DAY: 5

--------------------------------------------------------------------------CHAIRPERSON: Good morning everybody. The only matter on the roll today is the application of Messrs Msizi and Cishe and the only thing to be done in that application is the presentation of argument which we will listen to now and I'll then ask Mr Ntonga if he is ready to present his argument.

MR NTONGA IN ARGUMENT: Thank you Mr Chairman.

Mr Chairman, Members of the Committee, I will open my address by making the following submission namely that the application for amnesty in respect of the six vehicles is now academic because the applicants have already served the sentences, sentenced relating to those thefts. They were sentenced to two years for the three cars and the others to run concurrently and ...[intervention]

CHAIRPERSON: But I think on the evidence they didn't admit to stealing six cars, it was only three vehicles so that evidence would necessarily exclude the granting of amnesty in the three cars that they deny that they stole. You can't get amnesty for something which you deny you did.

MR NTONGA: I accept that, Mr Chairman, but my argument is to that effect that in respect of those three cars that they admit to having stolen, they are academic.

ADV BOSMAN: Mr Ntonga, I don't think it matters that much perhaps for your clients but it's not all that academic because it leaves them with a criminal record for those offences and amnesty would have had the effect of expunging their criminal record. I'm just pointing that out.

DR TSOTSI: What we envisage also, several cases arising out of the, also the cars.

MR NTONGA: I appreciate that, Members of the Committee, but Members of the Committee, from there I go on to submit that the most important incidents are the two attacks on the police. I preface my argument as follows:

It is common cause that the applicants with two other men attacked the police on two occasions, namely the 18/11/90 and 26/12/90. It is further common cause that the applicants with the two other parties went out to look specifically for policemen in the township, waylay them, attack them in the first instance and in the second instance murder them and also attack them.

CHAIRPERSON: I don't know if that will be common cause with regard to the one attack, but it's a subject to what argument, because the one attack, didn't the police get out of the vehicle and come to them? It was not an attack like the first attack where they ambushed a passing vehicle. Here there was more of a confrontation and an exchange of fire.

MR NTONGA: I agree Mr Chairman, that was the position in the second attack. My submission is that what the Committee has to consider in respect of these attacks is whether the attacks were committed with a political objective, whether the attacks were in furtherance of the aims and objectives of a political organisation. In this instance worship, sorry in this instance, Mr Chairman, I submit with due respect that the issues are clear. The attacks, both of them, were committed in the execution of a general order to attack policemen patrolling the township in the P.E. area and these orders came from the PAC and they were carried out by ...[indistinct] military wing, the APLA.

DR TSOTSI: Who issued the orders, you say they came from the PAC. Who in the PAC actually issued the orders?

MR NTONGA: Mr Chairman, it's actually, the orders were issued by the APLA structures but they were carrying out the PAC policy and as evidence had been led, the orders were issued after the training in the camp and it is and was at that stage the PAC policy to attack the structures that supported the government of the day, namely the police, soldiers etc. and the APLA structures and APLA operatives were only carrying out the instructions given to them by their leaders in pursuance of that objective, in pursuit of that policy.

ADV BOSMAN: The APLA structures is rather vague. Did we have anything more than just the APLA structures in evidence, I don't recall us having heard more than just the APLA structures gave the order?

MR NTONGA: The APLA structures I'm talking about, Members of the Committee, is the hierarchy in the APLA itself from the commanders down to the regional commanders down to the men, that is the foot soldier, the men in the unit, who was under a commander.

CHAIRPERSON: My understanding and correct me if I'm wrong, of the evidence was that the applicants were basically, one could call, foot soldiers and they didn't know where the orders came other than from they say, their direct commander, Jabu.

MR NTONGA: That is so, Mr Chairman and I submit that they themselves acted under a commander, as a unit commander, that is Jabu. They got the instruction from him and in carrying out these orders, the applicants with Jabu and Tekata, made the two, the first attack, the ambush and the confrontation in the second instance and it's my submission, with due respect Members of the Committee, that both attacks were carried out under leadership and orders of Jabu and were carried out under the auspices of the APLA which is a military wing of PAC and it is quite clear further from the evidence that the targets were already known, namely the police patrolling the streets in P.E. and the operations, that is the attacks, were effected against those targets.

It's my submission that on that basis it's quite clear that the attacks themselves, were attacks under a unit belonging to APLA carrying out certain tasks by that unit. It was not an attack, a random attack and further, what the Committee has to consider as far as the application is concerned is where do the applicants fit in this. My submission, with due respect, is that the applicants themselves were party of this unit and it's my submission, with due respect, that the applicants qualify as members ...[intervention]

CHAIRPERSON: Perhaps some water would help you, Mr Ntonga?

