TRUTH AND RECONCILIATION COMMISSION

CHAIRPERSON: Today is Wednesday the 9th June 1999. It is the continuation of the amnesty applications of O Masina and others. The panel and the parties are constituted as previously indicated on the record.

Now Mr Berger, if my memory serves me well we concluded the testimony of Mr Masango yesterday afternoon, would that be correct?

MR BERGER: That is correct Chairperson, the next witness would be Mr Joseph Elias Makhura.

MR RICHARD: (inaudible)

CHAIRPERSON: Yes of course Mr Richard, yes.

JOSEPH ELIAS MAKHURA: (sworn states)

CHAIRPERSON: Mr Berger?

MR BERGER: Thank you Chairperson, I'm not sure if my microphone is working or if the headpiece is working but Mr Makhura will be giving you the evidence in Sotho.

INTERPRETER: Chairperson, may I just indicate that at the moment we don't have a Sesotho interpreter but we can reach a compromise. If he understands isiZulu that will be fine, I can do the interpretation from Sesotho to English.

CHAIRPERSON: Yes we seem to have a potential difficulty with the translation, your client indicated he would be speaking in Sesotho, is that right? We don't have a Sesotho interpreter I am told now but the interpreter has indicated to us that possibly if your client understands Zulu, I don't know if that might help us so I'm not sure how that's going to assist, it might be that we have to take another witness if we can't resolve it.

MR BERGER: Let me try and clear that up perhaps.

CHAIRPERSON: And perhaps let me ask the interpreter. Won't you just speak to Mr Makhura and just explain the situation to him and see what you can come to?

INTERPRETER: We will be able to communicate but then I'm going to simply my Zulu. He will continue testifying in Sesotho, I'd have no problem interpreting the testimony into English or translating it into English.

CHAIRPERSON: Sorry, just explain to me and where does the Zulu come into it?

INTERPRETER: My Sesotho is very bad so I am suggesting to him that I continue speaking isiZulu to him and he continues speaking Sesotho and I'll do the translation from Sesotho into English.

MR BERGER: Chairperson, if it's possible for us to get the services of a Sesotho interpreter it would I think be preferable because there may be nuances lost. The next witness after Mr Makhura was going to be Mr Potsane and he wants to give his evidence in English so perhaps we could swap Mr Makhura and Mr Potsane around and then by the time Mr Potsane is finished, hopefully a Sesotho interpreter will be available?

CHAIRPERSON: Yes Mr Berger, I must say that is preferable. I just want to ascertain what the situation is with the Sesotho interpreter. Okay I think to save some time perhaps we should let Mr Makhura stand down in the interim, we're just trying to resolve this situation and then perhaps we can listen to Mr Potsane?

MR BERGER: We will do that, thank you.

NEIL GRIFFITHS POTSANE: (sworn states)

CHAIRPERSON: Yes Mr Berger?

EXAMINATION BY MR BERGER: Thank you Chairperson.

Mr Potsane, you have made an application for amnesty and subsequent to your application for amnesty you depose to a supplementary statement. Please have a look at Exhibit A in front of you and turn to page 8 of that bundle, particularly pages 8, 9 and 10. Do you confirm that that is your statement and that that is your signature at page 10?

MR POTSANE: Yes I do.

MR BERGER: Mr Potsane, you were born on the 2nd March 1960, is that correct?

MR POTSANE: That is correct.

MR BERGER: And you were born in Soweto?

MR POTSANE: That is correct.

MR BERGER: Could you briefly tell the Committee about your life as you were growing up, where you went to school and how it was, why it was that you came to leave the country?

MR POTSANE: As it has been already told that I was born in Soweto, that is in the year of 1960. But it happened that the following year when I was age 1, my father took a contract in Welkom to work in the mines. As it happened that's where I started school in Pulukong Village up until Standard 4 and then I came back, you know, we had to come back to Johannesburg in 1973 where I started school again in Umkatutu Primary School in Soweto. I was in Standard 5 then and during those days there was this aptitude test which used to be conducted when you are doing Standard 5. I participated in that aptitude test and I passed it. As a result I was able to jump Standard 6 to go to Form 1 and what had happened actually that I think around when I was doing Standard 5, I was preparing myself, you know, especially in terms so far when I'll be entering high school because you know the medium of instruction at high school is English, so I used to go to the library and collect books and read. Well to my disappointment, you know, when you got to form 1, the medium of instruction was Afrikaans.

MR BERGER: How old were you at that time?

MR POTSANE: I was 14 years old.

MR BERGER: And besides going to school you were also holding down certain jobs, is that right?

MR POTSANE: Yes that is correct.

MR BERGER: What sort of jobs were you doing?

MR POTSANE: The kinds of jobs I was doing, my father was old, so a qualified builder so where from time to time when he's got a piece job, you know, to do on weekends, will go and help my father to build, to do the houses and the one particular job I know which I ultimately held was there was this man who had a business of selling coal and what happened was that he used to deliver coal to people, you know, without collecting money. My job was to collect money on weekends and will be paid somewhere at a fee of R2.50 a day.

MR BERGER: And you would give that money to your parents?

MR POTSANE: That is correct.

MR BERGER: What were your ambitions at the time when you entered form 1, did you have any ambition with what to do with your life?

MR POTSANE: Yes I had an ambition. I think my ambitions then was to study like mechanical engineering.

When I got to form 1, that's like - it became so difficult to be able to cope, you know, with the requirements not like now, there were lessons that were conducted like we're doing history in Afrikaans, Maths in Afrikaans, everything was like totally new. I wasn't fluent in Afrikaans and I wasn't prepared, you know, to study in Afrikaans, to presume my studies in Afrikaans.

MR BERGER: We know that in that year, June 16th, the students revolted against the use of Afrikaans in the schools. Were you part of that uprising?

MR POTSANE: Yes I was.

MR BERGER: And were you present in Soweto on June 16th when the shootings began, those ...(indistinct)? At that stage you were how old?

MR POTSANE: I was 16 years old.

MR BERGER: Did you write exams that year?

MR POTSANE: I did write exams that year which were never completed as a result where the teacher ...(indistinct) said because it's going to be like if say everyone is - had to remain where they are, it was going to cause us some kind of a backlog. So they agreed that people can jump to the next standard.

MR BERGER: Then in 1977 you came to a decision to leave the country, is that correct?

MR POTSANE: Yes that is correct.

MR BERGER: Why, what prompted you to leave the country?

MR POTSANE: Well, I wouldn't say that I was politically involved, that is prior to June 16. But it then so happened that when June 16th was organised some activist people who were leading the campaign, these are just certain schools, the school that I was also ...(indistinct) attended and he came back at home and said there had been a sign to write some placards and I should have been whereupon we took a piece of corrugated iron in a joke to write, you know, what exactly was - how did he feel about Afrikaans, you know, particularly asked me to write, to come up with an idea, you know. I think I didn't realise at the time how angry I was in terms of my career having to have been diverted by the usage of Afrikaans in medium ...(indistinct) because that particular year of 1974 when I was doing form 1, I actually failed and at that time, you know, I realised now I was still bitter about it, you know. When I wrote that slogan my father was present and I grew up in a Christian family and for the first time, you know, I wrote like Afrikaans is bullshit and you know, that showed now how I was angry with Afrikaans you know, to talk such a word you know, in front of my father.

And then, well the following day, I went to school as normal, when I didn't expect anything in particular to happen, you know, as to what was organised now, I just thought there's something that's going to take maybe an hour or two and then it will be finished, you know? So I went to school as normal, when we got to school at that time I was still writing exams. I think the paper we were going to write was kind of postponed, that we were going to write in the afternoon, so we were kind of in the premises of the school yard, not doing much, just talking to friends and then it just came up that people from Orlando High School which was kind of opposite to our school, they were coming on like in groups, you know, coming to try to you know to join them and participate in the protest, you know, against Afrikaans. I think at that time me and my friends said well, looks like now there won't be any fighting, so we said to go back home and then well I was starting in Orlando and my home is at Dube so we walked back to Dube. That's when we got to Uncle Tom's Hall, you know, there was this large group of students, so huge that it struck me that something really was happening here and I became interested, you know, to see you know, it's like the idea of going back home, I went to that group and joined it and I considered - everybody was excited you know, all kinds of slogans you know, students were holding placards and all kinds of protest against Afrikaans being taught at schools, that's the medium of instruction which you know, in my mind I totally agreed with them and I think from then on I joined them. Well apparently by that time you know, it had already happened that Hector Pietersen had already been shot and the mood of the students at the time was very charged you know and the looting had just begun, you know, started stoning like all the business vehicles that were coming into Soweto to make business.

MR BERGER: Mr Potsane, I want to take you from June 16th to the decision to the time when you decided that you must leave the country. What prompted you because you didn't leave on June 16th?

MR POTSANE: No.

MR BERGER: You left at the end of 1977?

MR POTSANE: That is correct.

MR BERGER: What prompted you to leave at the end of 1977 and what did you hope to do after you'd left the country?

MR POTSANE: Well what prompted me to leave you know around -at the end of 1977, you know it was mainly the response of the security forces, you know, the police and the army you know who from the day of the June 16th came into Soweto and their conduct you know, was so cruel from that day. People were just being shot, children including others. Each and every morning when you opened the gate during those times a person had been shot somewhere. It was difficult to me in those days, you know, you'd given up these things that you know, you just cannot go on this way, you know, something had to be done and I think I made up my mind in 1977 that I am going to join MK.

MR BERGER: You were 17 years old at the time?

MR POTSANE: I was 17 years old. I left on the 22nd December to Lesotho not to go to school because in my mind, you know, education was not the burning issue, liberation was.

