ADV PRIOR: Today is the 24th of March 1999. Mr Chairman, originally there were two matters scheduled for argument, one was the Unitra Robbery, where the applicant was Mr Maseko and the other one is the Yellowwoods Hotel Attack. It's clear that at the last hearing in April, the Committee had indicated that it wished to, before it gave judgment in the Unitra matter, it would either hear evidence or gain further information on the other 28 outstanding matters regarding Mr Maseko. These matters still have not been scheduled for any hearing, Mr Chairman.

There was one matter, the Lebanon AK Store in Westonaria, where Mr Maseko appeared before another Committee in November of last year, and he was granted amnesty in that matter for the killing of one, Mr de Sousa and the attempted murder of the other shop assistant, and robbery. He was granted amnesty by a panel consisting of Ms Khampepe, Mr Malan and Ms Bosman. Thank you. Mr Chairman, it seems that this matter cannot be disposed of today.

CHAIRPERSON: I have a note dated the, made after the hearing of the 31st of March 1998, saying this applicant has applied for amnesty for 28 incidents. The Unitra incident was heard and completed. The attorney for the applicant, Mr Ntonga, is to consult with the applicant this week to obtain further information and details. The remaining 27 incidents can then be investigated fully by our Investigation Unit, thereafter decisions can be made re setting down the new hearings and which matters should be heard in chambers. It was decided that no argument be heard until the hearings had been finalised before the same Committee. It would appear that nothing has been done in that connection, there hasn't been a full investigation by our Unit, as far as I know.

ADV PRIOR: Mr Chairman, I spoke to Advocate Coetzee this morning from Cape Town. He indicated that those matters were still pending. I understand from Mr Mbandazayo that affidavits have been supplied from Mr Maseko. I understand that the Evidence Analyst, Ms Ntanga, has been working on the matter. I am unable to tell the Committee what the status of the investigation is at this stage. What I can report is that the matters are pending, they haven't yet been scheduled before any particular Committee.

CHAIRPERSON: Well it was resolved here that we couldn't come to a decision, we wouldn't hear argument until the hearings had been finalised.

ADV PRIOR: If the Chairman will look at the note, or the report that I filed in October of last year, it was conveyed to the persons, for example, Advocate Coetzee's office, that the Unitra matter was one that the Committee required further investigation into the other incidents. It was brought to his attention that further investigation was required. Unfortunately I am unable to tell this Committee what the status of that investigation is.

CHAIRPERSON: I have seen an affidavit by the applicant, dealing with the Eastern Cape matters.

ADV PRIOR: I also understand that he has made other affidavits explaining the Gauteng matters, and those affidavits have been forwarded to our office in Cape Town. I understand there's been quite a comprehensive communication between Mr Mbandazayo and our Evidence Analyst, Mr Ntanga, in this regard. May the ...(indistinct) verify that.

MR MBANDAZAYO: Thank you, Chairperson. It is correct that I'm representing Mr Maseko in connection with all the Gauteng incidents in which he was involved. All the affidavits regarding those incidents were submitted. We made arrangements, it was in June last year. He came down to St Albans Prison where I consulted with him for more than a week for all those incidents and after that the affidavits, though unsigned, are all in the office, in the TRC office. All were faxed. I still have copies on my computer in the office, for all the affidavits, but they are in the office, including the one he was granted amnesty for, it was there with them. They were sent together, Chairperson. Thank you.

CHAIRPERSON: Well I'd like to hear you on this subject. It seems to me, and I think it seemed to all the Committee from the beginning, that the matters should be heard as one. As I understand it, I haven't seen the papers in the others, but his attitude has been that he was in charge of the Repossession Unit and that he conducted numerous operations on behalf of that unit. Once one has come to a firm conclusion on that, then we can decide all the matters at once. It would be very much quicker, very much more in the applicant's interest that they be heard as one rather than one Committee here, one Committee there and you've got to get transcripts and everything else. So do you agree that the matter should be set down afresh, all the matters set down?

MR MBANDAZAYO: Yes. Chairperson, I agree with you fully, that one Committee should handle all these matters, especially as you indicated that he was the head of that unit.

CHAIRPERSON: Mr Prior, what are your feelings?

ADV PRIOR: Well I share those sentiments, it's just that experience has shown that this Committee, it's taken virtually a year to get this Committee back together as constituted when it was hearing the matters, and that is the practical problem.