MR NTONGA: Submission that is made that the applicants were themselves members of this unit which carried out these attacks and alternatively they were supporters who associated with these APLA attacks on the police.

The other, as I've already submitted that all attacks, that is both attacks, were under a leader and it's my submission that the question whether at that time were they given specific orders or not, I would submit with due respect that after the general order specifying what's going to be done in P.E., what really was happening in P.E. now was a preparation of carrying out those orders when to go out and look for the policemen and how to arm themselves, it's my submission that at that stage everyone knew what was the task to be done. It was a question of planning from day to day.

MR LAX: Mr Ntonga, just one thing, before we move too far away from it. You've argued in the alternative here, is that actually open to your clients to argue in terms of our statute? Isn't it up to them to tell us what they are and they can't have it both way.

MR NTONGA: Mr Chairman, I'll argue that the applicants themselves are members of PAC, of APLA and are part of the unit and my argument is that whenever they carried out the operation, they were under a commander and on both occasions the commander was present. So as I say that it's not a question where they pay themselves, did their own thing in their own time. That's my argument.

MR LAX: So you've abandoning the alternative then?

MR NTONGA: ...[inaudible] and my further submission is with the fact that in both attacks the applicants and the unit never benefited financially or otherwise and further there is no doubt from the evidence why the missions were carried out against the police. They have been described, they were held then, rightly or wrongly, Mr Chairman, as the pillars of the government and the people to be removed and there's further no doubt that by doing so, there was a contribution towards the struggle, towards carrying out the aims and objectives of PAC, for no other thing else than that. Not as it's suggested that they involved themselves in these attacks because they wanted to make it easy for them to go on stealing cars or even to obtain guns in order to get some easy money. It's my firm submission that there are other ways that are less dangerous than to confront armed policemen in order to get arms or to make it easy for you to steal another car tomorrow.

Its my further submission, Your Worship, that the applicants have made a full disclosure and it's my further submission that their explanation meets the requirements of the Act and accordingly ask the Committee, with due respect, to find that, one, they acted as members of the PAC in the APLA structure, they carried out APLA instructions in furtherance of the PAC policies and objectives. They themselves never benefited financially or otherwise. They only made a contribution in this manner towards the greater struggle waged by PAC at the time and that policy to keep on pressurising the government by attacking these pillars, as already indicated, and I urge the Committee to find that the applicants are entitled to amnesty. They have met the requirements and require amnesty accordingly. Thank you.

MR LAX: Mr Ntonga, one thing before you finish. Which specific vehicles are they asking for amnesty for? You will recall I asked your client quite detailed questions to try and establish precisely which vehicles they were admitting or not admitting. The net result of that was there were only two vehicles that they were actually convicted for. Listen carefully, there were two vehicles that they were convicted for, that they admitted, they were not convicted for the theft of a Toyota?

MR NTONGA: My instructions, Mr Member of Committee, is that they admit three vehicles and this question of a Toyota, with the Toyota or Cortina, they insist that the car was a Toyota. I think that was the car that was burnt thereafter. That's as far as I can take the matter but they admit of three vehicles.

MR LAX: So in terms of the matters they were convicted for, there were six vehicles. Only two of those vehicles are admitted by them. You understand? Of the six individual vehicles, they're all identified, they are described in the judgement carefully by number plates etc. Do you follow? So of those they only admit two and in addition to that they say that one of those is wrong which is a matter we can't deal with, that's a matter for an appeal if there ever was to be one but in addition to that there is a Toyota vehicle they say they stole, that they want amnesty for. Do I understand it correctly?

MR NTONGA: I follow you, Member of Committee, and said those are my instructions also and I as I said that they're adamant that one of the three vehicles that they admit was a Toyota and I can't take the matter any further than that, those are my instructions.

CHAIRPERSON: Thank you Mr Ntonga.

CHAIRPERSON: Mr Griebenow, do you have submissions to make?

MR GRIEBENOW IN ARGUMENT: Thank you Chairperson and Honourable Members of the Committee.

My argument at this stage is restricted to two aspects. Firstly whether the applicants made full disclosure of all the relevant facts and secondly, whether the applicants could persuade the Commission, convince them that the for the committing of these crimes was political in nature.

I would like to start and react to the argument of Mr Ntonga who is acting on behalf of the applicants and say that the application for amnesty with regards to the charges of vehicle theft, that is purely academic. Maybe the applications are academic in nature but it is my respectful submission that the evidence which was presented with regards to the vehicle theft charges must still be considered by the Commission because it has direct relevance to the credibility of the applicants' evidence.

