MR HERMANS: He was the owner of a Supermarket.

MR SMUTS: Were you aware of any other business that he conducted?

MR HERMANS: No. Not at all.

CHAIRPERSON: Do you know the day the South African Communist Party was launched, you say there were a number of cars and a lot of disruption of that launch. Did you see these cars and people hooting outside that hall?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: You described what they did there, as a protest.

MR HERMANS: That is correct, yes.

CHAIRPERSON: During this what you call a protest, and then you looked at these people, did you see any flags or posters or such like articles?

MR HERMANS: No.

CHAIRPERSON: So you are in no position to say exactly apart from your suspicions, who these people associated with or which political party they associated with when they were protesting like that?

MR HERMANS: I cannot say anything else, besides my suspicions.

MR SMUTS: I received instructions during the lunch hour Mr Hermans ...

ADV DE JAGER: Did you see Mr Costello there at this protest?

MR HERMANS: No, I did not see him.

CHAIRPERSON: Didn't you say when they left, they left him behind?

MR HERMANS: I was trying to say that his house, as his house was next to the hall, when they moved from the hall, they left, they did not get inside Mr Costello's yard, they went straight to the second beach. That is what I was trying to explain.

MR SMUTS: Mr Hermans, I received instructions during the lunch hour, that Mr Costello runs a guest house. Are you in a position to contest that?

MR HERMANS: No, I cannot dispute that but the guest house that is there, is actually far from Mr Costello's house and it does not belong to him.

MR SMUTS: What does that mean, that you are contesting that he runs a guest house, or that you do not contest that he runs a guest house?

MR HERMANS: I do not dispute that, though I did not hear anything about it.

MR SMUTS: If that were indeed so, it may explain gatherings of people and vehicles, might it not?

INTERPRETER: Can the speaker please repeat the question?

MR SMUTS: If indeed he was running a guest house, that could explain why there could be gatherings of people and numerous vehicles assembled at one place?

MR HERMANS: Yes, I understand that, but I am not sure if that is the case, if that was the case.

MR SMUTS: You will concede that there could be a perfectly innocent explanation which has no political connection, to gatherings of people at his home?

MR HERMANS: Will you please repeat your question?

MR SMUTS: You will concede that there could be a perfectly innocent explanation, which has nothing to do with a political organisation, explaining gatherings of people at his home?

MR HERMANS: I don't have anything except what I have just mentioned.

MR SMUTS: If I might take you back then to your reconnaissance exercise down to the camp on the day of the shootings. What did you find when you got down to the camp?

MR HERMANS: We did not see anything, except the people that I told you about, the people that we saw.

MR SMUTS: Which people were those?

MR HERMANS: The woman who said she was working there, and the child that we saw at the place.

MR SMUTS: There would have been two vehicles there Mr Hermans, did you not see those?

MR HERMANS: I cannot say whether I saw them or not, but I did not take note. I cannot say that they were not there or they were there.

MR SMUTS: There would have been two women and four small children, who were in and out of the accommodation in which they were staying on that morning?

MR HERMANS: I heard so, but I don't know, I hear that, but I don't know anything about that.

MR SMUTS: And do you recall that during your trial, Ms O'Keeffee who is sitting in the front row, gave evidence that she passed a person who was walking through the camp that morning and that she pointed you out as that person?

MR HERMANS: Are you talking about the State witness?

MR SMUTS: Yes.

MR HERMANS: Yes, I do remember that.

MR SMUTS: Do you - can you tender any explanation as to why she would have given such evidence if it were not true?

MR HERMANS: Please repeat the question.

MR SMUTS: She gave that evidence, and she identified you as the person. You were the person, a person who was at the gate that morning, were you not?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: What is the dispute Mr Smuts?

MR SMUTS: The witness Mr Chairman, denies having seen anybody other than the person employed there and a child. Do you persist in suggesting that you did not see the two white women and the four children, well, more than one child there on the morning at the camp?

CHAIRPERSON: Can you remember if you saw her at the camp that morning?

MR HERMANS: I said at the camping site, I saw a lady who said she was working there and this child only.

CHAIRPERSON: Can you dispute that she saw you in that area that morning?

MR HERMANS: Are you talking about the witness, the place that he was talking about is far away from the camp, it is not even at the place, so there are two different things.

At the camping site, I saw the people I said I saw them. The person who claimed to have seen me, saw me somewhere else, outside the camp, not right inside the camp.

ADV DE JAGER: Did you see this lady sitting here, Ms O'Keeffee at the camp on that morning?

MR HERMANS: No, I did not see her.

MR SMUTS: Once you saw that there was a child at the camp, did you make any enquiries from the lady to whom you were speaking, as to whether there were children in the fishing party?

MR HERMANS: No, I did not ask her.

MR SMUTS: Why not?

MR HERMANS: I have already said that we were under, we were very angry about something that had happened. There would be things that we couldn't do. Secondly we were in a hurry, we wanted to do whatever, very quick. After gathering that information that some men had gone to fishing, we decided to wait for the people who had gone fishing.

MR SMUTS: Did it not matter to you whether there might be children amongst them?

MR HERMANS: That doesn't mean that we didn't care.

MR SMUTS: What steps did you take to avert the possibility that children might be injured in the attack which you were to launch?

MR HERMANS: We anticipated that we would be able to see a car, a child if he or she is inside the car. Thereafter we didn't anticipate anything.

ADV DE JAGER: Sorry, I don't quite follow what your answer was. We anticipated that we would see children in the car, thereafter we didn't anticipate anything. What are you trying to convey to us?

MR HERMANS: I am trying to say that we were not prepared for anything before we could see the car, as we had to ensure that there were no children in the car, we thought that we would be able to see the car at the time of the attack, to see if there were children in the car.

MR SMUTS: Wasn't it the instruction that Mr Nyalukana's focus should be on whether there were any black people in the car?

MR HERMANS: What was important for us, was for him to check whether there were whites in the car and there was no African, there was no black person in the car.