Certainly Mr Chairman, it's advisable to do all the matters together. And as you have correctly pointed out, if a decision is taken like it would appear, by another Committee in an incident up in Gauteng where the Amnesty Committee was satisfied that Mr Maseko acted within the provisions of the Act, Section 20 and granted him amnesty, it would seem to my mind that the other matters would obviously, if the corroborative evidence also indicated that would a matter of simply hearing the applicant on those matters and granting or handing down a decision without having a full-blown hearing. I'm ...(intervention)

CHAIRPERSON: Well, Mr Prior, as you know perfectly well, the Act does not allow us to hand down decisions in matters where policemen have been killed, as they were in several of those other incidents, without having a hearing.

ADV PRIOR: Yes. Mr Chairman, maybe just to mention, my understanding is also that in a lot of these matters there's just no trail, there's just, there's been difficulty in obtaining dockets, there's been difficulty in obtaining - but that, if you wish me to go into it, I can furnish this Committee with a detailed report on the status of the investigation and possibly that's something that should happen very quickly.

CHAIRPERSON: Have they considered the affidavits, because it appears the applicant is prepared to cooperate to the full in telling them when and where. I find it very hard to believe that if a policeman was killed in the course of an armed robbery, there would not be records available. This is not a body found lying in the veld somewhere, this is a matter that there would have been interest in. You said that it had taken so long to get this Committee together again, well we're going to have to come together again to hear the, even if we decide we're only going to proceed with the University of the Transkei matter, we would certainly want to see the applications, the affidavits, the evidence led in other matters. So you will have to reconstitute this Committee. It seems to me that when that is done, set it down for a couple of days and set all the matters down.

Because as I understand it, and I speak subject to correction, what will be at issue will not be so much the details of what happened, as the motive behind what happened, and the result.

ADV PRIOR: Mr Chairman, ...

CHAIRPERSON: It's always possible that five hundred thousand was more tempting than three hundred.

ADV PRIOR: Mr Chairman, I will then undertake to investigate and see that this Committee gets a report, hopefully by the end of this week, or possibly next week, as to the status of those other matters and that this Committee can then have a clearer idea of how to approach the matter from there on.

It would seem that if no investigation had been done at all in any of those matters, it's going to take some months to follow that up, with the present logistical position of the Committee.

CHAIRPERSON: Well I think it could be shorted, as I said, if the Investigators get in touch with the applicant's attorneys who would perhaps give them, do their work for them and tell them where to go and look for the information.

ADV PRIOR: Will the matter then stand adjourned for a date to be arranged?

CHAIRPERSON: Yes.

ADV PRIOR: Thank you.

CHAIRPERSON: One other matter which we might ask for comment on at this stage is as to where the applicants thinks it would be most convenient to set the matter down again. Or perhaps you can notify, you don't have to do it now. You could apply your minds to it and discuss it with Mr Prior.

The matter is now adjourned to a date to be arranged.

ADV PRIOR: The next matter on the role is the Yellowwoods Hotel Attack matter. It's the amnesty application of Mr Madasi, Mr Diahamonaeng and Mr Ntintili.

Mr Mbandazayo appears for the applicants, and P C Prior, Evidence Leader for the Amnesty Committee.

May I be permitted to proceed? The only outstanding aspect in this matter regarding the evidence, was the request by the Committee at the last hearing of some ballistic evidence regarding the damage to the buildings of the Yellowwoods Hotel. I managed to secure, which I've circulated, an affidavit of Victor Jacobus van der Merwe who was the ballistic expert who attended the scene, and particularly in paragraph 4 of his affidavit he described the damage to the various buildings, damage to the bar area and the entrance, as well in (4).4 there was damage, bullet holes in the wall and the door - sorry, the wall and window of the building next to the bar, which served as a storeroom.

Now - and then he goes on to have examined the various cartridges that were found. That appears in paragraphs 5, 6 and 7. It would seem from discussing the matter with Mr Mbandazayo, that he had no difficulty with the handing in of the affidavit, and then thereby avoiding calling Mr van der Merwe. I don't know what the Committee's attitude is.

CHAIRPERSON: Well we suggested that yesterday, that it might not be necessary. This was merely to get the information on record. It was raised at the previous hearing, and we had these photographs which were handed in as exhibits, which marks all over them. This now ties up.