Firstly with regards to whether they've made a full disclosure of all the relevant facts, I'd like to say the following. It is so that the judgement of the High Supreme Court where the applicants were indeed found guilty that this forms part of the document in front of the Commission. It's my argument that in the light of the fact that both applicants who were found guilty on the restricted evidence of their statements which they made to a police officer and also a magistrate and that the evidence of the witness known as Elliot, that the judgement must be read together with Exhibits A and B which was handed in, they have to be considered when they judge this application.

Firstly, with regards to the applicants' evidence, both of them, the Commission had the privilege to observe both applicants' behaviour whilst they were giving evidence. It is so that both the applicants answered evasively to several questions. It is also so that both applicants, when they had the opportunity, amended the evidence. It is also so, Honourable Committee, that some of the questions which was put in cross-questioning was not answered by the applicants to such an extent that one of the Honourable Members of the Commission himself had to point it out to one of the applicants that he was not busy to help himself with this application because he was not answering the questions. It is also so that both applicants with regards to their answers, they acted sarcastically and they were arrogant even with Members of the Commission.

Further it is so that there were several contradictions in the evidence of the applicants. The contradictions dealt with, amongst others, the fact whether they received an instruction for these actions which was launched by them and if they did not receive an instruction, that's where the contradiction lies. Furthermore, both applicants also contradicted themselves when it came to the theft of the vehicles with regards to how many vehicles would have been stolen and also what the purpose was behind the theft of these vehicles. It was clearly put in both the applicants' application forms that they applied for amnesty with regards to the theft of six vehicles. It is so that applicant number one, Msizi, said that after the last attack on the police there was no further planned actions. Even so, one of the vehicles was stolen after this last attack on the police. It is my submission that one should look at probabilities and improbabilities.

Firstly, with regards to the training which the applicants allege they received, both applicants allege that they received instruction or training for six months but this is quite strange in the light of the fact that they both received this training together, that they lived with other people and received training with people for the time period of six months and they stayed with these people then for six months but even so they are not capable of giving us one single name of a person who lived with them at that time whilst they received their training and who slept with them in the tent during this training period.

It is also so that on questions which was put to them by a Member of the Commission, applicant number two admitted that he's never heard of the so-called code of conduct of APLA. It is also so that the same applicant also acknowledged that he has never received a war name or a battle name. It is my submission that this version with regards to the training which they would have received is very improbable. If one looks at Exhibit B it is evident from Exhibit B that these two applicants never went to Sterkspruit for any training. It is also evident from this Exhibit that the vehicles which were stolen by the applicants was exclusively stolen for personal gain. In Exhibit B, several times it is mentioned in Exhibit B that as soon as a vehicle was stolen the vehicle was then searched. It is also said in this statement that the vehicle or that one of the vehicles was sold and that some of the other vehicles was taken apart in order to sell them.

Furthermore ...[intervention]

CHAIRPERSON: Please be quiet, this is a hearing and we must hear what is being submitted.

MR GRIEBENOW: Furthermore it is said that with reference to the two persons who lived at the scrap yard in Vuku Street that they were cadres, that they have been across the borders and that they have returned, that they were soldiers and there is always reference to those two persons and it is my submission that it is clear from this that those two persons were indeed members of APLA.

Furthermore, according to Exhibit B, it was that these two applicants who were with these two APLA members during these attacks on the police and from Exhibit B it's clear that the only reason why they made friends with the APLA members in Vuku Street was to obtain firearms and to be provided by firearms by those two gentlemen. And it is also strange that the two applicants according to their versions who were in a unit or a cell with these two APLA members from Vuku Street that they did not live with these two members there and they did not keep their weapons with them but the weapons were left at Vuku Street and the weapons were just handed to them during this attack. A further aspect that has to be considered is the evidence of the applicants with regard to the second attack on the police. According to their evidence given before the Committee they observed two police vehicles, they drove past these vehicles and shot at these vehicles. This differs from their application forms for amnesty. According to the application forms, they would have been stopped by the police and the police came to their vehicle and they acted in self defence whereby they would make it known that police shot at them first and they fired back.