There was no specific instruction, we were just discussing, so he took it from there. It was not that he was instructed to do so.

He took it from what we were discussing.

MR SMUTS: But your concern was as to whether there might be black people in the vehicle, there was no concern as to whether there might be children in the vehicle?

MR HERMANS: I said so, that we were also careful not to attack the children, because they were not out target.

MR SMUTS: Who was to keep the lookout then, if you were now careful as to the presence of children or not, who was to watch out as to whether there were children or not?

MR HERMANS: That was a responsibility of all the people who were left in the car, during the attack?

MR SMUTS: When the 4 x 4 then approached with its five occupants, what positions did the various members of your group take up?

MR HERMANS: We were, all of us were standing next to the car. The one who was inside, was the one who was going to give a signal by hooting.

MR SMUTS: Where were those who were to fire upon the vehicle?

MR HERMANS: As I have already said, they were just behind the - they were somewhere, after the bakkie had taken a curve, they were somewhere there, just behind the curve, where the bakkie was shot.

MR SMUTS: Were there then three of you, according to your evidence, three of you standing next to the bakkie, one in the bakkie and three who had taken up the ambush position?

MR HERMANS: We were eight, three of them were there for the ambush, four of us were standing outside the car, and there was only one person inside the car.

MR SMUTS: Those of you who were standing next to the vehicle, were you standing open and clearly visible to the occupants of the 4 x 4 as it approached?

MR HERMANS: Yes, that is correct.

MR SMUTS: You never took up a position in which you hid yourselves?

MR HERMANS: Not at all.

MR SMUTS: And that is notwithstanding your evidence earlier that you expected to be fired upon once the attack started?

MR HERMANS: Can you please repeat the question sir, I don't follow it.

MR SMUTS: In your earlier evidence, you testified to an expectation that you would be yourselves fired upon by the occupants of the 4 x 4, once you had started the attack upon them.

MR HERMANS: That is correct, yes.

MR SMUTS: Notwithstanding that expectation, and the fact that you were unarmed, you never at any stage tried to hide yourselves?

MR HERMANS: It is clear that we were, we knew what we were doing because we were checking up on any movement that would take place, if we had noticed that they were trying to make some movement, we would take cover and it is always easy to take cover behind the car.

MR SMUTS: I want to suggest to you that the reason why you never found it necessary to take cover, was that there was never any prospect nor did you have any expectation of being fired upon by the fishermen.

MR HERMANS: I disagree with that, we expected to be attacked.

MR SMUTS: Was the hooter of your vehicle sounded as the 4 x 4 came passed?

MR HERMANS: Yes.

MR SMUTS: (Microphone not on)

MR HERMANS: To indicate to the other group that it was the right time to attack.

MR SMUTS: Was that the signal that all the occupants of the vehicle were white?

MR HERMANS: Yes, that is correct.

MR SMUTS: If it was possible to ascertain that all the occupants of the vehicle were white, then clearly it must also have been possible to ascertain that two of the occupants, were children?

MR HERMANS: I think that did not need any special attention, because it was bright, it was daylight. We did not have to pay much attention on that aspect. It was clear.

MR ZILWA: In fact Mr Chairman, I think maybe the interpretation, I am not sure that it is very correct. Maybe the witness should be asked to repeat what he had stated.

CHAIRPERSON: Can you repeat what you had stated?

ADV DE JAGER: Couldn't you perhaps assist us? Couldn't you perhaps assist us because I believe you understand the language quite well? It may be that in rehearsing the question, he wouldn't follow it as in the first place.

Your legal representative, couldn't he assist us.

CHAIRPERSON: Mr Zilwa, can you tell us what he said?

MR ZILWA: Oh, yes, I could, I thought you were talking to the witness, Mr Chairman. I think he said it is clear to recognise white colour, so it was not difficult for us to recognise that the occupants were whites. I think that is what he said.

CHAIRPERSON: Given that, it wasn't you that did the - who was at the lookout, not so?

MR HERMANS: I said the people who were left next to the car, were the people who were responsible for the lookout. I was also one of them.

CHAIRPERSON: So you could see who was in the car?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: Did you not see that there were children in the motor vehicle?

MR HERMANS: No, I only saw that while reading the newspaper, that there were children in the car.

CHAIRPERSON: If you were able to see the colour of their skin, how is it that you couldn't say whether they were adults or children?

MR HERMANS: The other thing is this, if those were children, maybe they were right inside, because the adults that we were sure about, they were just on the side. I remember the one had his arm exposed through the window, and even those who were inside, it was not clear that there were not children.

Therefore we got confused, therefore we believed that all of them were adults.

CHAIRPERSON: Did I understand your evidence correctly earlier, that you specifically looked out if the occupants of this motor vehicle, to establish whether there were any blacks in it and to check if there were any women or children, not so or did I misunderstand you?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: So, you established there is no blacks there, correct?

MR HERMANS: Yes. Are you saying that there were not blacks inside the car, black people inside the car?

CHAIRPERSON: As I understand your evidence, you established that there were no blacks inside that motor vehicle?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: You established there were no women in the motor vehicle?

MR HERMANS: It looked like, to us it looked like there were no women inside, but we were sure because we were told that the people who had gone fishing, there was only one woman who was left behind. We took it as if there was no women in the car, and that is the way we saw things.

CHAIRPERSON: Did you establish how many adults and how many children there were in the motor vehicle?

MR HERMANS: No.

CHAIRPERSON: You were specifically posted there, you were one of the people specifically posted in that position, to establish that? Not so?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: Wasn't that done?

MR HERMANS: We did that. As I am saying, we just saw the people who looked like men to us at the time, and it seemed there were no children in the car. It was actually a surprise to us to find out later that there were children in the car.

CHAIRPERSON: Mr Smuts, how old were these children?

MR SMUTS: Mr Chairman, the boy who now sits in the front row, he is 16 years old, he was 11 at the time, and Mr Rumble's son, Brett was 7.