MR BERGER: You joined the ANC in Lesotho?

MR POTSANE: I joined the African National Congress in Lesotho.

MR BERGER: As well as uMkhonto weSizwe?

MR POTSANE: As well as uMkhonto weSizwe, that is right.

MR BERGER: Now from 1977 until 1986 or end of '85 you remained a member of uMkhonto weSizwe, is that right?

MR POTSANE: That is correct.

MR BERGER: You received training in various parts of the world, is that correct?

MR POTSANE: That is correct.

MR BERGER: Very briefly could you tell the Committee where you were trained and in what you were trained?

MR POTSANE: Well I did a commander's course in Angola about eleven months and then that was in 1979. In 1980 I specialised in anti-aircraft and in 1981 I went to do a course in Germany in guerrilla warfare. Well that's about all.

MR BERGER: And that was in 1981?

MR POTSANE: 1981.

MR BERGER: Then after you came back from East Germany that would have been about the middle of 1981, am I correct?

MR POTSANE: Yes that was in June 1981.

MR BERGER: From then until February 1985 where were you?

MR POTSANE: From then until 1985 I worked in the camps doing the rest duties including driving, leadership around Angola and in 1985 I was redeployed to Lusaka where I joined the political headquarters.

MR BERGER: And you worked there from 1985 until?

MR POTSANE: I worked there until 1985 until December of 1985 when I joined the elimination unit which was led by Jabu Masina.

MR BERGER: Now you didn't enter the country at the same time as Jabu Masina and Ting-Ting Masango, is that right?

MR POTSANE: That is correct.

MR BERGER: You followed at a later stage?

MR POTSANE: That is correct.

MR BERGER: With whom did you enter the country?

MR POTSANE: I entered the country with Joseph Makhura, Rufus Pala and Mandla Sogo.

MR BERGER: And when the four of you entered the country is it correct you entered with a large quantity of arms and ammunition as well?

MR POTSANE: That is correct.

MR BERGER: What sort of arms and ammunition did you have with you?

MR POTSANE: Well, in our consignment we had AK47's and ammunition, hand grenades, limpet mines, land mines and RPG 7 Bazuka.

MR BERGER: And all these arms and ammunition was furnished to you by the leadership of MK?

MR POTSANE: That is correct.

MR BERGER: For the purposes of the work of the elimination unit?

MR POTSANE: That is correct.

MR BERGER: You came to the Winterveld Mamelodi region is that right?

MR POTSANE: That is correct.

MR BERGER: And you split up?

MR POTSANE: Who went where?

MR BERGER: Me and Jabu, that is we went to stay in Mamelodi and the rest of the unit, that is Mandla, Rufus, Ting-Ting and Makuka remained in Winterveld. The reason is that all of them were from Mamelodi and they were known there so it wouldn't be fit for them to stay in Mamelodi.

MR BERGER: Whereas you and Jabu Masina were from Soweto?

MR POTSANE: We were from Soweto.

MR BERGER: Now is it correct that as far the planting of the anti-tank land mine in Mamelodi is concerned and the shooting of Sergeant Vuma, Sinki Vuma, you were not yet in the country when those incidents occurred?

MR POTSANE: That is correct.

MR BERGER: The first incident that you were involved in, was the shooting of Mr Lukhele, is that right?

MR POTSANE: That is correct.

MR BERGER: Can you explain to the Committee how events unfolded as far as the shooting of Mr Lukhele is concerned?

MR POTSANE: At a certain point in time now, Mr Masango came up with a document which bore the name of the present party of Kangwane and that of Mr Lukhele as the author, the document stated that as ...(indistinct) wanted Kangwane to be incorporated into Swaziland and it also stated that the police that is the security forces should continue occupying the townships and to uphold the state of emergency. The things that we found now were not in line with first now the way the African National Congress viewed things to go and the way the people never wanted a state of emergency and they never wanted the police in the township and therefore it was irrational document you know, to us, you know it said that we should do something about it. We discuss it among ourselves whether now the author of the document that was Mr Lukhele at the time can be taken as, you know, as a target for elimination for his part in doing this and as the leader also of the opposition party of Kangwane.

And one other thing was that I think earlier this year, it was '85, Mr Enos Mabuza who was the leader of the party which was responsible for governing Kangwane had come to Lusaka, was in Lusaka at that time, I also heard the lot now in moving them around.

MR BERGER: In moving Mr Mabuza and his delegation around?

MR POTSANE: Around Lusaka and when they were actually meeting the African National Congress and it was actually some - he was quite welcome and we viewed Mr Mabuza as a friend of the African National Congress. Well after discussing all those factors amongst ourselves we decided that Mr Lukhele should be eliminated but then we came to an impasse of some kind regarding because we did not actually not like - could have been that Mr Lukhele is on the side of the ANC. The fact that now Mr Mabuza was in the African National Congress last year, any other purpose now could be like a threat to the ANC but not yet come out, you know. So we decided that this matter should be referred to the leadership outside. We did that ...(intervention)

MR BERGER: What was the response?

MR POTSANE: And the response was in the affirmative that our analysis of the situation that he should be eliminated was correct and we were given a go ahead

MR BERGER: Alright, how did you go about the elimination of Mr Lukhele?

MR POTSANE: Well just the one thing that myself and Jabu Masina will take responsibility for taking out operations and I'll be responsible for the elimination part of it and then we did reconnaissance on the place. I don't know it was for how long but well we came up with the data, the final data of Mr Lukhele will be absent doing his duties in Kangwane and weekends will often come back home, that is on Friday.

MR BERGER: And the home is in Mamelodi?

MR POTSANE: The home is in Mamelodi.

MR BERGER: Right?

MR POTSANE: So on a Friday, that Friday we went there.

MR BERGER: That was the 6th June 1986?

MR POTSANE: That was the 6th June 1996.

MR BERGER: '86.

MR POTSANE: '86, that is correct. We went there, myself and Jabu. I was armed with an AK47 with two magazines, a total of 60 rounds each holding 13 and Jabu was armed with a pistol backing me up. Well we drove the car that we were using and went up to a distance away and from the actual house and we walked the rest of the distance.

When we got there now we noticed now that Mr Lukhele was in, was still in and the car was there. I then went inside the yard, went to knock on the door.

MR BERGER: This is the front door?

MR POTSANE: This is the front door.

MR BERGER: Right?

MR POTSANE: A man opened the door but I couldn't say at the time because I haven't seen Mr Lukhele at the time but now I wasn't sure whether it was Mr Lukhele.

MR BERGER: Can I just stop you there for a moment? You had your AK47 and the two rounds, the two magazines with you?

MR POTSANE: I had the two magazines with me and my AK47.

MR BERGER: And you concealed it some way?

MR POTSANE: Yes I concealed it inside my - in the background which I was wearing. So because I was not sure whether it was Mr Lukhele so I said no well, it don't be fair not to take him on the door here, let me get inside and see what's the situation there, that is if he is the only man there and then it will mean that there is Mr Lukhele. I went in and that's when I passed the door, there was a lady sitting next to the door here and another lady was sitting across the table on the other side.

MR BERGER: On a sofa?

MR POTSANE: On a sofa, that's right.

MR BERGER: You indicate that to your left?

MR POTSANE: Yes that is to my left as I entered.

MR BERGER: As you entered, yes.

MR POTSANE: Yes. So I went in. Those were the only three people in the room that is including Mr Lukhele who was at the time, you know, I left him at the door. And then I went in because I told Mr Lukhele I had been sent. He said I should go and take a seat which I did not because I just went in and turned around and when I turned around it means Mrs Lukhele at that time was sitting, was now on my right hand side and I was facing Mr Lukhele.

MR BERGER: Where was he?

MR POTSANE: I think he was beginning to come from the door, that is in my direction.

MR BERGER: And the other woman that you'd seen, was she still sitting next to the door?

MR POTSANE: Yes that is right. Then I took out my weapon which was already now ready to shoot at the time and began to fire. Well the type of fire that it was in short burst.

MR BERGER: And you were firing at?

MR POTSANE: I was firing at Mr Lukhele. I can't remember it was on the first short burst or the second short burst, he fell down where I continued fire at him.

MR BERGER: Now when you fired at him, when you started firing at him, he was near the door?

MR POTSANE: Yes that is correct.

MR BERGER: And the other woman who we know was Mrs Glugu, she was still sitting next to the door?

MR POTSANE: That is correct.

MR BERGER: When you fired at him you were also firing in her direction were you not?

MR POTSANE: I'll say yes, I was firing also in her direction but my target was Mr Lukhele.

MR BERGER: Did you plan to kill Mrs Glugu?

MR POTSANE: No I never planned to kill Mrs Glugu.

MR BERGER: Did you know that with an AK47 in such a small confined space the chances are that you could hit someone, that you don't intend to hit?

MR POTSANE: Yes that is correct.

MR BERGER: And what was your attitude?

MR POTSANE: Well, I think it should be understood that there are pressures that exist you know, especially when operating inside the country, when you get the target and you don't deal that target at that time, the chances are that, you know, you might never get that target again and my attitude was that the job had to be done on that day and had to finish that day.

MR BERGER: How did it come about that Mrs Lukhele was hit because as you say she was sitting to the right of where you were shooting?

MR POTSANE: Well what happened, as I was continuing firing at Mr Lukhele who was actually on the floor by that time, Mrs Lukhele crawled on her knees. I think in my mind I was saying she was trying to escape, you know. That's when as she turned a corner, because it's a sofa, she crawled from the sofa and as she turned, you know, she was hit on the foot.