ADV PRIOR: Yes.

CHAIRPERSON: I would like to say though at the same time, that we are extremely thankful to Captain Els and to Captain van der Merwe for their assistance. They have been extremely helpful, they've got us this information quickly and it has been consistent with the assistance we have had from the police through all these hearings here, and we are extremely grateful for that assistance.

ADV PRIOR: Thank you, Mr Chairman, we're indebted for that.

CHAIRPERSON: So this can be handed in as an exhibit?

ADV PRIOR: I think it's Exhibit E.

CHAIRPERSON: Yes, that complies with mine, Exhibit E.

Right.

MR MBANDAZAYO IN ARGUMENT: Thank you, Chairperson and Members of the Committee.

I will start in this matter by saying that I believe that this matter is in all fours with the Heidelberg Tavern incident, especially with regard to the shooting and the damage to the buildings. ...(intervention)

CHAIRPERSON: And you have the advantage that the two members of the Committee that sat there are now sitting here.

MR MBANDAZAYO: Yes, Chairperson, I was going to say that, especially the two members of the Committee who were sitting in that hearing of Heidelberg Tavern, and also the advantage that the Evidence Leader was also in that hearing, was also leading evidence in that hearing.

CHAIRPERSON: Well the finding there was wasn't it, that that was an attack carried out on behalf of APLA, on the command of their senior officers, that they merely obeyed orders? Mr Prior, you accept that conclusion, don't you?

ADV PRIOR: Yes, that was the evidence.

CHAIRPERSON: Yes.

ADV PRIOR: That was supported by the surrounding facts.

MR MBANDAZAYO: Thank you, Chairperson.

I was still saying, especially with regard to the shooting outside, where there was of course a dispute as to what happened to the other buildings, whether they attempted to shoot to other buildings surrounding the Heidelberg Tavern, which is also the case here where you find that with the exception of shooting in the bar there are also attempts to shoot to other buildings, which of course is also in dispute, when the applicant gave evidence, especially Madasi who was the first applicant.

May I also hasten to say that Madasi was also involved in the Heidelberg Tavern incident. So it was in both incidents he was involved. And also that - Chairperson, before I argue that, the only new member, the other person who was involved in the other incidents was Mr Ntintili, in that the weapons which were used in the Golf Club were left with him and he was given an order by Xhomiso Nonxuba who was a regional commander, the late Xhomiso Nonxuba, to transport them now to Fort Beaufort. And these weapons were used in the Yellowwoods attack. So that is the involvement of Ntintili, because he has to transport the arms which were used in Golf Club to Yellowwoods.

And the new member, the other person who was appearing for the first time was Diahamonaeng who was represented by Mr Mthembu in the hearing. And also that Diahamonaeng is involved in various other matters in the borders and also in Gauteng in Randfontein which hearing has already passed and he was involved with Thimangasekile Bani. Unfortunately he received notice after the date of the hearing and Bani was granted amnesty in that incident in which the two of them were involved.

Chairperson, if we go through the evidence which was led, it was clear that on the first attempt there were quite a number of them - they had also Diesel Siyone, where after taking a car, highjacking a car and they were chased by the police, they could not pull the mission, they had to abandon the mission and they have to run away from Alice and they went to Mdantsane and they have to contact Xhomiso Nonxuba and advise him of what happened and they were given new instructions. On the second attempt they were also not successful because when they arrived, if my memory serves me well, it was closed. It's then on the third attempt that they succeeded, and they were there of them.

CHAIRPERSON: And the evidence was, wasn't it, that the first attempt was over the weekend, on a Friday I think, and the second, when the hotel was closed, was a Friday and the final attack was on a Saturday, because their instructions had been that they must conduct the attack over a weekend when members of the Defence Force were most likely to be there.

MR MBANDAZAYO: Yes, Chairperson, exactly like. That was the instruction and that was the evidence, that they should not conduct on another day except the weekend, Friday or Saturday which the likelihood was that the members would be there. Because on the other days it would be only other innocent civilians - if I may interpret it that way.

Chairperson, it is clear that the attack was carried out by these three members, as the evidence indicates, that they carried it out not because they had anything against the victims. If one looks at, taking into account that where Madasi is coming from, he's a Capetonian and taking that Ntintili was from Transkei and also the other one who was involved was in Transkei. As I also indicated that I approached him to apply for amnesty and he refused to do that. He was from Xtendane in Transkei. So all of them were not familiar with that area in which they were, all of them went there with that specific purpose.