CHAIRPERSON: Seven?

MR SMUTS: Yes, Mr Chairman.

CHAIRPERSON: There is a seven year old child in the motor vehicle, and you tell me that you were unable to establish whether it was a child or not?

MR HERMANS: That was a van with a canopy. When it passed, the only people that were easily identifiable were the people who were sitting on the sides. Those were just in between, it was not easy for us to say whether they were men or women, but there was no indication of a child either.

I am not sure whether there were children who were 11 years old, maybe they were taller when sitting on their seats, and they looked like adults, but the car was in motion.

Therefore it was very difficult for us to see. Some of the things didn't happen, we couldn't see some of the things.

CHAIRPERSON: Mr Smuts, I don't know if we are going to get anywhere on this issue.

MR SMUTS: Thank you Mr Chairman, I think in fairness to the witness I must clarify the one aspect where he says that the people were sitting and they could only see those sitting on the sides.

Thomas O'Keeffee, the 11 year old, was sitting on the right hand side of the vehicle, directly behind the driver. He could see the people on the side, he must have been visible to you on your own evidence?

MR HERMANS: What I am saying is this, I saw an adult. If that was him, to me he looked like an adult. That mistake happened.

MR SMUTS: I am going to suggest to you Mr Hermans, that the gender and the age of the passengers of that motor vehicle, were unimportant to you. It was only the race with which you were concerned?

MR HERMANS: I think it was important, maybe it was not important more than our mission.

MR SMUTS: Mr Hermans, I would like to canvass with you aspects of the confession proved at your trial which appears in the judgement in the bundle, Mr Chairman, the text thereof from the bottom of page 8.

I wish to canvass it with you Mr Hermans, from page 9 at line 15. You had set out in that confession that you had been at the ANC offices and then you discussed how on the 12th of April, five of you gathered at the bus rank and proceeded to a certain open space by car and at line 15 it says, we then discussed the tragic incident and as to what we should do.

We then resolved that as Chris Hani had been killed by a white person, we should also kill a white man. Does that correctly reflect the decision that was taken by you and your colleagues from Flagstaff?

MR HERMANS: I am not sure whether you want to ascertain whether that was true, or it is something that I said in court. I am not sure what is it actually that you want to ascertain.

MR SMUTS: Listen to the question and we will get through it a whole lot quicker. Does that correctly reflect the decision taken by you and your colleagues from Flagstaff?

MR HERMANS: No.

MR SMUTS: Where is it contained in your confession?

MR HERMANS: In court sir, it should be clear that we were lying, that should be understood that we were lying there.

MR SMUTS: I appreciate that Mr Hermans, and that is why I ask you about this, because you denied this confession in court.

ADV DE JAGER: Didn't you agree to kill a white man because a white man killed Mr Hani?

MR HERMANS: Are you talking about the court?

ADV DE JAGER: No, not at court, after you left the office and the five of you gathered together, what did you resolve there, who are you going to kill?

MR HERMANS: We had to kill a white person, but not just any white person, but a person whom we think that we associate that person with that situation with Costello's situation, as a member of AWB and the fact that there were suspicious white people who used to visit his place.

That was not just an ordinary white man.

ADV DE JAGER: It was not an ordinary white man, but in the first place, we could hear the rest later, in the first place, you resolved to kill a white man, isn't that so?

MR HERMANS: Yes, in the sense that we regarded a white person as an enemy, a person who was actually associated with Mr Costello.

MR SMUTS: So, when you said this in your confession, it was correct, but not detailed enough, is that what you are saying?

MR HERMANS: Yes, that is correct.

MR SMUTS: What should it have said?

MR HERMANS: It should have clarified the fact that we intended to attack a white person, and the fact, and it should show a category, a criteria that we had views to identify that person as an enemy.

MR SMUTS: Was that criteria some link or other with Mr Costello?

MR HERMANS: Yes, that is correct.

MR SMUTS: Well, then I would like to canvass with you the next sentence in that confession, which reads as follows:

CHAIRPERSON: Mr Smuts, before we go on there, as I remember reading as I understand, that the contents, this confession was contested?

MR SMUTS: That is so Mr Chairman, there was a trial within a trial, and it was then ruled admissible.

CHAIRPERSON: To what extent are we bound by that finding?

MR SMUTS: Well, Mr Chairman, that is one of the drawbacks in the Administrative decision taken to deny this Committee access to the record. If one had been able to canvass the record against the evidence now tendered, the Committee may have been placed in a position to make its own assessment.

CHAIRPERSON: What would have been the position of the status of this document, had the ruling been that it was inadmissible? Could you rely on it?

MR SMUTS: No Mr Chairman, I am canvassing sentence by sentence with the witness.

CHAIRPERSON: Would you be able to rely on it had it been found inadmissible?

MR SMUTS: No Mr Chairman.

CHAIRPERSON: Hence my question, to what extent am I bound by that finding?

MR HERMANS: Mr Chairman, I don't think it is a finding that relates to this Committee, it relates to the admissibility of the evidence in those proceedings. So it doesn't have a bearing here.

If the witness wishes to tender evidence about the circumstances, he is entitled to. It wasn't disputed that the statement was made.

CHAIRPERSON: You see, what gives me difficulty, if that document was not supposed to have existed in the first place, then it casts some type of doubt on us to whether you are able to use it.

MR SMUTS: Mr Chairman, until the witness denies having made it, it is on the face of it, a statement which he made and if he wishes to tender whatever explanation he now seeks to tender, for saying what he then said, then the Committee will obviously wave that explanation in the context of all the evidence that is tendered.

CHAIRPERSON: I think you are right.

MR SMUTS: Thank you Mr Chairman. Mr Hermans, your statement continues, there was a difference of opinion as ...

CHAIRPERSON: Don't you think we must warn him of the possibilities and give him his rights and let him choose?