MR BERGER: You indicate with your hands that she moved from the sofa in the direction of the door.

MR POTSANE: Ja, of where Mr Lukhele was lying.

MR BERGER: When he fell can you recall how he fell, in which direction?

MR POTSANE: He fell exactly in front of Mrs Glugu, he fell like his body was more to the right of where Mrs Glugu was sitting and ...(indistinct) her legs were just around where Mrs Glugu was sitting?

MR POTSANE: His legs?

MR POTSANE: But the body was much more to the right.

MR BERGER: In the direction of Mrs Lukhele?

MR POTSANE: In the direction of Mrs Lukhele, that is right.

MR BERGER: If you had wanted to kill Mrs Lukhele, could you have?

MR POTSANE: If it was my task you know and we had planned to kill all the occupants in the room or everybody who we found in the room, I still had you know, enough ammunition with me to do that because when I left, I left with the impression that I'd injured Mrs Lukhele, whom I'd seen you know, shooting on the leg. But for the part of Mrs Glugu, that I knew that I learned when I read the newspapers in the morning that she was hit and actually killed.

MR BERGER: Did she fall off the chair?

MR POTSANE: No.

MR BERGER: How much ammunition did you use?

MR POTSANE: Well I used the rest of the first magazine and just when I got out and loaded another magazine and left.

MR BERGER: Did you shoot any rounds from the second magazine?

MR POTSANE: No, not at all.

MR BERGER: You say you then left, you joined up with Jabu Masina and then you left the scene.

MR POTSANE: Now I then left the room, met with Jabu Masina outside and then we both retreated back to where we stayed.

MR BERGER: Is there anything more about the incident that you want to say?

MR POTSANE: Now I'd like to tell this Committee that circumstances around that time, you know, which I must say that were forced upon us to do some of those actions, you know. There was such that I think we found ourselves with no choice but to do some of those actions which I must say that should the situation have been, had been otherwise, I would be very much happy that they never occurred and just like as much we have said, you know, purpose in our statements during the trial court that we regretted the killings especially of Mrs Glugu and the injury on Mrs Lukhele. I'd like to further on say now, especially to the family of Mrs Lukhele that today I'll say now including Mr Lukhele, if the situation never existed that I had to do what I did that day, I'll be a much happier person, you know, that a thing of that nature did not happen to anyone because it really does hurt to lose someone that you love. It doesn't matter under which circumstances.

MR BERGER: Mr Potsane, I want to move to the Silverton bomb. That was on the 4th July 1986. Now you were not involved in actually planting the bomb, is that correct?

MR POTSANE: That is correct.

MR BERGER: But you were involved in discussions prior to the planting of the bomb, is that right?

MR POTSANE: That is correct.

MR BERGER: Can you briefly tell the Committee how it came about that there was a decision to plant that bomb and why?

MR POTSANE: Well I remember that day very well. Mr Masango came, kind of called a counsel that now we shall sit down and look into this matter and now he had located and seen a symbolic target which was in a form of a bus stop, a White bus stop in a White area, Silverton and he said you know, that target would actually enhance that why they further aims of the African National Congress because that is now like when we're discussing it now, we can all say that the White people of this country were actually putting a hand in the oppression now of the Black people of this country. They were the ones who actually made it possible for the National Party to govern, they never publicly criticised the - you know it's like I understand that I don't ever remember like White people going out to the street and demonstrating against the actions of the government. We're all ...(indistinct) in this country and we all read newspapers that did not know what was happening in the townships. I don't think that for them will be correct to say because I know that for instance they're very critical people, they knew what was happening and they just never cared and on those bases of affairs White civilians now had to be made aware one way or the other you know that there was a war going on in this country.

MR BERGER: How did you think and when I say you, I mean you all as a group, I mean how did you think that the planting of a bomb in a White - at a Whites only bus stop would further the aims of the African National Congress?

MR POTSANE: Well first of all we had a situation whereby the White people of this country were the only voters of that government, you know, which oppressed the Black people of this country and every time you know, it's not like you know, the National Party was there for 48 years and voted for it and all for how many times. Every time you know, the National Party wanted the mandate you know, they gave it willingly to the National Party and so on, we support you and if that is in our mind your know, they were responsible and they heard, they had to be made aware and in making them aware or bringing the war into their area where they lived in comfort, they will see that the National Party does not present or it is unfair you know for the National Party to think of them alone because the people out there who are suffering and therefore they will take appropriate action, you know, in terms of condemning the government of the day to bring about change.

MR BERGER: Did you have authority from the African National Congress to plant this bomb?

MR POTSANE: Yes we did.

MR BERGER: On what did you base that authority?

MR POTSANE: Well that authority if should it be that the previous African National Congress had a conference, now it is important to know what the conference is now, especially with the African National Congress. A conference is not - it's where each and everyone becomes an ordinary member in the ANC. There's no leadership, there's no one that is for instance going to start afresh. Everyone becomes an ordinary member, no elections are going to be conducted as to who is going to become the president, become what and in that conference as I say not like every member of the African National Congress is equal. Certain discussions are conducted, you know, including the situation in the country, especially the war which was going on and the African National Congress, as the African National Congress decided that the war is to be taken to the White areas, the issue on hard target and soft target was reviewed and ended up in a revolution that the distinction between hard and soft should disappear.

MR BERGER: You were not present at the Kabwe conference, is that right?

MR POTSANE: I was not present at the Kabwe conference.

MR BERGER: How did you come to know about the decisions taken at that conference?

MR POTSANE: Well what happened is conference are attended by delegates who are chosen from different regions. Well as we know that or most know that the African National Congress is all over the world so each and every like place, could be in Italy, could be in London, could be in America, could be in Angola, could be in Zambia, those people have to stand at delegation in - that delegation is going to express the views of the people now, where they come from, that they want the situation - we want you to go and tell the conference this is how we - so when they came back, because we have sent them, they must report back to us, that is these are the positions which we are taking at the conference.

MR BERGER: And you did attend such a report back?

MR POTSANE: That is correct.

MR BERGER: Besides the decisions taken at Kabwe, were you aware of any other discussions within the African National Congress where this escalation of the conflict, escalation of the war from hard to including soft targets was discussed?

MR POTSANE: Ja there were discussions of that nature especially not like if one could remember very well a day before the conference that which was not only the only time but that had become a pattern which had been taken by the Nationalist Party government to go and attack refugees, that is in the neighbouring countries and they did that, you know, and I'm sure they did that knowing fully well that the following day we'll be going to sit down and discuss matters relating to the struggle in a conference like fashion and they went to Botswana and shot at refugees.

MR BERGER: You're referring to the raid on Gaberone on the 14th June 1985?

MR POTSANE: That is correct and not that that was the only influence as I've said, it was ...(indistinct) that had occurred in Matola, had already occurred in some other parts like in Lesotho. There were discussions among the people that had prior to that raid and even after that we should begin to make White civilians feel what the Black people were feeling now.

MR BERGER: Did you know about the songs about Andrew Zondo and the poems about Andrew Zondo.

MR POTSANE: Yes I did. Andrew Zondo hit a target in Amanzimtoti and it was one of the operations which we welcomed and we actually took him as a hero to do that kind of an operation.

MR BERGER: Now after the bomb was planted and exploded at Silverton, were you aware of the decision to report the fact that your units had planted that bomb, to report that to the leadership in Botswana?

MR POTSANE: Yes I was.

MR BERGER: Was there anyone in your unit who said we shouldn't report this incident to the leaders?

MR POTSANE: No.

MR BERGER: Was there anyone in the unit who voiced an objection to say this is not ANC policy this will not advance the struggle?

MR POTSANE: No.

MR BERGER: Were any disciplinary steps taken by the leadership against your unit?

MR POTSANE: No.

MR BERGER: Was the unit recalled?

MR POTSANE: No.

MR BERGER: Was the unit allowed to continue with it's operations?

MR POTSANE: Yes that's right.

MR BERGER: The next operation was the planting of the anti-tank mine in Soshanguve?

MR POTSANE: That is correct.

MR BERGER: And that one you were actually involved in the operation itself?

MR POTSANE: That is correct.

MR BERGER: Very briefly, can you tell the Committee what your participation in that incident was?

MR POTSANE: Well my participation in that operation, I participated in providing security for Mr Makura who was actually the man who placed the land mine at that spot.

MR BERGER: What was the aim of that operation?

MR POTSANE: The aim of the operation after carefully like looking at the situation, there was a heap of soils in an environment where there was a whole construction and that heap of soil kind of prevented cars from getting over the other side because I think the tar was still wet or they've just laid a new tar so they were preventing cars from moving over into the other side so the heap was so huge and high that an ordinary car wouldn't be able to go over but then we did realise and say that military vehicles in the form of Casspirs were not deterred by that heap, they would just go over that heap of soil and go about, you know, their business of patrolling in the township so based on those reasons now, we decided we were going to plant a land mine there.

MR BERGER: And your target was to get one of those Casspirs?

MR POTSANE: Our target was to get one of the Casspirs.

MR BERGER: You've read Mr Makura's statement in relation to the planting of the land mine and the circumstances surrounding that and you confirm that his statement is true and correct, am I right?

MR POTSANE: That is correct.

MR BERGER: As a result of your operations you were charged, you were arrested and you were charged and when you appeared before Judge de Klerk and two assessors, you and Mr Makura, Mr Masina, Masango, you refused to plead?

MR POTSANE: That is correct.

MR BERGER: Why was that

MR POTSANE: Well, we refused to plead because after carefully analysing the situation amongst the four of us and analysing the previous cases which were - had gone before the South African law, we decided that in those courts there is no fair game.