Mr Chairman and Honourable Members of the Committee, when one has regard to Exhibit A that was handed in to this Committee, it is evident that the version of Mr Msizi, applicant number one is given with regards to the second attack and this differs from his evidence before this Committee or his part therein and it is my respectful submission that these two applicants were not members of APLA as they would have it known and these applications of theirs was brought in, in the hope that they would receive amnesty and that their last application form was coloured in such a manner and coloured their evidence in such a manner as if to seem like members of APLA and in support of this it could be mentioned that besides the names of the two persons who were killed in Vuku Street, no other names was disclosed by the applicants of persons who would have been members of APLA with whom they were in contact or who would have been in the controlling or commanding structures at the stage when these incidents took place and it is my submission, with all respect, that these two applicants did not make full disclosure to the Committee and in the light thereof amnesty should be refused and it is my further submission that both the applicants tried to mislead the Honourable Committee with regards to the motive. Firstly why the vehicles were stolen and secondly the motive and I refer specifically to the two applicants before this Committee. I do not refer to the motive of the APLA soldiers who lived in Vuku Street. That this motive that they try and put before this Committee is not true. It is my respectful submission that the two applicants had a criminal motive in the execution of these deeds and I consequently request the Committee when considering all the relevant factors to find that firstly the applicants did not make full disclosure of all relevant facts and secondly that the misdeeds of these two applicants was not done with any political motive. Thank you Mr Chairman.

MR LAX: Mr Griebenow, if you could just address one thing for me? The issue that concerns me in relation to your argument is if these applicants were acting in concert with these two APLA members and you concede that the two deceased members of that unit, or if it was a unit at all, but at least you've conceded that the two people that died were APLA members, if these two applicants were acting in concert with them or in some way under their control and they were in furtherance of an APLA objective or a PAC objective, should that not be imputed to them?

MR GRIEBENOW: Mr Chairman, it is my submission that the two applicants were indeed part of the attack, the attack on the police, but it is my submission, based on the probabilities and on the contradictions of the two applicants, it cannot be said that they were indeed members of APLA or members of the PAC when these acts were committed.

CHAIRPERSON: No, the Act doesn't confine itself to members of an organisation but also refers to supporters, in other words, persons who need not be members but who support a liberation movement for instance, they're also covered by the Act.

MR GRIEBENOW: Mr Chairman, I realise that but my argument is that the motive of these two applicants was clearly not in furtherance of the objectives of APLA or the PAC, that is not why they participated in these acts. I wish to refer to Exhibit B, page 9, the last sentence in page 9 where it starts, or rather lets make it nine lines from the bottom:

Mr Chairman, my point is that there is no indication at all that their motive was either to further the objectives of APLA or PAC and that is why they participated. On their side there has to be an objective that has to be political in nature as to why they volunteered to participate and it is my submission based on the probabilities and based on the documents placed before the Committee, there was never on the part of the two applicants, there was never a political objective.

MR LAX: Mr Griebenow, if you could just address us on this other aspect because it relates directly to the underlying basis of your argument and that is what weight do you say we should be attaching to these exhibits and these documents like the judgement and so on, which do not form part of the evidence before us and how must we deal with it?

CHAIRPERSON: He was saying that it was clear from the evidence of the applicants that they, what was contained in these documents wasn't their own thoughts and statements.

MR GRIEBENOW: Thank you Mr Chairman. Mr Chairman, it is my submission that in the first instance regarding judgement, the judgement from the Supreme Court, the Chairperson in the matter was Judge Janssen and the only testimony which the two applicants were found guilty on was based on Exhibit A and B and the witness who is referred to as Elliot. Applicant number one, Mr Msizi, answered to cross-examination from my learned friend Mr van der Merwe, admitted that factually he was found guilty correctly and applicant number two, Mr Cishe, also conceded to Mr van der Merwe that he was found guilty correctly in cross-examination and the Supreme Court's judgement was based on Exhibits A and B which was placed before this Committee. Mr Cishe, applicant number two, version regarding Exhibit B is that he never made any written submission to Magistrate Pienaar once again based on probability. It is my respectful submission that once again we do not get a full disclosure from Mr Cishe and that this version of his is totally improbable, so much so that it is false and it is my submission that Exhibits A and B and specifically the judgement of the Supreme Court that this has to be judged by the Committee in the light of the evidence of the applicants, but in the light of the evidence of the applicants with regard to the finding of the Supreme Court and the exhibits and in the light of the improbabilities and contradictions regarding to their application for amnesty, with regard to the theft of the vehicles, that this has to be weighed against the judgement and the two exhibits before you and it has to be judged according to these and it is my respectful submission concerning my earlier argument according to the credibility of the two applicants that the Commission has to find, with all respect, that the judgement as well as Exhibits A and B indeed weighs more heavier than the evidence that they gave before this Committee and that the evidence has to be judged in the light thereof. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Griebenow.

Mr van der Merwe do you have submissions to make?

MR VAN DER MERWE IN ARGUMENT: Thank you Mr Chairman. I think my learned colleague, Mr Griebenow, has dealt to a large extent with a lot of the points that I would have been dealing with. I will however try and just elicit some of the other points which I feel is of importance to the Commission.