MR SMUTS: He is represented Mr Chairman.

CHAIRPERSON: Under cross-examination, I think Mr Zilwa is loath, perhaps I must do it then. Mr Hermans, you are being referred to a confession that was used in your trial, in the High Court, in Umtata.

Do you understand that?

MR HERMANS: Yes, I understand that.

CHAIRPERSON: I understand that during those proceedings, you disputed the admissibility of that confession.

MR HERMANS: That is correct.

CHAIRPERSON: It was nonetheless ruled admissible.

MR HERMANS: Are you talking about the confession?

CHAIRPERSON: Yes.

MR HERMANS: Yes, that is correct.

CHAIRPERSON: I just want to point out to you that at this hearing, it is a different hearing. If there is anything that you want to put in dispute once again, then you are entitled to do so. You are not bound by the finding of that Court, in respect of the admissibility of the confession.

Do you understand that?

MR HERMANS: Yes, I understand that.

CHAIRPERSON: Mr Smuts, I am going to allow Mr Smuts, to continue asking questions related to the contents of that statement. Do you understand that?

MR HERMANS: Yes, I understand sir.

CHAIRPERSON: It will be up to you to dispute anything or raise issues which renders the question invalid or inadmissible, do you understand that?

MR HERMANS: Yes, sir.

MR SMUTS: Thank you Mr Chairman. At line 17 of your statement, line 17 on page 9 of the confession as quoted in the judgement, the following sentence occurs after you had explained that you had decided to kill a white man: there was a difference of opinion, as our organisation does not promote racialism, we foresaw problems in identifying the victim as to who was for us or against us.

Was there in fact a difference of opinion amongst the five of you?

MR HERMANS: No, there was no such argument.

MR SMUTS: Is it correct that your organisation does not promote racialism or racism, racial discrimination?

MR HERMANS: Yes, that is correct.

MR SMUTS: How did this sentence come to be pertained in your statement?

MR HERMANS: It is clear that it is inserted because that is what I said at the time.

MR SMUTS: Why did you say it at the time?

MR HERMANS: I was talking because I thought I was saying anything that was going to save me from conviction.

CHAIRPERSON: What do you mean conviction?

MR ZILWA: I think there is a problem with the interpretation, I think the proper thing that he said is I was saying something that would make things easy for me in court.

ADV SANDI: I must confirm that, Mr Zilwa has been listening to both Xhosa and English. He did not specifically say conviction. He said that to save his skin, that is what he was saying Mr Zilwa, not so?

CHAIRPERSON: To what extent would the contents of this confession, save your skin? How did you think it was going to save your skin?

MR HERMANS: I thought that was going to save me so that I could not get a sentence.

CHAIRPERSON: Did you hope that you would get a sentence other than, or that you would avoid a sentence by admitting to murder?

MR HERMANS: Even if I was to get a sentence, I thought that at least the sentence would not be as severe.

CHAIRPERSON: Yes, Mr Smuts?

MR SMUTS: How would including a sentence which explains a difference of opinion because your organisation does not promote racialism, in your view, effect the possible sentence which could be imposed upon you?

MR HERMANS: That would depend on the Presiding Officer, that would look like, I think the Magistrate would regard me as a person who is prepared to cooperate and as a person, he would look at me as a person who was prepared to bring the truth forward. That would depend on him.

I also want this to be understood that the confession, I did the confession under pressure, unwillingly.

CHAIRPERSON: That is what I can't understand. On the one hand you say you made the confession and its contents was made in the hope that you would find, or the Magistrate or whoever was going to decide on your fate, would approach the issue very leniently because you would be a person who has indicated that he is being cooperative and from whom the absolute truth was forthcoming. That you say on the one hand, on the other hand you say you made this statement under duress.

Somewhere something isn't right. Can you explain it?

MR HERMANS: I mean that when I went to do this confession, I was from the police. police who were actually assaulting me and harassing me and they threatened me and they said if I don't say anything that was right in front of the Magistrate, I will go back and experience the same torture that I was getting from them.

Therefore I went there unwillingly, I was forced because if I was not forced to do so, I wouldn't go there, but because of what they did, I had to go to the Magistrate and at the same time, I tried to save my skin from, I tried to save my skin as I have already explained.

MR SMUTS: Thank you Mr Chairman. Can I ask you one last time, are you saying ...

CHAIRPERSON: Is that a promise, one last time?

MR SMUTS: How was your skin to be saved by including in your confession, an account of a dispute between you and others relating to the identification of your victim because your organisation did not promote racialism?

CHAIRPERSON: Isn't it because it was the truth? He wanted to be a truthful cooperative witness, being put unwillingly though, put in this position, and he might as well, he decided he might as well take advantage of the situation and be a cooperative and truthful witness? Isn't that so?

MR HERMANS: Yes, that is correct, as I have already said.

ADV DE JAGER: Did you in fact then use those words and stated it?

MR HERMANS: Yes, that is correct.

ADV DE JAGER: And was it true that you discussed it between the five of you and said to each other, our organisation wouldn't admit racialism. Was there such a discussion?

MR HERMANS: No, we never had that discussion.

ADV DE JAGER: So you never had a discussion whether you should identify a white to be killed, and who the white should be?

MR HERMANS: Our intention there, as Mbande was used as the base, the whites who happened to be there at the time, we would regard them as John Costello's associates. Those were the issues that we discussed, not the one that appears on this confession.

ADV DE JAGER: You didn't regard them as the associates of Dr Hally?

MR HERMANS: No.

ADV DE JAGER: Did you mention Dr Hally's name in this so-called confession?

MR HERMANS: Yes, Dr Hally, yes, it appeared.

ADV DE JAGER: Why did you mention his name?

MR HERMANS: I explained that in court, that Dr Hally's name came from me, because I had policemen, when they were torturing me, they were talking about this camping site of Mdakeni because they said that they think that is the place that Dr Hally normally visits.

I wanted to be released from this torture, I used that point. That is how this name came about.