MR BERGER: Not a fair game, you said?

MR POTSANE: Ja, there is no fair game in those courts, you are going to appear in front of that court, those courts were designed to tell the White public how horrible a person you are and uncivilised, so it was like for them, you know, they were playing a political game and that was the only political part of it, aspect of it and the second aspect, you know, ...(indistinct) you were soldiers of uMkhonto weSizwe and as a result now and ...(indistinct) to the Geneva Convention and we believed now we had the right not to stand trial in the civilian court but we tried in a military tribunal. Well we felt it was appropriate to discuss our issues in a military sense and well ensure that we were going to tell them that as much as they have declared, I think P W Botha at that time had already told the White community and the White civilians that the country was in a state of war and who they were fighting, they were - I mean there was no imaginary like enemy, they knew the enemy was the African National Congress and the forces of liberation which existed at that time.

MR BERGER: And your refusal to plead and your refusal to participate was a political stand on your side, is that correct?

MR POTSANE: That is correct.

MR BERGER: And is it correct that in fact all the acts for which you were charged, you were charged for furthering the aims and objectives of the ANC?

MR POTSANE: That is correct.

MR BERGER: You knew that your failure or your refusal to participate in the proceedings was likely to result in the death penalty, am I right?

MR POTSANE: That is correct.

MR BERGER: What was your attitude and the attitude of your co-accused to that?

MR POTSANE: Well the attitude of - my attitude and attitude of - my co-accused at that time was it would be best if we adopt a line which is going to hit back at them by not recognising their authority and not recognising their structure, that is the court and in actual fact making a statement to our people that we are fighting a just war against an unjust system of apartheid which only saw us as criminals more than people who were fighting for democracy and it was also a message to the white people that gone are the days where they could dictate terms even if we are arrested, you know we can dictate our own terms.

MR BERGER: After you were convicted, the judge said to you that you now had to lead evidence to establish extenuating circumstances, do you remember that?

MR POTSANE: Yes I do remember.

MR BERGER: And he said that he recognised that you were refusing to participate because you were soldiers of uMkhonto weSizwe but that nevertheless you could lead evidence in extenuation without prejudice to your stand of being soldiers, do you remember that?

MR POTSANE: Yes I do.

MR BERGER: And do you remember what your response was?

MR POTSANE: Yes, our response we still refused to plead, you know, to make any extenuating circumstance in relation to our participation in the war to liberation, we still did not recognise the courts that we should be that we tried as, you know, as civilians. So we refused.

MR BERGER: Knowing that you would be sentenced to death?

MR POTSANE: Of which the judge had already indicated to us that if no extenuating circumstances in found they're going to - will be sentenced to death and still we refused.

MR BERGER: And is it correct that shortly before sentence was handed down, you and Mr Masina, Mr Masango, Mr Makhura, you appeared in court in the uniform of uMkhonto weSizwe?

MR POTSANE: That is correct.

MR BERGER: And after that you were sentenced to death, expect for Mr Makhura?

MR POTSANE: That is correct.

MR BERGER: We know that subsequent to that you spent 18 months on death row?

MR POTSANE: That is correct.

MR BERGER: And it was only after that that the appellate division set aside your death sentences and substituted them with 25 years imprisonment?

MR POTSANE: That is correct.

MR BERGER: Mr Potsane, you've been sentenced, you've been tried, you've been sentenced, you've been released. Why is it that you are now applying for amnesty for all these incidents?

MR POTSANE: Well I want to put it this way now, when this idea of Truth and Reconciliation now first came into this country and was in actual fact adopted, I've always supported it. I supported it because I felt we cannot stand at one place pointing fingers at one another, looking at the part as something that is - should dominate our lives. One way or the other now we have to move on. I'm from an organisation which in this preamble on these documents that South Africa belongs to all who live in it, Black and White and when the Truth and Reconciliation Commission and all it's purposes were actually now adopted and only to mention that people you know who were supposed to apply for amnesty, not because we were monsters, not because we were in a spirit, you know, of going to one another and extending a hand of friendship and say the past is the past and let us move on and build our country together as one people, enjoy the fruits of our labour together. I felt that was the ...(indistinct) that I will never let, you know, must pass me. I had to jump in and actually now also extend my hand of friendship to the victims or the people that suffered because of my actions in pursuit of democracy and I'm happy today that I'm here, sitting here explaining my actions so that you know, other people can understand you know, why I did those things, I never done them for personal gain or for vengeance but I think on the 2nd June this month there's a further confirmation that what I wanted, you know, the next government I wanted is not only sustained by me or those people who were fighting for liberation of peoples who were in the African National Congress only, the rest of the people of South Africa participated in voting is democracy for all and I'm happy now, that is the situation and it's time that we move forward.

MR BERGER: Thank you Chairperson, I have no further questions.

ADV GCABASHE: Mr Berger, on page 15 of the original bundle there are two additional acts that are mentioned, you're not dealing with those at this hearing? Are those a subject of a different hearing?

MR BERGER: Ms Gcabashe, are you referring to the Shell House incident?

ADV GCABASHE: And Molopi, I'm assuming 1996 is a printing error?

MR BERGER: Yes. Molopi has already been the subject matter of another hearing in respect of which the applicant has already been granted amnesty and the Shell House hearing has been completed and we are still awaiting judgement in that one.

ADV GCABASHE: Now in terms of amnesty, you're not dealing with that now, you'll wait to do that at some other stage?

MR BERGER: I mean the amnesty hearing in respect of the Shell House incident has already been dealt with and we're waiting for the decision. Molope has already been decided.

ADV GCABASHE: Thank you.

CHAIRPERSON: Mr Booysen have you got any questions?

CROSS-EXAMINATION BY MR BOOYSEN: Thank you Mr Chairman, only one.

Mr Potsane, in your evidence you testified that for the killing of Mr Lukhele you specifically obtained permission from the ANC. Now what was the difference between the killing of Mr Lukhele and the bombing in Silverton? Can you explain that, why didn't you get permission beforehand?

MR POTSANE: Could you put the question again?

MR BOOYSEN: Sure, I'll do so. You testified that you obtained prior to the killing of Mr Lukhele, that you obtained permission from your leadership, is that correct?

MR POTSANE: That is correct.

MR BOOYSEN: Now my question is what was the difference between the killing of Mr Lukhele and the planting of the bomb in Silverton, why didn't you get permission for the bombing in Silverton?

MR POTSANE: Well on that one I'll say we were a unit now and as a unit, politically trained and militarily trained, where inside the country to come and conduct our war of liberation and in that war there will be orders, there were orders that were given and including in the orders, on the order that we were given there was a general mandate which was given to the unit that is where you see appropriate that you come up with the decision politically and otherwise that the target is correct then it can take that target without having to consult back.

MR BOOYSEN: Thank you Mr Chairperson, no further questions.

CHAIRPERSON: Thank you Mr Booysen. Mr Rammutla?

CROSS-EXAMINATION BY MR RAMMUTLA: Thank you Mr Chairperson.

I just want to find out from you, Mr Potsane, regarding the death of Mr Lukhele first. Were you sure who Mr Lukhele was when you arrived at his home or perhaps you made only your final observation whom he was after you have entered the house?

MR POTSANE: No, I'm not sure when I entered the house but my observation was made when I entered the house because as I've said, I came to the door, the only male person who opened the door, the male person who opened the door, I wasn't sure that it was Mr Lukhele but I already indicated to him that I've been sent to Mr Lukhele, he said come in. So when I got in there were only two ladies and he was the only male and to me that told me that he was indeed Mr Lukhele.

MR RAMMUTLA: Do you perhaps have any recollection how many shots did you fire directly to Mr Lukhele?

MR POTSANE: Thirty one.

MR RAMMUTLA: Okay, let's now move to 8.3 of your founding statement of Exhibit A. Are you with me on Exhibit A?

MR POTSANE: Okay, thank you.

MR RAMMUTLA: You said a specific authorisation of the ANC was sought to eliminate Mr Lukhele. Who in particular or perhaps which body within the ANC structures abroad authorised the killing?

MR POTSANE: Well the way it happened, it happened this way, at that stage it was sent to Botswana and Botswana said they will come back to us, that is inside in effect all I'm trying to say is that Botswana since it was our immediate commanders, they never took the decision, they referred the matter to Lusaka where upon Lusaka brought down the instructions, dealt with Botswana and Botswana conveyed the instructions back to us to proceed with the operation.

MR RAMMUTLA: So further if I ask you this, was because Mr Mabuza was an ANC sympathiser, was he in the know if it is within your knowledge that Mr Lukhele is one of the public enemies against ANC and you're about to eliminate him? I - you have got knowledge you can expantiate on that please?

MR POTSANE: No, no, that's far from consent.

MR RAMMUTLA: So Mr Potsane, are you prepared to perhaps shake hands with one of the victims, Mrs Lukhele, in this particular matter who is present in this hearing today.

MR POTSANE: I very welcome to do that.

MR RAMMUTLA: Can I perhaps - I'm not sure Mr Chairperson if I'll be going beyond my powers in that? Can I perhaps maybe make them shake hands while the witness is still just next to us unlike doing it after we've adjourned perhaps?

CHAIRPERSON: Yes I don't know if it's just a matter of shaking hands, perhaps they want to discuss the matter. Do you normally find that this kind of encounter is much more deep than just shaking hands you know, people want to ask questions, people want to ask details that have been bothering them and so on and often we find that this sort of meeting is much more fruitful if it's better arranged so perhaps it is advisable that you, with the assistance of Ms Mtanga who has knowledge of this perhaps have a fuller encounter between the parties afterwards? I think that might be more meaningful to your client as well and to - that's not only Mr Potsane, perhaps all of the other applicants would like to say something to your client, you know? Perhaps we should leave it in the normal course of events, you know, where that is arranged outside of the formality of the hearing?