I will start immediately with dealing with the judgement of his Honourable Justice Janssen as well as the Exhibits A and B which was handed in and with respect, agree with my learned colleague Mr Griebenow that the judgement is before this Committee as a judgement of the Supreme Court. This judgement was based on fact which was presented to this Supreme Court and when we read and study this judgement it becomes quite evident how this judgement has to be compared to the evidence of both the applicants that were given before this Commission. It is quite evident that both the applicants are adapting the evidence. They are taking new lines where they have been shown up previously in their criminal trial. For instance, I would like to refer the Honourable Committee to the fact that applicant number two in the criminal trial denied that he had his signature on the bottom of Exhibit B. After he signed certain documentation from his legal advisor during the trial and it was shown to him that his signature on those documentation corresponded with the signature on Exhibit B he has now come with a new defence in front of this Committee to say that he never made the statement. But it is quite evident that they are continuously adapting their versions in order to enable them to deny the truth that they supplied the police with when they were investigating this matter. It is also true that if we look at Exhibit B for instance the second applicant was not shy to say that the police was a target, that they wanted to attack the police. Yet, nowhere in this whole exhibit does he refer to any political motive. He goes so far as to say they were coerced to act with the two deceased persons who stayed at Vuku Road scrap yard.

MR LAX: Mr van der Merwe, is that particularly surprising in the light of the prevailing political climate of that time where, if they had openly admitted their political involvement in the trial, there would have been putting themselves in serious jeopardy, much greater jeopardy than just if they were just plain criminals.

MR VAN DER MERWE: Yes but, I will accept that, Committee Member Lax, it has to be understood that way, however what is surprising is that he did not fear to say they had express instructions to attack the police but he did not take it any further. If we have to take it any further, he did not indicate that he was trained. In this Exhibit B he indicates how they were trained at Vuku Road scrap yard, a haphazard training method there of instruction by indication and not a six months training which I accept they will hide from the authorities but he says he was trained in Vuku Road scrap yard how to handle firearms which does not make sense, then he would have rather kept quiet about his training at all.

It is therefore my submission that the judgement of his Honourable Justice Janssen as well as Exhibit A and B has to be looked at by this Committee in the context and as a whole with all the evidence that was presented before this Committee and that the Committee should then on the balance of probabilities decide whether they are making a full disclosure here. That brings me to my instructions in this regard and my submissions to this Committee.

I will submit to the Committee that as Mr Griebenow has indicated that both the applicants have not made a full and frank disclosure in this application and secondly, with greatest of respect, we seriously doubt whether they had a political motive at all at the time when they acted as they did. It is quite evident from the history of both applicants before this Committee that they are criminals, they were convicted of motor vehicle theft before they started acting as they would like the Committee to believe, political. And when we refer to page 9 of Exhibit B, Mr Cishe, applicant number two's application, it is quite clear that should the Committee find that the two deceased APLA cadres were acting with a political motive, it does not flow automatically from both the applicants before the Committee indeed acted with a political motive at all.

The evidence of Elliot which was accepted by the Supreme Court and which I will deal with further at a later stage, indicated that these vehicles were used, the stolen vehicles were chopped up and sold and the proceeds were used by various people and shared. It was a profit making business. It was therefore clear that the police would be enemy number one for both the applicants. Not because, as their applications would say, they were representing the pillars of apartheid in the previous regime, but simply because the police was a thorn in their flesh for the way they chose to make a living, which is by motor vehicle theft. It is however now later at this stage when the new government in South Africa has made it possible for people to come forward and obtain amnesty, become a very useful vehicle to politicise criminal activity and to try and sell as political activity in the conflicts of the past.

It is blatantly clear that no evidence was presented by both the applicants at any stage why any of the other cars were stolen. As a matter of fact applicant number two alleged that he was not applying for six cars any more at a late stage when at the start of these proceedings, the Committee was informed that both the applicants were applying for the six cars they were convicted of stealing in the Supreme Court. It's also a clear indication how applicant number two changed his instructions even to his legal advisor in that regard.

ADV BOSMAN: Well Mr van der Merwe, can you perhaps assist me here? I recall that there was evidence that various cars had been stolen and abandoned in the course of them looking for the police?

MR VAN DER MERWE: That is correct, Honourable Committee Member, it is however also strange that no other operation was described to this Committee and what happened to these cars, where they were abandoned. There's a big void there as to what actually happened to these cars and what precise operations were planned as both the applicants went to great length to describe how the previous missions were planned. My submission in that regard would be that there were no operations planned and that the cars were merely stolen. It also does not explain why another vehicle was stolen as my learned colleague also argued after the second operation, when no further operations were planned.