ADV DE JAGER: Why didn't you use the name of Costello?

MR HERMANS: It is because we were not prepared to tell the truth in court.

CHAIRPERSON: No, in your statement?

MR HERMANS: That did not occur to me.

CHAIRPERSON: But wouldn't that have been the truth in terms of your beliefs, in terms of the information that you had received?

MR HERMANS: You mean if I tell that to the police, if I had told that to the police?

CHAIRPERSON: Let us just read that, we then resolved to go to a certain camping site near the coast, where some white people spend their weekends, including Dr Hally. Instead of Dr Hally, Costello?

MR HERMANS: I was not prepared to bring something that would implicate me more, in court. That was the truth that I wrote there.

CHAIRPERSON: So Dr Hally was a person who spent his weekends in that area?

MR HERMANS: As far as I am concerned, I don't know that.

CHAIRPERSON: You knew Costello had something to do with that area over weekends, and perhaps even some other days, not so?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: And you gave that to the Magistrate, being forced in that position, you decided I am going to tell the truth in the hope that I will receive some leniency for being truthful and for being cooperative, not so?

MR HERMANS: Yes, that is correct.

CHAIRPERSON: So why didn't you tell the truth about Costello then, as you believed it was the truth?

MR HERMANS: I was running away from that truth, the one that would lead to my sentence. That is why I said so. I thought that if I bring that, if I gave them that information, although I did not reveal that information about Costello, I did not think about it.

MR SMUTS: Mr Hermans, is it your evidence that the police were applying duress to you to compel you to confess your involvement in the murders and attempted murders for which you are now seeking amnesty?

MR HERMANS: Yes, that is correct.

MR SMUTS: And is it your evidence now that you made this statement to stop them from applying that duress to you, in other words to satisfy them in their requirement that you confess?

MR HERMANS: Yes, that is correct.

MR SMUTS: Well, if it was not so that you had a difference of opinion within your organisation, because of the fact that yours was not a racist organisation, but you put it into the statement, how did you think that was going to satisfy this pressure that the police were putting on you to confess your involvement in the crimes?

MR HERMANS: They were satisfied the way I saw them, because they never pressurised me thereafter, after that torture.

MR SMUTS: They were satisfied, because what they wanted was a confession of your involvement in the attack, and that you gave them, not so?

MR HERMANS: I was saying anything that I think would save me from them.

ADV DE JAGER: Who were these police who tortured you?

MR HERMANS: From the Murder and Robbery of Umtata, Murder and Robbery Department of Umtata.

ADV DE JAGER: Were they black policemen?

MR HERMANS: Yes, that is correct.

ADV DE JAGER: Were they in the employ of the Transkeian government at that stage?

MR HERMANS: Yes, that is correct.

MR SMUTS: Thank you. Why was it necessary for you to give an extended explanation of your motivation, if what the police were seeking from you, was a confession as to the act?

MR HERMANS: I was answering the questions they were asking.

MR SMUTS: No you weren't, you were speaking to a Magistrate.

MR HERMANS: Can you please repeat your question sir.

MR SMUTS: You weren't answering the questions they were asking, you were speaking to a Magistrate who had recorded this statement.

MR HERMANS: You were referring to the police, that is why I answered about the police.

MR SMUTS: I wasn't referring to the police at all. I am asking you, why if the police wanted you to make a confession to the Magistrate of your involvement in the crimes, was it necessary for you to give an extended motivation as to why you committed that crime?

MR HERMANS: What I said to the Magistrate, to this confession, I already said that to the police and they wrote it down. They told me to tell the Magistrate what I had already told them, or else I would go back to them and they would continue with whatever they were doing to me.

MR SMUTS: If they, if you had told the police about Dr Hally and his involvement in the Mdakeni area, even if you confessed to the Magistrate to your involvement in the crimes, if you had mentioned to the Magistrate the truthful position that it was Mr Costello's associates and not Dr Hally's associates that you were after, you feared that the police would continue doing to you what they had done to you before, is that your evidence?

MR HERMANS: Yes, because I was not sure whether they would see what I told the Magistrate. I was sure that they would see the confession that I gave to the Magistrate and if it is different from what I told them, I would be in trouble.

ADV SANDI: I think Mr Smuts, he is trying to say that as I understand him, he is trying to say when he went to the Magistrate to make this confession, he structured the contents of the confession in such a manner that he would cover those aspects which arose in the questioning by the police. I think that is what he is trying to say.

MR SMUTS: In your view, were the police more concerned about your repeating what they had said to you, than in your making, what you had said to them previously, than in your making just a full and frank confession of your involvement in the crime?

ADV DE JAGER: Mr Smuts, I think, sorry, you put a question to him, let him answer that first.

MR HERMANS: Please repeat your question sir.

MR SMUTS: Do you believe, or did you believe that the police were more concerned that you should repeat to them in precise detail what had gone, what you had said to them before you made the confession to the Magistrate, than simply that you go to the Magistrate and admit your, confess your involvement in the crimes?

MR HERMANS: They told me to do so.

MR SMUTS: Mr Hermans ...

ADV DE JAGER: We haven't heard the interpretation of the answer.

MR SMUTS: What I understood is that they told him to do so, was the interpretation.

ADV DE JAGER: Mr Smuts, at the end of the day we will have to decide whether the act was associated with a political objective. I think it will play a role, the evidence that they wanted to kill somebody associated with Costello and whether that was in fact, at the time of the occurrence, one of their criteria for picking the victim or whether they decided that they should kill a white, because a white had killed Hani, and they would kill any white.

As it transpired, whether they intended to kill a particular white associated with Costello, in fact they killed the first white they came across. Whether that would satisfy the criteria of the Act, I don't think we will get any further in further cross-examination, but I don't want to stop you. I think we should, you should consider whether you could achieve anything more than that and whether it even if they killed the first white, whether it wouldn't still fall within the ambit of the Act?