MR RAMMUTLA: I think I'll definitely Mr Chairperson choose the alternative you are giving to me, we will arrange that after and I further wish to say I've got no further questions to direct to Mr Potsane, thanks.

CHAIRPERSON: Yes, thank you Mr Rammutla. Ms Mtanga, you've heard the request, perhaps you can deal with that? But in the meantime have you got any questions?

MS MTANGA: I have no questions Chairperson, thank you.

CHAIRPERSON: Mr Berger, have you got anything else? Re-examination?

MR BERGER: Nothing further thank you Chairperson.

CHAIRPERSON: Yes, Mr Potsane you're excused.

MR POTSANE: Thank you.

CHAIRPERSON: Yes Mr Berger, we are likely to experience a bit of a delay with the Sesotho interpreter. I assume that you would have - was it Mr Masina?

MR BERGER: Mr Masina would be next if - are we not going to take the adjournment now?

CHAIRPERSON: Yes we will, I thought I'd just raise it and indicate to you. So Mr Masina, would he be the last witness you would be calling?

MR BERGER: Yes he would be .

CHAIRPERSON: Thereafter we will be at the mercy of the Sesotho interpreter whom we are told will be here around lunch time?

MR BERGER: Yes.

CHAIRPERSON: Alright. Well, we'll take the tea adjournment for 15 minutes at this stage.

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JABU OBED MASINA: (sworn states)

EXAMINATION BY MR BERGER: Thank you Chairperson. Mr Masina will be giving evidence in isiZulu.

CHAIRPERSON: We've got that interpretation service?

MR BERGER: Yes.

Mr Masina, you have deposed to a statement, a sworn statement, which appears at pages 11 and 12 with an annexure at page 13 and 14 of Exhibit A. Do you confirm that that is your signature on page 12 and you confirm the contents of this statement?

MR MASINA: Yes I do.

MR BERGER: You also say in the statement that you have read the statements of Mr Makhura, Masango and Potsane and you confirm that the contents of both statements are true and correct insofar as they relate to you. Do you confirm that?

MR MASINA: Yes that is correct.

MR BERGER: Now we've already dealt with your history and how it was that you came to leave the country and I'm not going to repeat that again. You've also heard, you've been sitting here and listening to the evidence of Mr Masango and Mr Potsane and you've heard them talk about the establishment of your unit and the operations that your unit was going to undertake in South Africa, do you confirm that their evidence is true and correct?

MR MASINA: Yes that is correct.

MR BERGER: You were appointed as the commander of this unit, is that right?

MR MASINA: That is correct.

MR BERGER: And you entered South Africa with Mr Masango in was it end of 1985 or the beginning of 1986?

MR MASINA: I think it was at the beginning of 1986, it could have been around February or thereabouts.

MR BERGER: You've also heard the evidence about - well you heard what I said in my opening address about my trial and then you've heard the evidence about Mr Potsane in relation to what happened at your trial and the stands that the four of you took as soldiers of uMkhonto weSizwe. Do you also confirm that that is true and correct?

MR MASINA: Yes that is correct.

MR BERGER: I want to take you very briefly through the incidents for which you apply for amnesty, we've already dealt with Mr Chaki, we're not going to deal with that again. The next incident was the anti-tank land mine in Mamelodi, the 16th February 1986. Who decided to plant that mine, whose decision was it?

MR MASINA: Are you referring to the land mine that was detonated by a Casspir?

MR BERGER: Yes, that is the one, the one in Mamelodi.

MR MASINA: It was an agreement between myself and Ting-Ting Masango because the other ones had not arrived yet so Ting-Ting and myself came together and we agreed that we were going to plant this land mine because we had already gathered information to the effect that police vehicles were using that road.

MR BERGER: And you were present with Mr Masango when the land mine was planted?

MR MASINA: That is correct.

MR BERGER: The second incident is the shooting of Sergeant Vuma, 16th March 1986. Again, is it correct that you were present with Mr Masango when he shot Sergeant Vuma?

MR MASINA: That is correct.

MR BERGER: That was also in Mamelodi?

MR MASINA: That is correct.

MR BERGER: Do you confirm the reasons that Mr Masango gave for planting the land mine in Mamelodi for the killing of Sergeant Vuma and in fact for all the incidents that he testified to, do you - let me just name them, it would also be the killing of Mr Lukhele, the Silverton Bomb and the anti-tank or bomb in Soshanguve, do you confirm the reasons given by Mr Masango for all of those operations?

MR MASINA: Yes that is correct.

MR BERGER: The incident with Sergeant Vuma, you were also outside the house, is that right?

MR MASINA: That is correct.

MR BERGER: Were you armed?

MR MASINA: Yes I was armed as well, armed with an AK-47.

MR BERGER: Were you ready to shoot Sergeant Vuma should the opportunity present itself to you?

MR MASINA: That is correct.

MR BERGER: So it was just a question of who would be in a position first to shoot him between you and Mr Masango?

MR MASINA: That is correct, I was also prepared to fire shots.

MR BERGER: Okay. Now your role in the killing of Mr Lukhele and Mrs Glugu and the injury to Mrs Lukhele, besides the fact that you were the commander of the unit, were you also - or can you explain to the Committee how it was that you got about obtaining the approval from the ANC abroad for this particular operation?

MR MASINA: What happened was that Ting-Ting Masango got a pamphlet that had been written by David Lukhele. He brought this pamphlet to me and we learned that Mr Lukhele was against us and he was in cohorts with the then apartheid government so that we - I can say we were not quite sure whether he was collaborating with the then government because we were thinking as well about Mr Enos Mabuza whose ruling party was in charge of the Kangwane government and ...(intervention)

MR BERGER: Let me just interrupt you there, it's not necessary for you to repeat again what Mr Masango and Mr Potsane had said because you have already confirmed that. What I'm specifically asking you about is we know that because you as a unit were unsure as to whether or not Mr Lukhele was working with the ANC, you had to obtain prior authorisation or you had to obtain specific authorisation from the ANC before he could be killed. Now the question is how did you go about obtaining that authorisation?

MR MASINA: We fixed an appointment with people who were based in Botswana. We sent our agent recruiter to whom we had given a letter to take to the people in Botswana. He came back with a written response giving us the go ahead in the elimination of Mr Lukhele.

MR BERGER: As far as this specific operation is concerned, you accompanied Mr Potsane to Mr Lukhele's house?

MR MASINA: That is correct.

MR BERGER: When Mr Potsane went into the house did you know who would be inside the house?

MR MASINA: Yes because Lukhele's car was parked outside but I would not have known who else was in the house but the information that we had already was that Lukhele was using his specific vehicle. On seeing it we should know that he was at home.

MR BERGER: You couldn't exclude the possibility that other people would be in the house at the time, is that right?

MR MASINA: No, we would not have excluded that possibility.

MR BERGER: Nor could you exclude the possibility that other people could be injured or killed when Mr Potsane opened fire with an AK-47 against Mr Lukhele, is that right?

MR MASINA: That is correct.

MR BERGER: The incident with the Silverton bomb, you were not involved in the actual planting of the bomb, is that right?

MR MASINA: That is correct.

MR BERGER: But you were involved in the discussions both before the planting of the bomb, the decision to plant the bomb, am I right?

MR MASINA: That is correct.

MR BERGER: As well as the decision to report your unit's activity, your unit's participation in the planting of the bomb to the leadership in Botswana, is that right?

MR MASINA: That is correct.

MR BERGER: Other than what Mr Masanga has already testified about your reasons for planting the bomb and Mr Potsane, have you anything to add over and above what they've already said?

MR MASINA: No save to say that I too would be pleased if the people who were affected or injured during our liberation struggle that they reconcile with us. It should be understood that what we did was as a result of the pressure that we were facing, we were under oppression. I'd be very delighted if there could be reconciliation between the parties.

MR BERGER: As far as the bomb which was planted in Soshanguve is concerned, again you were not physically present when that mine was planted, is that right?

MR MASINA: That is correct.

MR BERGER: Were you involved in the discussions beforehand as to whether it should be planted and where it should be planted?

MR MASINA: That is correct.

MR BERGER: Would it be correct to say that in respect of all of the incidents that we have spoken about and for which you seek amnesty except for the killing of Glugu, you acted as the commander of the unit and you took final responsibility for the actions of the unit?

MR MASINA: That is correct.

MR BERGER: From whom did you get your initial instructions that you were to constitute yourselves as an elimination unit and you were to enter the country with the arms and the ammunition that you did, from whom did you get your initial instruction?

MR MASINA: Except for the Chabi incident, I got the instruction from Simelane insofar as that one was concerned but I received the other instruction from Chris Hani pertaining to the other incidents.

MR BERGER: That would be the establishment of the elimination unit?

MR MASINA: That is correct.

MR BERGER: Thank you Chairperson, I have no further questions.

CHAIRPERSON: Thank you Mr Berger, Mr Booysen?

CROSS-EXAMINATION BY MR BOOYSEN: Thank you Mr Chairperson.

Mr Masina, can you just tell us, who was involved in the actual planting of the bomb, who visited the scene and just give us the names please? The bomb in Silverton, sorry.

MR MASINA: It was Joseph Makhura who was in the company of Ting-Ting Masango. There is also another one who is not present among us here, his name is Mandla.

MR BOOYSEN: Thank you. Where is Mandla today?

MR MASINA: I cannot say, he disappeared he is actually one of the MK soldiers with whom we worked. He disappeared here in South Africa.