And hence I'm saying that if you look in all these operations in which Madasi was involved also Heidelberg, St James, Crazy Beat Disco in Durban and all others which are similar to them, where it was an offence attack, you find that most of the time the people who were involved, it's rare that you find that he's from that area. And all of them are sent there for that specific purpose and thereafter they leave the area. Which in itself indicates that they went there, when they went there, they went there on a specific order, on a specific mission, to pull out that mission and leave the area.

Hence I'm saying that at the end of the day if we look at where the orders came from, it is clear even in this one, when you talk about Xhomiso Nonuxba, Nonuxba was the same person who was at St James, who participated in St James and commanded that unit, and again he was involved in Golf Club. Golf Club by the way was the first operation which was in 1992 before the others, the others followed. Xhomiso Nonuxba was involved.

And if you look at Xhomiso Nonuxba again he was involved in Heidelberg because he was the person who gave the final instructions to Gqomfa when they went to Heidelberg.

Chairperson, that if one takes them in totality, one cannot escape that conclusion to say that all these operations and this operation also specifically was also ordered by APLA, and the applicants carried out the instructions and they carried out the mission on behalf of APLA, which at that particular time was involved in the liberation struggle.

Chairperson, the applicants gave all information that they can remember about the incident, all they can remember about the incident and as to what happened on the day in question, including the preparation for the attack. Therefore, it is my submission that on a balance of probabilities the applicants have discharged whatever onus they have to prove that they have complied with the requirement of Section 20(1) as well as (2). And on that basis I humbly submit to this Committee that they should be granted amnesty as applied for. Unless the Committee wants me to answer any questions, I'm in the position. Thank you, Chairperson.

ADV PRIOR IN ARGUMENT: I think I would be amiss in my duty if I did not make submissions on behalf of the Gerling family. The tragedy in this matter is that we know that Mr Gerling, a young man who was tragically shot in the bar, was not a member of the Defence Force, he was a 19 year old man who had recently left school. We heard his mother give evidence that he was well liked in the community by both white and black people alike.

The other tragedy is that the Yellowwoods hotel was not a military-type installation, it was something in the minds of the applicants. There was no evidence presented to this Committee. In fact, Mr Nel who testified, I think he said the nearest army base was about 60 or so kilometres away. There's certainly no reliable evidence before this Committee that the Yellowwoods Hotel was a place frequented by the members of the Defence Force at the time.

The other tragedy of the matter is that when we look at the submissions made by the representatives of the PAC, their position was fairly clearly stated by Brigadier Fitla, and I refer the Committee to page 49 of the PAC's submissions, the Armed Force submissions dated 7th of October 1997, towards the bottom of the page. Brigadier Fitla was discussing the command structure of APLA, and I quote. He said:

... and he was referring to the command structure of APLA.

And at page 50 he went on to conclude:

Now the understanding there, Mr Chairman, with respect, is that there was a structure in place where APLA being the armed wing of the PAC would give military voice to the political decisions of the command structures, of the political leaders. And as we've heard in other matters like the Heidelberg Tavern and the St James Church and the King William's Town Golf Club attacks, the Crazy Beat Disco in Newcastle, that there appeared to be a breakdown in that structure where the decisions to identify targets were left to the local commanders who were fairly far removed from the political commissar as described by Brigadier Fitla, and that led to a situation where APLA and the PAC in particular were at a loss to explain certain of these attacks. If I may refer also to the submissions at page 84 of the same submission, also towards the end of the page, the quotation was - and that was Mr Mlambo who was giving evidence:

Then at page 85, also towards the end of the page he goes on to say:

And then at page 87, which with respect, underpins the entire motivation of the APLA cadres as we have heard them over these various months regarding these applications, that when we come down to the wire, Mr Chairman, we've heard political rhetoric that it wasn't a racist attack and it wasn't hatred against the whites. It is spelt out at page 87 on behalf of APLA, as follows:

Sorry, let me go a bit beyond that. It was under the heading:

If we look at that submission in context then it is abundantly clear, with respect, that one of the underpinning factors of these type of attacks, if we can call them soft targets which APLA does not draw a distinction with soft targets and hard targets, but it seems clear that it was simply a type of reprisal, black people were dying in the townships, there was the allegations and the rumours about third force activity abounded, it was clear that black people were being targeted and they were being killed. And for that reason APLA commanders felt that white people should similarly be killed.