MR SMUTS: Yes, thank you Mr Chairman, there are two legs which need to be considered here. The one is the political motivation, but the other is the frankness of the matter now being placed before the Committee.

Whether it meets the requirements of the Act.

CHAIRPERSON: Mr Smuts, really full disclosure means substantial disclosure. Whether he used Dr Hally or Costello, it is a side issue, really.

MR SMUTS: The veracity of either is critical though, with respect. With respect, Mr Chairman, would you grant me the indulgence of pursuing this through another two or three questions and then I think the groundwork, the basis of my approach would become apparent.

Is it correct Mr Hermans, that in your confession to the Magistrate, there is no reference to Mr Costello or your seeking to identify a victim linked to Mr Costello?

MR HERMANS: That is correct.

MR SMUTS: Your confession does refer to problems in identifying a victim because it was of a difficulty in determining who was as your confession says, who was for us or against us.

MR HERMANS: Can you please repeat that sir?

MR SMUTS: Your confession refers to a difference of opinion between you and your foreseeing problems in identifying a victim as to whether the person was for you or against you? Is that correct?

MR HERMANS: Can you please explain that to me sir?

MR SMUTS: It says the following, there was a difference of opinion as our organisation does not promote racialism, we foresaw problems in identifying the victim as to who was for us or against us.

MR HERMANS: I hear you sir.

MR SMUTS: It continues, we then decided to leave Transkei and go to an area that was within the RSA.

MR HERMANS: Yes.

MR SMUTS: It continues, we then also realised even there we would be unable to identify our enemy.

MR HERMANS: I hear you sir.

MR SMUTS: And it then continues, we then resolved to go to a certain camping site near the coast where some white people spent their weekends, including Dr Hally.

ADV DE JAGER: You have told us you hear him, was it the truth, did it happen in that way or didn't it happen in that way?

MR HERMANS: It didn't happen this way, when we were together to attack.

ADV SANDI: Mr Hermans, I understood you to say that when you made this confession to the Magistrate, what was uppermost in your mind, was simply to satisfy the police, not so?

MR HERMANS: That is correct.

ADV SANDI: You were not concerned about the accuracy of whatever goes in there, but simply to make the police happy and stop pressurising you?

MR HERMANS: That is correct. I was not prepared to tel l the truth, you wanted to satisfy the police?

MR HERMANS: Yes.

ADV DE JAGER: If that is the position, did you ever discuss whether this victim would be for you or against you? Would he support you or would he be against you, did you ever discuss that?

MR HERMANS: Who will be for us or against us, sir?

ADV DE JAGER: The man that you were going to shoot, to kill, would he be a supporter of your organisation or would he be against your organisation?

MR HERMANS: The person we were going to shoot, the person we were going to shoot, was the person whom we associated with Costello because of the rumours we heard.

I don't follow the question.

ADV DE JAGER: And in the end, you never ascertained whether the person you shot, was a supporter of the ANC although he is white, or whether he was against you?

MR HERMANS: We didn't think about that because we didn't expect an ANC person who would be having fun in the coastal area at the time of Chris Hani's death.

MR SMUTS: May I pose it marginally differently, were you alert to the fact that not all white people might fall within the ambit of what you describe as the enemy?

MR HERMANS: That is correct.

MR SMUTS: Was it accordingly important that you should identify that those whom you eventually did decide to attack, indeed fell within the definition of the enemy as you saw it?

MR HERMANS: That is correct.

MR SMUTS: Did you make any effort, other than to determine a broad geographic area, within which you may find white people, to determine that those you were attacking, were in fact the enemy?

MR HERMANS: We didn't make such efforts, but we used the information we heard, we used the hearsay or the rumours.

MR SMUTS: Have you ever before today, in any statement, declaration or application, mentioned Mr Costello in connection with your wish to identify a victim for your operation?

MR HERMANS: No, I didn't mention his name.

MR SMUTS: You didn't mention his name in your application form, filled in on the 3rd of April 1997?

MR HERMANS: I wouldn't be sure, I don't remember very well.

MR SMUTS: You didn't mention his name in your affidavit of the 1st of April 1998?

MR HERMANS: The application of 1998?

MR SMUTS: The affidavit?

MR HERMANS: I don't remember mentioning it.

MR SMUTS: Was it explained to you what the requirements were, that you should make a full disclosure if you were to secure amnesty when you proceeded in these applications proceedings?

MR HERMANS: I was told.

MR SMUTS: But you didn't make any mention of Mr Costello before today?

MR HERMANS: It is because I knew that I was going to appear before the Truth commission and I would get a chance or an opportunity to do all that.

MR SMUTS: You had an opportunity when the form was completed which was coming to this Committee, why didn't you do it then?

MR ZILWA: Mr Chairman, for all fairness, I think the witness has answered the question. He says I did fill in the form, I did make an application, I did know that for my application to be granted, I had to make a full disclosure. I knew I was still going to come and give viva voce evidence before this Commission, which I am now doing. I think that is an answer to the question, he has answered the question.

CHAIRPERSON: Costello, in terms of your evidence today, seems to me to have been an important cog in the whole operation, not so?

MR HERMANS: That is correct.

CHAIRPERSON: Wouldn't you have thought that when you filled in Form 1, that while we don't expect every detail, that such an important cog would at least be mentioned?

MR HERMANS: I didn't think that.

MR SMUTS: Hasn't Mr Costello's name come up in your evidence for the first time, Mr Hermans, because he is mentioned in Mr Guleni's form one, and it is important that you should tell the same story?

MR HERMANS: I didn't hear him talking about him.

MR SMUTS: Are you saying that you have had no regard to the application presented on behalf of Mr Guleni?

MR HERMANS: That is correct.

MR SMUTS: Have you spoken to Mr Guleni, he is one of your fellow applicants, concerning this application and the evidence you are to give?

MR HERMANS: We spoke about what happened in Port St Johns, the things that we both know and the steps that we took about reporting, about Costello. We then made the applications.