When applicant two gave evidence regarding the identification of the people in the first attack, he tried to convince the Committee that he could see exactly who was driving this police vehicle and went further to describe the hats which, as we indicated, is disputed and the video evidence is available should the Committee feel that they need to burden themselves there with, but I will take it further. He went further to say in his application - if I can just find the page - I think it is, well it would be applicant number one who indicated that it was only afterwards that they discovered that it wasn't three policemen in the police van and I refer there to page number 2 of the bundle of documents which is the application of Kwanele Msizi, paragraph 9(a)(iv):

It is quite evident that there were never three policemen in this van. The evidence before this Committee and the picture that both the applicants tried to paint was that they were always aware that this person was not a policeman, which is also blatantly untrue.

I then turn to the fact that both or applicant number two tried to impress on the Committee that the last vehicle or the first vehicle which was used in the murder on the two policemen and Mr Gotyana was burnt and I see that in the application that he filled in for applicant number one, applicant one's application also reads on page number 9 of the bundle of documents that one car was burnt. However, if we look at the objective facts and we study the judgement of Judge Janssen and we read the summary of the evidence of one Elliot, it is clear that Elliot went afterwards and pointed out the number plates of this vehicle that was supposedly used in the first attack and it was not burnt. The number plates were found in a bush which belonged to the vehicle that was stolen before this operation. It is also true that applicant number one at no stage gave evidence that this vehicle was burnt and it is true that he might not have been asked about it, but he used the specific language that "we abandoned the vehicle" and it is quite evident that abandoning a vehicle does not mean setting it alight and burning it.

I will then shortly turn to the demeanour of both the applicants before this Committee. In this regard I need not repeat what they said, I will refer to the comments of the first applicant regarding white people and settlers, which to me indicated a deep seated hatred which I will take further and suggest to this Committee, with the greatest of respect, that this might in all sense also be a possible motive for any of these killings and attacks on the police and I will go further, which I will deal with later, to say to the Committee that my submission to the Committee will be that pure racial hatred would fall foul of the provisions in Section 23(ii) of this Act which states clearly that a political objective does not include any act committed by any person out of personal malice, ill will or spite and directed against the victim of the acts committed.

I will then deal with the applications of both the applicants before this Honourable Committee and with the greatest of respect, it is my submission that there were never any orders to act under. If there were orders and as applicant number two says, all he was trained to do was to obey orders, he would have said so in his first application. It is quite evident from his first application that he fully comprehended the questions in the application and that he dealt with them specifically. Where his answer indicated that he acted out of his own initiative as an APLA cadre and that he was never given any orders or words to that effect. There is simply no room for any explanation that that was a mistake, Mr Chairman, if it was a mistake then the first application that was filed to the Amnesty Committee was a blatant lie and then I would submit that nothing further that these applicants bring before this Commission can be relied upon.

It is further possible that if this deceased person in the front of this police van was a police informer that this person might have been informing the police as to the motor vehicle thefts and that might also have been a motive for this attack in that it was possible that the activities of people who were stealing motor vehicles in the townships and everywhere else might have led to their arrest.

I will concur with my learned colleague that both the applicants were evasive in the answers they supplied to this Commission, they were sarcastic and bordering on arrogance at stages. This, Mr Chairman, is not the behaviour and the demeanour expected of persons who has come to this Committee to tell the truth and apply for amnesty.

My learned colleague has already dealt with the fact that both applicants have indicated that they were correctly convicted in this matter and on the little evidence available to the State which was accepted by Justice Janssen, my submission to the Committee once again is that it is quite evident that the Exhibits A and B and the judgement of Justice Janssen should be accepted as evidence in this hearing in it's totality. It is also clear from the judgement of Justice Janssen that although Elliot was a Section 204 witness during the criminal trial, he gave a thorough account of his own involvement in these crimes and that, amongst others, what he also indicated to the court at that stage was that the vehicle that was used, the only vehicle that was stolen before the attack where the two policemen and Mr Gotyana was killed, was stripped afterwards and dissembled. That was the evidence of Elliot. The fact that the number plate was also found afterwards is further proof of that and I refer the Committee here to pages 54, 55 and 56 of the proceedings which is a part

of the judgement of Justice Janssen.

Both the applicants before this Commission have indicated that Elliot, that they do not know Elliot and that they deny everything that he says. It is interesting to note that Justice Janssen refers to this regard as well in the fact that Elliot had extensive knowledge of the girlfriends of both the applicants, their family members, where they lived and their whole circumstances. When we turn to Exhibits A and B which is ...[intervention]

DR TSOTSI: Sorry, I'm struggling with it - are we bound by the evidence led in the criminal case before the High Court?