MR BOOYSEN: Thank you Mr Chairperson, no further questions.

CHAIRPERSON: Thank you Mr Booysen. Mr Rammutla, any questions?

CROSS-EXAMINATION BY MR RAMMUTLA: Thanks Mr Chairperson.

Mr Masinga, I want to take you back to the agent who delivered the letter or perhaps the message to the ANC in exile requesting authorisation for the elimination of Mr Lukhele, are we together on that?

MR MASINA: Would you please repeat the question?

MR RAMMUTLA: Okay, I'll do that with pleasure. Mr Masina, I want to take you back to the issue of the agent who delivered the letter to the ANC in exile, are you with me now on that?

MR MASINA: Yes.

MR RAMMUTLA: Mr Masina, for how long were you working with this agent before you authorised him to deliver your letter to the ANC in exile?

MR MASINA: We worked with him I can say from around the time we entered the country.

MR RAMMUTLA: What you are saying is that this particular agent was stationed in the country and he was not a member of the ANC or perhaps uMkhonto weSizwe?

MR MASINA: No, I can say he was a member of the ANC as well as that of uMkhonto weSizwe because when we met him he was already making preparations to become a soldier of MK, maybe the thing is he did not get an opportunity to go abroad but we also gave him a crash training on how to use weapons.

MR RAMMUTLA: So when you sent him to deliver this particular letter of yours, to whom did he deliver to in the ANC in exile?

MR MASINA: He used to meet with Tengiwe.

MR RAMMUTLA: So we can say that or perhaps find that Tengiwe was the one who authorised the elimination of Mr Lukhele?

MR MASINA: That is correct.

MR RAMMUTLA: Okay, thanks Mr Masina, I've got no further questions to direct to you. Thanks Mr Chairperson.

CHAIRPERSON: Thank you Mr Rammutla. Ms Mtanga any questions?

MS MTANGA: I have no questions Mr Chairperson.

CHAIRPERSON: Panel?

ADV GCABASHE: Just on this very last question, Mr Masina, that Tengiwe therefore authorised the killing of Mr Lukhele, my understanding from the evidence that has been led is that Tengiwe passed the information on to her superiors who made the decision in Lusaka, it was then remitted back to Tengiwe who then sent it back to you, is that not what happened?

MR MASINA: That is correct, we received this information or message from Tengiwe for our agent recruiter, the one with whom we were liaising with Botswana.

ADV GCABASHE: But you knew that Tengiwe had passed your message onto Lusaka and the response had come from Lusaka, not from Tengiwe herself?

MR MASINA: That is correct.

ADV GCABASHE: So in fact you're wrong when you say that Tengiwe authorised the killing, it's not Tengiwe, it's Lusaka but you don't know who in Lusaka, that's my understanding?

MR MASINA: That is correct.

ADV GCABASHE: Thank you.

CHAIRPERSON: Yes, have you got any re-examination Mr Berger?

RE-EXAMINATION BY MR BERGER: Just one aspect, Chairperson.

Although you didn't, I'm taking now about the Silverton bomb, although you didn't go to the scene on the day that the bomb was planted, is it correct that you went to the scene the day before with Mr Masango to have a look at the scene?

MR MASINA: That is correct.

MR BERGER: And it was at that time that you took a decision that this was an appropriate place to plant a bomb?

MR MASINA: That is correct.

MR BERGER: I have no further questions, thank you.

CHAIRPERSON: Thank you Mr Berger. You are excused Mr Masina, thank you.

NAME: JOSEPH ELIAS MAKHURA

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MR BERGER: Chairperson, Mr Makhura tells me that if the services of a Sesotho interpreter is not available now, he would be prepared to take the alternative course and that is to get questions in isiZulu and he would speak in Sesotho. Apparently the interpreters would be able to follow it that way.

CHAIRPERSON: Yes, well if he is happy with that course we have arranged an interpreter, a Sesotho interpreter, who is supposed to come from the hearing at IDASA Centre in Pretoria. If he is happy to proceed then you know, we can do that.

MR BERGER: He indicates he is happy to proceed yes.

CHAIRPERSON: Have you heard what your counsel has told us that you are prepared to continue without the assistance without a Sesotho interpreter and that you are prepared to follow the suggestion that is made that the interpreter who is present would translate the questions to you in Zulu and that you would communicate via that sort of means. Would that be in order, do you accept that?

JOSEPH ELIAS MAKHURA: (s.u.o.)

CHAIRPERSON: Yes, as we have indicated we do have, the Amnesty Committee has the services of Sesotho interpreters but presently they are engaged at a hearing which is in Pretoria at the IDASA Centre so the one who would have come to our assistance here would not be able to come before 1 o'clock, so are you happy with the arrangement?

MR MAKHURA: Yes for saving time I felt that I can go in on that to save time.

CHAIRPERSON: Yes and you will indicate if there is any difficulty?

MR MAKHURA: Yes Sir, I will indicate.

CHAIRPERSON: Yes, very well. Well you've already taken the oath. Mr Berger you can proceed.

EXAMINATION BY MR BERGER: Thank you Chairperson.

Mr Makhura, you were born on the 23rd September 1959, is that correct?

MR MAKHURA: That is correct.

MR BERGER: And you were raised by a single parent, by your mother, is that right?

MR MAKHURA: That is correct.

MR BERGER: She died in 1976, am I right?

MR MAKHURA: Ja, I think it's 1976 or 1977.

MR BERGER: Now you went to school in Mamelodi and in 1980 you commenced Standard Nine, is that right?

MR MAKHURA: That is correct.

MR BERGER: But you didn't finish Matric am I right?

MR MAKHURA: That is correct.

MR BERGER: Can you tell the Committee briefly what happened, why it was that you didn't finish Matric?

MR MAKHURA: In 1980 as I was attending school, the situation in the township was bad. There was a general crime wave, I was once stabbed in 1980 whilst I was growing up so that I felt if I continued staying on at home I might end up in prison so that I was pushed to skip the country. When the Silverton siege occurred our soldiers were killed at the Volkskas Bank so that I decided that I too should contribute positively towards the liberation of our people.

MR BERGER: Mr Makhura, can I ask you to speak a little slower because the interpreters have to interpret what you are saying.

MR MAKHURA: I am saying I was motivated to skip the country after the Silverton siege. The incident at the bank, that was after I saw the incident on the media I then concluded that too have to go instead of staying on to die resulting from crime. The only decent thing I could do was to go and join the ANC and those people were regarded as heroes.

MR BERGER: When did you leave the country?

MR MAKHURA: I left after the Easter in 1980. I went through Swaziland.

MR BERGER: In Swaziland you met officials of the African National Congress and you joined the ANC, is that correct?

MR MAKHURA: That is correct.

MR BERGER: And from there you were taken to Maputo in Mozambique?

MR MAKHURA: That is correct.

MR BERGER: Now that was 1980. Can you tell the Committee very briefly what you did from 1980 until the end of 1985 when you joined the unit?

MR MAKHURA: From 1980 on arrival in Maputo we left for Angola by plane. When we arrived there we were taken to a transit camp in Hera and we were then taken to Malangi Province for our training. We underwent a military training for 8 if not 9 months. We were training at this camp called Jahanda. After finishing the military training in 1981 I joined the anti-air unit in Kampoon and trained as a medical officer at the camp actually and in 1982 and '83, I went to Tazamaya where I continued with my course in medical training. In 1994 before the end of '93 actually, I came back to Angola and I stationed at the refugee camp of Swapo on the southern part of Angola. I think I spent about two months there after which at the time we should say there was a fight between the ANC and Unita in the Eastern part of Angola. I was sent over from 1994 right up to - from late 1993 up to early 1994 during which time we withdrew back to Luanda and in 1994 I was approached by my camp commander saying that I should go for special training in Banco so that we should prepare ourselves for the establishment of a unit.

I went for assassination training and in 1995 ...(intervention)

MR BERGER: Mr Makhura, you've been talking about 1990's, I think you must go ten years back.

MR MAKHURA: I'm sorry, I'm actually talking about '80s.

In 1985, in late 1985 I left Luanda for Lusaka. In Lusaka that is where I met Jabu Masinga, Ting-Ting Masango and Neo Potsane as well as Mandla. So that we formed the unit that operated inside the country and in later 1985, it could have been November, December, we left Lusaka as the same group and we went to Botswana.

In Botswana, myself Neo Potsane, Mandla and Rufus were arrested in Botswana and we reported back to Lusaka.

MR BERGER: When you say you reported back to Lusaka isn't it correct that you actually deported?

MR MAKHURA: We actually deported, we were deported to Lusaka by the Botswana government. Arrangements were again made for us to come back to Botswana and these arrangements were made around March/April. I cannot be sure but we came through Botswana and entered South Africa. That is where we met Jabu Masina and Ting-Ting Masango.

MR BERGER: Now we're talking about March/April 1986?

MR MAKHURA: Yes that was 1986.

MR BERGER: Okay, now you've submitted an application for amnesty and you also deposed to a supplementary statement, if you would look at the bundle A in front of you? Pages 5, 6 and 7. Do you confirm that that is your signature on page 7 and that this is your statement?

MR MAKHURA: Yes that is my signature and this is my statement.

MR BERGER: Do you confirm the contents of this statement?

MR MAKHURA: Yes I concur with the contents.

MR BERGER: Now as far as the anti-tank mine in Mamelodi is concerned, that was February 1986 and the killing of Sergeant Vuma March 1986. Is it correct that you were not yet in the country at that time?

MR MAKHURA: That is correct.

MR BERGER: And then as far as the killing of Mr Lukhele is concerned, you were not involved in that operation at all, is that right?