MR ZILWA: I think for the interpretation to be full, he says we spoke about that before we made the application, but we knew at some stage we would be making the application.

MR SMUTS: Can I get clarity on that. Are you saying that you conversed with Mr Guleni before your application form was completed?

MR HERMANS: Yes.

MR SMUTS: And did you speak about what it was, that it was necessary for you to present as your application?

MR HERMANS: We were reminding each other about things that were happening in 1992. Things that we knew that we were supposed to say here in the Truth Commission, things that led us to do what we did.

MR SMUTS: And that critically centred around identifying Port St Johns as a target because of the activities of Costello?

MR HERMANS: Because we found out there was infiltration in Port St Johns, and it involved Costello.

MR SMUTS: This discussion you had between the two of you before you submitted the form which was completed for your application for amnesty?

MR HERMANS: Yes.

MR SMUTS: And yet your explanation on that form is silent regarding Costello?

MR HERMANS: We didn't decide to put his name on the application form, because I knew that I would appear before the Truth Commission, where I would reveal everything.

ADV SANDI: So you wanted to catch us by surprise Mr Hermans, and mention this Mr Costello for the first time?

MR HERMANS: That is not the case.

MR SMUTS: In launching the attack which you planned and executed on the 13th of April 1993, in the interests of what group or organisation, were you acting?

MR HERMANS: We were acting in the interest of the ANC and its allies, Communist Party and COSATU.

MR SMUTS: We have established that you sought no authorization from any organisation for this action?

MR HERMANS: That is correct.

MR SMUTS: We have established that you were aware that the ANC was committed to non-violent action at this very time?

MR HERMANS: That is correct.

MR SMUTS: To your knowledge, there was no alteration in that policy before you committed these acts?

MR HERMANS: That is correct.

MR SMUTS: How were you promoting the interests of the ANC and its associates in the light of its commitment to non-violence when you launched this attack?

MR HERMANS: First of all, I wanted to be clear that when the ANC and the then government made an agreement that the armed struggle was to be suspended and there had to be no violence, that was said to the Self Defence Unit, they were not to attack and they were not there to attack, but they would defend.

We did that, we were defending as the Self Defence Unit.

MR SMUTS: Well, let's get that clear for the record. Is it your contention that on the 13th of April 1993, when you lay in wait for this fishing party on its return to Mbande ...

CHAIRPERSON: I think let's be fair to the witness, Mr Smuts, he didn't regard them as only a fishing party.

MR SMUTS: When you lay in wait for this party that you had been advised had gone fishing, with in your midst an automatic firearm, pistols and handgrenades, and with the intention to attack the occupants of that vehicle, is it your contention and your serious contention, that this was an act of defence?

MR HERMANS: Yes, that is correct.

MR SMUTS: At what stage could it become an attack if that was defence?

MR HERMANS: It wouldn't be an attack according to the Self Defence Unit, it would be an attack if a person was doing whatever he was doing, not under the organisation. For example if a person went out to rob, that would be an attack.

MR SMUTS: Is a difference between this action and an attack, simply the fact that there was no theft in addition to the violence that was applied to the occupants of the vehicle?

CHAIRPERSON: Mr Smuts, didn't he say so at the beginning, towards the beginning of his evidence, that this was retaliation in order to send a message to those who thought they could continue assassinating the witness' leadership?

Be that right or wrong, that is what he said.

MR SMUTS: Yes, but it goes further now Mr Chairman, the suggestion now is that this was an act of defence, not an act of retaliation.

CHAIRPERSON: If you look at it in context, I won't argue about the matter, it is that he was defending the leadership that was still alive.

MR SMUTS: If you were promoting the interests of the African National Congress, has that organisation at any stage claimed your action as its own and is it prepared at this hearing, to state so on your behalf?

MR ZILWA: Mr Chairman, I don't want to be seen to be wanting to be objecting, but I must say I am not very sure about the fairness of the question.

The witness says in his belief, or in their belief, they believed that they were carrying on the objectives of the ANC, they were protecting its leadership. That is what they subjectively believed at the time.

As to whether or not the ANC viewed it in the same way or not, I am not sure that that is something that at this stage, the witness should be asked about.

CHAIRPERSON: Tell me, did you prior to this hearing, approach the African National Congress with a view of finding out whether they would accept that you acted in their interest, or don't you know?

MR HERMANS: I didn't meet them.

CHAIRPERSON: So you can't tell us?

MR HERMANS: Yes.

MR SMUTS: Do recall the evidence of Mr Ntekiso in your trial, which appears by reference at page 76 of the judgement, where he advised that he had reported to the regional command of MK, that Mr Maxhayi had informed him of the use of the R4 weapon in the attack, and that the regional command had distanced itself from that incident?

MR HERMANS: Yes, I heard him.

MR SMUTS: Do you know whether that is in fact so, MK, the regional command had distanced itself from that incident?

MR HERMANS: No, I don't know.

MR SMUTS: Is it your evidence today that the action taken by you on the 13th of April 1993, is and was at the time reconcilable with the policies of the African National Congress?

MR HERMANS: Killing people is not being promoted by the ANC, because it was a non-violent organisation.

ADV DE JAGER: The reference in the record where it was disapproved by the regional command, what page was that?

MR SMUTS: Mr Chairman, it is in the volume fronted Judgement and Sentence, Volume 1. Mr Ntekiso's evidence starts on page 63 and it is on page ...

ADV DE JAGER: The Volume is marked A or ...

MR SMUTS: It is not marked, it is called Judgement and Sentence, Volume 1, page 76 paragraph 5, Mr Chairman. Thank you Mr Chairman, I have no further questions to this witness.

ADV DE JAGER: But you have heard this evidence that it was disapproved at the trial, given by the regional MK command?

MR HERMANS: That is correct.

ADV DE JAGER: Have you done anything to ascertain whether it was in fact disapproved?

MR HERMANS: No, I didn't do anything.