MR VAN DER MERWE: Honourable Committee Member, I would not say we are bound by it. My submission to this Committee is merely that this is evidence before this Committee which has to be considered as a whole with all the other evidence that's been presented here so I'm not saying we are bound and the Committee should regard itself as bound by this in the sense of judgements by a superior court for other courts, no.

It is quite evident and my submission to this Committee is that in these instances the South African Police stood between both the applicants and their criminal conduct and in such became a target for them and that is what led to these attacks on the police because should the police be willing or less willing to do investigations and patrols in the township, that would mean that whoever runs motor vehicle theft syndicates would have much freer reign and more space and area to operate in.

I concur with my learned colleague, Mr Griebenow, regarding the training of the two applicants before this Committee and I think there is no room to argue that they received training. I think everything else as stated by Mr Griebenow point to the fact that they did not receive training and in this regard I'd even refer again to Exhibit B where in his confession applicant number two describes how he was trained in the Vuku scrap yard. Now that would not have been necessary had he received training, it would not have been necessary to make that up, he could merely have said he had a gun and he could shoot with it.

Another strange factor which indicates to me and my submission to the Committee would be that they weren't trained is the fact that Mr Cishe was asked about the ranks of the unit. He could not describe any rank. Now that is totally unacceptable in a military structure. Everybody must know who everybody else's rank is if you are to follow orders, as he says he was told. His only instruction was to follow orders. You cannot follow orders unless you know who is allowed to give you orders.

If the Committee will just bear with me? Another matter of concern indicates how careful this Committee should treat the evidence of both the applicants and in this case specifically applicant number two is the whole story of how he was recruited from Njoli Square. I think the Committee will remember that. Which was totally, with the greatest of respect, seems like a flight of fantasy and my submission to this Committee is that the applicants are not making full disclosure because they have to get a political motive, their training has to be brought in to help them to be able to say they act on behalf of APLA.

The exhibit - it was an additional affidavit which I'm holding up for the Committee to see, it is certain paragraphs I'd just like to point the Committee to, page 18(b) which I indicated I would leave for address to the Committee where both the applicants say the instructions, that's paragraph 3.3 there:

It is quite evident and my submission to the Committee will be that either Jabu Mdunge must have told them who the instructions came from or they must have known, otherwise they couldn't have instructed their attorney to write this sentence in the way it has been written there. It is also quite clear that they were not willing to disclose any names in front of this Commission.

On page 18 (c) paragraph 4.6, both of them, applicant number two confirmed applicant number one's affidavit, have indicated the vehicle in the first attack where the policemen were killed, was thereafter ditched at a place where it could be recovered. Quite evidently that is contradictory to the fact that they are trying to tell this Committee, specifically applicant number two, that the vehicle was burnt. It says there that the vehicle was ditched at a place where it could be recovered. If it was burnt he would have said so.

Then on page 18(d). In other instances, various instances, I put the exclamation on the 's', a vehicle would be stolen but targets could not be found. It seems vehicles were stolen and thereafter targets might have been looked for, according to that. It also seems to suggest that more vehicles were stolen as both the applicants would try to confirm in front of this Commission. I would, however, have to concede that could refer to two other vehicles at least.

In general, Mr Chairman, I think I have dealt with this, that both the applicants' attitude as witnesses before this Commission, must have given the Commission some indication as to what were driving them during the time when they operated as they did. My submission to this Committee, with the greatest of respect, would be that neither of them made a full and frank disclosure of all the relevant facts and that would be evident from what I have dealt with up to this stage as well as the facts which my learned colleague, Mr Griebenow, has dealt with. They have, however, seen an opportunity here to apply for amnesty and take a chance to be afforded amnesty. I would suggest that their motive as far as the political crimes is concerned was not to unseat the government as they would like this Committee to know but their motive was to protect the operation of stealing cars, chopping them up and selling them and that that might have been also, a secondary motive might have been a deep seated racial hatred for white people which made policemen and the system, according to them, a legitimate target. I would submit to this Committee that when we have a look at the judgement of Judge Janssen that the operations as far as the motor vehicle thefts is concerned was for personal gain, these vehicles were chopped up, pieces of these vehicles were found and that they acted in this matter merely coincidentally, coincidental with Mdunge and the other cadre. I would, however, submit to the Committee that I do not dispute the possibility that both the applicants might have been members of APLA, it is possible. That does not, however, lead to the automatic conclusion that they were acting with a political motive when they were involved in the criminal activities of stealing motor vehicles. Maybe I should correct myself, I would say I would admit that it is possible that they were members of the PAC, not necessarily APLA. I, however, have no instructions as far as that's concerned. No evidence was led here either to confirm or deny that except the evidence of the applicants.