MR MAKHURA: That is correct.

MR BERGER: So the first operation that you were involved in was the bomb which was placed in Silverton, is that correct?

MR MAKHURA: That is correct.

MR BERGER: Can you tell the Committee or can you detail for the Committee what happened in the planting of that bomb, perhaps if you can take the Committee through what happened that day?

MR MAKHURA: On that day or should I say the day before that Ting-Ting came to me and told me about the bomb that had to be planted in Silverton. We discussed this and we agreed so that we left Winterveld the following day carrying a land mine, headed for Silverton. We travelled by taxi and when we arrived there Ting-Ting showed me the place where the bomb had o be planted next to the bus shelter. Ting-Ting was armed with a pistol. It was round about 11, 12, we planted this land mine in a plastic dustbin. The blue ones, the ones that hang around poles in town. After that we took a taxi back to Winterveld.

MR BERGER: Now that dustbin that you planted the bomb in, was that the dustbin at the bus stop.

MR MAKHURA: Yes, there was a pole next to the bus stop and this dustbin was hanging against this pole.

MR BERGER: You actually placed that mine or bomb in the dustbin, is that correct?

MR MAKHURA: That is correct.

MR BERGER: Did you set the timing on that bomb as well?

MR MAKHURA: That is correct.

MR BERGER: Okay, can you explain to the Committee how you did that and when the bomb was set to go off?

MR MAKHURA: The limpet mine used lead plates and the ones that I used, the lead plates that I used, the ones that were supposed to let the bomb go off after 20 or 30 minutes.

MR BERGER: What time of the day was it when you planted the bomb?

MR MAKHURA: It could have been twelve or one, or after twelve.

MR BERGER: We know that the bomb only exploded after five o'clock that afternoon. Do you have any explanation for that?

MR MAKHURA: As to why it exploded around that time I cannot know, it could have been a technical fault but the time was synchronised to go off in twenty or thirty minutes time.

MR BERGER: So you expected the bomb to explode somewhere around between half past twelve and one o'clock?

MR MAKHURA: Thereabouts.

MR BERGER: After you planted the bomb, you and Mr Masango left the area before waiting to see if it exploded, is that right?

MR MAKHURA: Yes we left.

MR BERGER: The next incident that you were involved in was the placing of the bomb in Soshanguve, now that was - well Silverton was the 4th July and this was the 21st July 1986.

How did it come about that that operation was started?

MR MAKHURA: The main person who participated in the operation was myself because I am the one who reconnoitred the movement of the military vehicles around that area. They were moving I think between Block H and Block F in Soshanguve and one of the military vehicles used to pass there. I went to Ting-Ting and briefed him about this and on the particular day we went there during the day to show Ting-Ting the spot and get his opinion. He agreed with us and we decided that we had to confirm or should I say make sure that military vehicles were using that route. There was a house next to the heap of soil. I went to the house while Ting-Ting was waiting outside. I enquired in the house, I found a male person, I introduced myself and asked him about the movements of the military vehicles and he confirmed that they do use the road especially in the night. He asked who I was and I told him that I was a member of MK and he told me that he was working for the police and he is like working for the liquor squad and after confirming that the vehicles passed through every day I went to Ting-Ting, informed him that I found a person inside and confirmed that military vehicles used the road. We then decided that we should come that evening to plant the mine. The person did not ask me whether I wanted to plant a land mine or ambushed the military vehicles. We then went back to Winterveld.

CHAIRPERSON: Mr Makhura, just if you could slow down? So when he said to you that - or you first told him that you were a member of MK and then he told you that he was a policeman and that didn't deter you from proceeding with the operation?

MR MAKHURA: No it did not deter us.

MR BERGER: So you came back that night. Now when you came back that night, it was you with a number of people?

MR MAKHURA: That is correct. We actually took the land mine inside a cooler bag and I was in the company of Masango, Mandla as well as Mr Potsane and when we arrived near to the spot we parked the vehicle a distance from the actual spot and myself, Mandla and Potsane went to the spot and Mandla was standing guard on the other side of the road and while Mr Potsane was on the other side of the road I then planted this land mine under a heap of soil after which I then went to the same house to which I had gone to during the day ...(indistinct), I told that person that I am back but my request it would you please shift your vehicle, take it deeper into the yard so that it should not be effected. He told me that his vehicle has a mechanical problem, it's not moving. He then came out and the two of us pushed the vehicle inside the yard and that was the last time I saw this person. We then left. I called Mandla and Mr Potsane. We then went back to the car and drove back to Winterveld and that night nothing happened and nothing happened the following day either and on the third day I went to Mandla and Mr Masango to say look, it looks like we have a problem because this thing has not gone off yet, what should we do now and we discussed the fact that we have to remove it before it is discovered. We discussed this during the day and on the very same day of our discussion, I think it exploded around the afternoon and according to the news reports it's like it went off as it was detonated by a bulldozer or something but nobody got injured.

MR BERGER: The sort of mine that it was, what sort of things would be able to detonate it?

MR MAKHURA: It was an anti-tank land mine.

MR BERGER: So you're saying it would be detonated by tanks or other very heavy objects?

ADV DE JAGER: We had evidence on this before, I think yesterday also they said it could be detonated by any weight greater that 120 kilograms and I think that's also correct according to the submission by the ANC?

MR BERGER: I'll leave it at that point. You did in fact see that the man whose car you moved out of range of the bomb again when he identified you at an I.D. parade after your arrest, am I right?

MR MAKHURA: That is correct.

MR BERGER: Mr Makhura, you've heard the evidence of what happened at your trial. Do you confirm that?

MR MAKHURA: That is correct.

MR BERGER: Again I want to ask you the question, since you've been prosecuted, sentenced and released, for all of the incidents for which you seek amnesty, why is it that you are here today in seeking amnesty?

MR MAKHURA: Firstly I'd like to state to this Committee that people are surprised as to why I have come forward for amnesty because I've been sentenced. If you still remember very well during the trial witnesses came to testify, we said nothing to them. All we wanted to do was that victims should hear from us today, get to know what happened so that we should get an opportunity to reconcile with the victims and make sure that such similar things do not recur because after the people saw us at the trial this thing was over but we felt and we took it upon ourselves to come forward, apply for amnesty so that we could get an opportunity to meet these people. The situation at the trial was ...(indistinct) but today we'd like for them to get our feelings so that they can understand what situation prevailed at the time so that we ended up in loggerheads with them and we therefore wish that such similar things should not recur in our country ever.

MR BERGER: I've no further questions, thank you Chairperson.

CHAIRPERSON: Thank you Mr Berger. Mr Booysen?

MR BOOYSEN: No questions thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Booysen. Mr Rammutla?

MR RAMMUTLA: No questions to direct to the witness Mr Chairperson, thanks.

CHAIRPERSON: Thank you very much. Ms Mtanga?

MS MTANGA: No questions Chairperson, thank you.

CHAIRPERSON: Yes. Thank you very much. Have you got anything further Mr Berger?

MR BERGER: No questions Chairperson.

CHAIRPERSON: Thank you Mr Makhura, you're excused. Thank you very much.

CHAIRPERSON: Is that the applicant's case?

MR BERGER: That is the case for the applicant yes.

CHAIRPERSON: Mr Booysen, have you got any evidence that you want to lead?

MR BOOYSEN: Mr Chairperson, if you'll give me five seconds, I just want to confirm. I'll be very brief, thank you.

Chairperson, for the time there's no evidence I'd like to lead, thank you.

CHAIRPERSON: Thank you very much Mr Booysen.

Mr Rammutla have you?

MR RAMMUTLA: No evidence to lead Mr Chairperson, thanks.

CHAIRPERSON: Thank you. Ms Mtanga?

MS MTANGA: No further evidence from myself as well.

MR BERGER: Yes Mr Berger, are you ready to address us?

MR BERGER IN ARGUMENT: Mr Chairperson, I will.

Chairperson, in terms of Section 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 that there are three requirements which must be satisfied before amnesty can be granted. The first Section 21(a) speaks about whether the applications or the application complies with the requirements of the Act. I submit that the applications do so comply and that there's been no suggestion by ...(inaudible) in the applications. I would submit that Section 21(a) has been satisfied.

21(b) I will leave for the moment because that requires a little further debate and I move to 21(c) which talks about whether the applicant and in this case the applicants have made full disclosure of all relevant facts.

Chairperson and Members of the Committee, you've heard the four applicants testify. They at times went to - perhaps said more than what was necessary for them to say, they've told you everything about themselves, they've told you everything about the events, the incidents in which they were involved. There's been no suggestion by anybody, even in the cross-examination there's been no suggestion that they have held back and that they have not disclosed any relevant facts.

I submit that I don't need to say more than that and I submit that they have made a full disclosure of all relevant facts and a disclosure of perhaps some irrelevant facts as well but all of that was done in an effort to be absolutely open with this Committee. You've seen the four applicants and you've seen what kind of people they are. I submit that it's apparent from their evidence that they haven't held back at all.

Which brings me to Section 21(b) of the Act and that is that the requirement that the acts which they had committed must be acts associated with a political objective committed in the course of the conflicts of the past and in accordance with provisions of sub-sections 2 and 3. Now it's often mistaken by the general public that all you have to prove is that there was a political objective but the Act is specific in it must be a political objective which complies with sub-section 2 and sub-section 3 of the Act.

Before I go through sub-section 2 and 3 Chairperson, I'd like to read to you from the judgement of State versus Masina and others that I referred to in my opening address, 1990 Volume 4 SA709 Appellate Division. From the bottom of page 716 next to the letter I, Lordship Mr Justice Friedman said:

In this context he quoted the following words of the late Chief Albert Luthuli, the former leader of the ANC:

And that was Chief Albert Luthuli.