MR MAPOMA: Chairperson, sorry for the sake of accuracy, this thing reads to the extent of saying that it was not approved by, I mean the regional command of the MK distanced itself from it, because it was not committed by the MK member. That is the reason for which it seems MK distances itself from it.

CHAIRPERSON: Not the act itself, but because of the line of command?

MR MAPOMA: Yes, that is what appears in this document.

CHAIRPERSON: Mr Mapoma, do you have any questions?

MR MAPOMA: No, I have no questions, Chairperson, thank you.

NO CROSS-EXAMINATION BY MR MAPOMA.

CHAIRPERSON: Mr Zilwa?

RE-EXAMINATION BY MR ZILWA: Yes, Mr Chairman, I do have a few. You have told this Committee, that at the time you committed the offence or the action, let's put it that way, you did that furthering the aims of the ANC and its alliances?

MR HERMANS: That is correct.

MR ZILWA: You say in so far as those organisations are concerned, you were furthering their interest in that you wanted to ensure that other members of its leadership in the position of Chris Hani, would not meet the same fate as Chris Hani?

MR HERMANS: That is correct.

MR ZILWA: If you had known that your actions would not be approved, or would be running contrary to such organisations, would you have committed the offence?

MR HERMANS: Please explain your question sir.

MR ZILWA: If you had known or you had any idea at all that your actions would not be approved by the ANC and its alliances, would you have committed that action?

MR HERMANS: No.

MR ZILWA: Do you view that your action in any way, did achieve the desired objective ie defending the other surviving leadership of the ANC and its alliance?

MR HERMANS: That is correct.

MR ZILWA: If you had known, let's put it this way, let's start again, you were questioned by my learned friend at length about the occupants of the motor vehicle in question, to you remember that?

MR HERMANS: Yes.

MR ZILWA: And you have told this Committee that it was not your intention to attack children and women, correct?

MR HERMANS: That is correct.

MR ZILWA: And you have also stated that in the camp itself, that is when you went to reconnoitre it, you did see a white child that was present there, you are not sure whether it was a girl or a boy?

MR HERMANS: That is correct.

MR ZILWA: If your intention was to kill anything white, whether it be a child or a family, would you have spared that child?

MR HERMANS: We would have attacked that child at that time.

MR ZILWA: Thank you Mr Chairman, I've got no further questions.

ADV DE JAGER: If Mr Costello was your real enemy, why didn't you go and kill him at night?

MR HERMANS: It is because he was staying in town, and there were police and there was a military camp there in town.

ADV DE JAGER: So you were looking at a soft target?

MR HERMANS: That is not true.

ADV DE JAGER: Wasn't that a soft target?

MR HERMANS: I didn't take them as soft targets?

ADV DE JAGER: Driving passed you, not as far as you could see, did they have any weapons with them?

MR HERMANS: We were not sure whether they had weapons or not, we were expecting that they might have weapons.

ADV DE JAGER: Far from the police, far from other people who could help them?

MR HERMANS: Yes, they were far from the police.

CHAIRPERSON: Yes, thank you.

WITNESS EXCUSED.

MR ZILWA: Mr Chairman, I notice the time is about quarter to four. I would be calling the last applicant Guleni, but I understand that this is the last day of our sitting today, and I always try to avoid a witness testifying and maybe getting cross-examined half way and maybe some months thereafter, he is cross-examined again. I always believe that plays ...

CHAIRPERSON: The most he will be inconvenienced, is overnight. We will finish tomorrow if he is not finished tonight.

MR ZILWA: Yes, but I must indicate that I had set aside only this two days for this matter and I have other commitments for tomorrow.

I am prepared to go on as long as the Committee wants, tonight.

CHAIRPERSON: Mr Zilwa, you know the rules of the Bar, to carry on until we give away work, not so?

MR ZILWA: No, the point I am making Mr Chairman, is that I was engaged in this matter only for two days, ie yesterday and today. Tomorrow I've got other word unfortunately because I only knew that I am engaged in this matter for two days.

CHAIRPERSON: I understand that, but when one takes a brief, any type of brief, it is understood that the matter may run over, is it not so?

MR ZILWA: Well, Mr Chairman, I always thought you can only reserve the dates on which the matter is set down and not beyond that.

CHAIRPERSON: Mr Zilwa, we are running an unusual hearing, let's not get involved in technicalities here. We have got restraints in time, State President has indicated that he is not going to extend the time of this type of hearings any more.

We need to complete the matter somehow. If you people want to finish it tonight, we can sit until we finish.

MR ZILWA: I prefer that Mr Chairman, I will be calling the next witness.

CHAIRPERSON: Let's be democratic about it a little bit. What do you say Mr Smuts?

MR SMUTS: Mr Chairman, I am not sure that that is fair to anybody, because these are longer sessions than ordinary court hours, and one needs to concentrate and keep control on what is happening.

As a compromise, would it not be possible for us possibly to hear the witness in chief, to have cross-examination tomorrow and to submit in due course, written argument which would allow my ...

CHAIRPERSON: Mr Zilwa said he is unavailable tomorrow.

MR SMUTS: Mr Chairman, there is very little that one can't effect with a cellphone in terms of organisation these days.

ADV SANDI: What time are you supposed to be ...(indistinct) Mr Zilwa tomorrow morning?

MR ZILWA: In fact I had other things to do for tomorrow, but I suppose if we could adjourn maybe for ten minutes and I could see if I could make other arrangements for tomorrow, even though I had already planned other things for tomorrow.

CHAIRPERSON: When do you finish your commitments that you had planned for tomorrow?

MR ZILWA: Mr Chairman, it is difficult to say, they may take the morning session and perhaps ...

CHAIRPERSON: Can't you start on Thursday then?

MR ZILWA: That is why Mr Chairman, I am saying maybe if we take a short adjournment, I could see if I could try and arrange myself for tomorrow.

COMMITTEE ADJOURNS