My learned colleague has already dealt with Mr Ntonga's contention that the application for the theft of the six vehicles in academic. I would submit to this Committee that it is highly relevant and has a direct bearing on the creditworthiness and the credibility of both the applicants and the evidence they have given before this Commission and if the Committee had to accept that both the applicants acted on orders and that it was so straightforward, it is then totally inexplicable why both the applicants in their first application forms would say they were acting without any orders and on own initiative.

I would have to agree with my learned colleague, Mr Ntonga, when he says that the applicants did not directly benefit financially from the attacks on the police. However, if we look at the bigger scheme of things, my submission to the Committee would be that they were benefiting in their total activity regarding the motor vehicle thefts and that these attacks on the police was a mere reaction to protect this whole operation they were busy with.

In short, Mr Chairman, that would be my submission and I have been asked by the instructing clients of mine to indicate to this Committee that although they are opposing the applications for both these applicants, they will abide by the decision of this Committee. Thank you Mr Chairman.

CHAIRPERSON: Thank you Mr van der Merwe.

Ms Patel, do you have any submissions to make?

MS PATEL: No thank you Honourable Chairperson.

CHAIRPERSON: Mr Ntonga, do you have any reply to make to the submissions made by Mr Griebenow and Mr van der Merwe?

MR NTONGA IN FURTHER ARGUMENT: Thank you Mr Chairman.

Members of the Committee, I would like to correct some few things from my learned friend, the first man, Mr Griebenow. In his address, he states that when he attacks the question whether the applicants were trained, he says that they could not disclose a single name. I want to correct that, a name was given, Ngoba, and under cross-examination also another name was asked of Sebelo Pama, who was the highest ranking APLA man. I think he was asked who were the members and the man said he knows him by this name but he doesn't know where he stays.

CHAIRPERSON: Yes I can recall that.

MR NTONGA: In other words ...[intervention]

MR LAX: Sorry, Mr Ntonga, just one second. He mentioned the name of Sebelo Pama but he didn't say he ever met him.

MR NTONGA: Yes I agree.

MR LAX: But frankly, he's such a well known character anyway, that doesn't take that very much further.

MR NTONGA: But I concede, Mr Member of the Committee, but I say that a name was given of Ngoba in the camp.

MR LAX: He was the camp commander as I understood?

MR NTONGA: We know that he didn't know any person in the training and further I also would like to correct my learned friend when he said that, that is Mr van der Merwe, no rank was given about the people who were involved. Some rank was given of a unit commander and a deputy commander, that is within the unit and further on I want to correct that the question of training was involved in order to make the application be heard by the Committee. I never heard it pointed out by the judge you need not be a member, even a supporter or even associate yourself with the actions, so you qualify.

And coming to the application itself, with the highest respect to the admissions made against the application, at no stage is it in doubt that the operation themselves were politically motivated, they were for a political reason and as I understand the objection or the attack, is that it is doubted whether the applicants participated in those operations which are accepted with the same motive as the two cadres. It's my submission reply that there is no doubt that they identified themselves with this application, actually they were - it's no question of coincidence because a car had to be stolen first to prepare for the operation and they were involved in the stealing of the car which means that they participated fully in the operation and further they were told, even before the question that the operation they were to go out and to seek and to destroy the soldiers in the location or sorry, the policemen in the location. So they knew everything, they were involved in the planning, they carried out the operation. It's my submission that it can never be said that there were any other motives except the motives specifically stated by the applicants and they themselves full participated. It's not a question of coincidence.

As far as the question of the informer, I want to submit with due respect that the informer was at the wrong place at the wrong time. That's all that happened to him. The applicants only attacked the SAP vehicle not knowing that one of the people inside was not a policeman and unfortunately, this black man was fatally wounded in that skirmish. That's all, thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Ntonga.

We'll reserve our decision in this matter and will make it as soon as possible. That then brings an end to our sitting here in Port Elizabeth. Before you go, I'd just like to thank the authorities for making this very nice hall available to us. I'd like to thank the interpreters who have worked so hard all week, it's a very difficult job that they do, they interpret simultaneously with all the talking that goes on. Thank you very much, you did a very good job.

I'd like to thank the people who did the catering for us, for supplying us with the very nice teas and lunches that we had, thank you very much indeed and to the security that was provided here, they had work done for bomb scares etc and I'd like to thank the media people present and in fact everybody who assisted in the holding of these hearings that we have held here, we appreciate everything that was done. Thank you very much indeed. We will now adjourn.