Then we come back to the actual fact of the attack. The evidence of the applicants leading on from their motive that, or their political objective to strike at a venue where military personnel would be in attendance, was specific. The evidence specifically referred to a planned attack, there had been surveillance and reconnoitring of the target, and that the bar area was in fact the specific target.

The Committee has also heard evidence and seen photographs and sketch plans of the area that was under attack, and it was clear that the applicants simply did not target a specific area, but attacked the buildings surrounding the main structure of the hotel, it would seem almost in a random manner. Possibly one could explain that by saying that their intention was to create as much panic, destruction, damage, as possible.

CHAIRPERSON: Well wasn't it, Mr Prior? Wasn't this typical, where you want to go and cause alarm to the white community you shoot the whole place up?

ADV PRIOR: Yes.

CHAIRPERSON: And the target - their evidence was was it not, that the target had been selected and told to them in Lesotho? They didn't walk around looking for a target, they had been given a target. I'm not sure if it was Lesotho, but they - Umtata, they were sent as a unit to attack this target.

ADV PRIOR: Yes, Mr Madasi I think indicated that one Xhomiso had indicated to him to go to Fort Beaufort, but that was - if the Committee could just bear with me - and they were to meet at King William's Town, but that was certainly ...(intervention)

CHAIRPERSON: ...(indistinct)

ADV PRIOR: Yes, you're quite correct, that it may not have been Umtata/Lesotho, but it was certainly at a place other than Fort Beaufort that the attack was to take place, that the orders were given to him.

CHAIRPERSON: Yes, at page 871.

ADV PRIOR: Yes.

CHAIRPERSON: And that was never challenged seriously, was it?

ADV PRIOR: No, it was never challenged seriously, Mr Chairman.

CHAIRPERSON: That he was told to go to Fort Beaufort, he would met by comrade Zuko who would provide him with accommodation:

ADV PRIOR: Yes, I'm simply on behalf of the victims saying the tragedy in this matter is specifically that, that in the cold light of day, and whether they were given the right information, it would seem they were given the wrong information. Maybe this was one of the motivational tools that were used, because when we look at the result of the attack, it's clear that what they were told wasn't in fact true. And possibly - maybe just a concluding comment, that it's a pity that we have the foot-soldiers before us and not the people that gave those, or made those terrible decisions. They are conspicuous by their absence in these hearings.

Anyway, Mr Chairman, I can't take the matter any further, and obviously I would ask the Commission to, or the Committee to make a finding that Mrs Gerling in particular is a victim in terms of the provisions of the Act, and be referred to the Reparations Committee, thank you.

CHAIRPERSON: It is I think common cause between the parties and agreed to by the Committee that the mother of the deceased, Mrs Anna Helena Gerling is a victim of the attack and we accordingly refer her to the Reparations Committee.

We will take time to consider our decision in this matter.

There was also a Mr Nel who said that he suffered psychological damages as a result, and there may have been other persons present who did suffer psychological harm and in that event - Mr Nel is Ian Johannes Nel - and we would invite the legal representatives of the Committee and the applicants to put forward any other names that have appeared, who were present at the time and suffered psychological damage or damage of that nature so that they can also be referred to the Committee.

Does that conclude ...?

ADV PRIOR: That concludes our role for today, Mr Chairman.

CHAIRPERSON: What are we doing tomorrow?

ADV PRIOR: We're proceeding with the Sterkspruit matter.

CHAIRPERSON: What time would you suggest we start? Who is appearing?

CHAIRPERSON: ... nice long afternoon to prepare for it.

ADV PRIOR: Mr Chairman, may I make a suggestion? I do have a witness or possibly two witnesses coming from Aliwal North. I don't envisage the matter taking all day, I think we'll comfortably finish tomorrow. May we - I would need some time. I understand my one witness is only able to arrive here round about half past seven, towards 8 o'clock tomorrow morning and I'd have to precognise him a little further, so could we possibly adjourn till, to start at 09H30 tomorrow?

CHAIRPERSON: Alright, 09H30 tomorrow morning.