First Appellant added:

He went on to explain his position as follows:

The reason I read this to you Member of the Panel is because this was said in 1989, long before the TRC Act, to use a colloquialism, was drafted. At a time when they faced or three of the applicants faced the death penalty and it's ironic in fact that they should say the actions we undertook were not for private gain nor prompted by revenge, it's ironic when those are the words as you well know, used in Section 20 sub-section 3 of the Act which says that or very close to the words which says that an act associated with a political objective will not include any act committed by a person to act with (i) for personal gain, or (ii) personal malice, ill will or spite directed against the victim of the acts committed. In 1989 the applicant said "the actions which we undertook were not for private gain nor prompted by revenge, they were taken by ourselves as soldiers in the army of the African National Congress.

At the bottom of page 717, next to the letter - well between the letter G and H, his Lordship Mr Justice Friedman said:

We don't agree with this finding but this was the finding nevertheless:

A bit further down, Friedman A.J.A. says:

Subject to this rider, I agree with all the findings of the trial judge. Obviously the evidence before you is clear that the applicants were not indoctrinated and that they believed in the aims and objectives and policies of the ANC.

The subject of that, Chairperson, Members of the Committee, I submit that it's abundantly clear that the four applicants before you were dedicated and committed soldiers of uMkhonto weSizwe who believed that their actions were necessary in order to further the aims and the struggle of the African National Congress and in order to achieve liberation. The fact that they were prepared to face the death penalty must indicate, their stance during the trial, must indicate how dedicated they were to the cause that they were fighting for.

The Section 20 sub-section 2 of the Act says that an act associated with a political objective means any act - I'm leaving out words - which constitutes an offence or a delict which was committed by - and then I submit that the appropriate sections of the Act which would cover the applicants are sub-sections 22(a), 22(d) and 22(f). I submit that there can be no doubt that they were bona fide ...(intervention)

ADV DE JAGER: ...(inaudible) they meet the requirements of Section 20 and even Section 22 sub-section 3 so if you want to address us further, I don't know what the rest of the panel's opinion is on that but I don't think it's - for me it's clear they fall within the Act but I don't know what the rest of the panel's opinion is on that but I don't think it's - for me it's clear they fall within the ambit of the Act.

CHAIRPERSON: Ja well perhaps you should reserve the bulk of your submissions to hear what the other parties have to say, it might not be necessary to go into all this detail?

MR BERGER: I'll wait for a reply, thank you Chairperson.

CHAIRPERSON: I'm sorry, have you any further submissions?

MR BERGER: I thought I was leaving all my submissions for the end but perhaps I could just wrap up so that it's not left hanging in the air.

CHAIRPERSON: Yes, yes, sorry.

MR BERGER: Chairperson, I submit that it's clear that all the incidents for which the applicants have applied for amnesty fall within the ambit of Sections 22 and sub-section 3 of the Act, either there was a direct instruction to kill a particular person or there was a general instruction to kill certain people whose positions or stances or actions were considered inimical to the aims and objectives of the ANC or there was a general instruction or authorisation to do what the unit considered necessary in order the further the aims and objectives of the ANC. In that implied authority, I submit is the arming, the provision of arms of heavy calibre weapons, of land mines, of limpet mines, of hand grenades to this unit and that would cover every incident for which they have applied for amnesty.

Seeing as though there was specific questions put by our learned friends in relation to firstly the Silverton bomb, I submit that there is evidence before you in the form of - well from all the applicants but particularly the evidence of Mr Masango and the evidence of Mr Potsane about the Kabwe Conference, the decisions that were taken there, it's in Mr Chaba's editorial, Mr Chaba was the official organ of the ANC and it's clear, it's also clear that if one has a look at the cover of Exhibit B, on the left hand side it says Apartheid Attacks Soft Targets", there's Maputo on the 30th January 1981, Maseru the 9th December 1982 and Gaberone, the 14th June 1985 which was the day before the conference opened. It's clear that the message that was going out from Kabwe and which went out from Kabwe was that the line between soft and hard targets was going to disappear and Mr Masango himself being political commissar, being tasked with disseminating that information to cadres of the ANC then disseminates that same information to members of his own unit. I submit that the implied authority for the Silverton Bomb is there. Of course afterwards the fact that the unit was not disciplined, the fact that they reported the incident to the leadership indicates that if - well as Mr Masango said, if we thought we were going to be disciplined, we wouldn't have reported that incident so we believed that we had the authority. And I submit that that belief at the very least was a reasonable belief.

The fact that - there was some questioning both from my learned friend and from the Committee in relation to well, not only White people were targeted, well, not only White people could have been hit by this bomb, the uncontested evidence is that it was a White bus stop, it was targeted for it's symbolic value and that White people who used that bus stop were the targets. The fact that Black people could have been hit by the bomb was not something that deterred, as you were told, deterred the unit. I submit that that doesn't disqualify any applicant because the Act requires that the Committee look at the political objective sought to be achieved by the applicants and the political objective which they sought to be achieved was to send a message to White South Africa.

Mr Masango said that there was one person - one Black person in the vicinity of the bomb and he said to him you and your Black friend, get out of this area but obviously they could not make sure that everybody, every Black person in the area could be warned in advance.

There are decisions of the Amnesty Committee, I'm not going to go into detail but I just mention for example the Heidelberg bomb where the target was White people but where I believe it was one Indian woman, one Coloured woman killed in that blast, if my facts are correct. The St James Church, I don't know - Advocate de Jager, you were on that panel, I don't know if there were Black members in the church, I seem to remember that there might well have been Black congregants, Coloured congregants in the church when the attack took place.

ADV DE JAGER: ...(inaudible)

MR BERGER: No, none were injured but they were there and could have been injured in that attack.

So I submit that the requirements of Sections 22 and 23 of the Act are met in relation to the Silverton incident as well and as far as the Lukhele incident is concerned, their specific authority was obtained and was sought and obtained from the leadership of the ANC. Again, the fact that Mrs Glugu was caught in the crossfire, Mrs Glugu was in the same position as for example a Black person who could have been caught by the Silverton bomb. Mr Potsane explained that his mission was to kill Mr Lukhele. Mrs Glugu was right next to Mr Lukhele when he opened fire and she was killed in the rain of bullets. The judge accepted that Mr Potsane had no direct intention to kill Mrs Glugu but that there was indirect intention, dolus eventualis in relation to her death.

Again I submit that the Committee must look at the political objective sought to be achieved which was the killing of Mr Lukhele. If and I submit the facts speak for themselves, if it had been the intention of Mr Potsane to kill everyone in the room, Mrs Lukhele would not be sitting here today.

Chairperson, I'm in the position it seems like Mr Koopedi has decided he's not coming back to this hearing and there's Mr Simelane who is applying for amnesty in relation to the killing of Mr Chapie, I don't know if it's my job to make any submissions on his behalf but perhaps as an amicus I can simply say that he too would qualify for amnesty for the giving of the order, in fact his evidence was and it wasn't disputed that the order came from higher up and it was passed through him to Mr Masina. I submit that he would qualify for amnesty.

Chairperson, I do not have any further submissions to make at this stage and I'll wait to see if there's anything for reply. Thank you very much.

CHAIRPERSON: Yes, thank you Mr Berger.

Mr Booysen, have you got any submissions?

MR BOOYSEN IN ARGUMENT: Yes, thank you Mr Chairperson.

Mr Chairman, I'm appearing for certain victims, I will quickly name them:

Gloria Rosaline Randals, Nelia Terblanche, ...(intervention)

ADV DE JAGER: Have you got a list of them perhaps with addresses?

MR BOOYSEN: I don't have addresses now but I can furnish the Committee with the addresses at a later stage.

The other one is Nelia Spyt and then there is Mrs A E Williams and Mrs G B Williams, Mrs Trollip and Mrs Voysa, that is the victims I'm appearing for.

My instructions were from the word start that they are willing to forgive, they came to this Committee to listen to the applicants' story to why certain deeds were done. I was also instructed during the course of this Committee that they came to a certain understanding or that the deeds that were done felt very wrong to them, they do have an understanding now why it happened. They have a big fear that something like that will happen ever again. When the applicants gave evidence, the names of the victims, it wasn't really touched if it was Whites or Coloureds or Black and that's why the questions were asked. I think it was more human questions, didn't you think about them? Surely it could have been more appropriate for the ANC to get another target to kill say two White people according to their policy and non-coloureds or Black people. The question wasn't asked to oppose this application, it was only asked on behalf of the victims, they wanted to know "why us?". It's very simple, but it comes down to "why us?"

I've read the Act, I think they complied with all the regulations of the Act and we have no objection against the granting of amnesty for all four applicants. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Booysen.

Mr Rammutla, have you got any submissions?

MR RAMUTTLA IN ARGUMENT: Definitely, Mr Chairperson, I've got submissions even though much more short and brief.

Mr Chairperson, on behalf of the Glugu family, on behalf of the surviving Mrs Lukhele and other members of Mrs Lukhele's family. Mrs Lukhele, what she is saying that her husband was murdered. It has been accepted that he has been murdered by the cadres who were executing the orders of their command but she is saying to the community at large, those who are here and those who will be hearing of this matter that it is regrettable that her husband died, died as a result of politics. Politics belonged to the - or perhaps relating to the Kangwane government and the ANC and South Africa at large. She is further saying that it must be born in mind even though she is not opposing, she is officially not opposing the amnesty application brought by the applicants all of them, that her husband must not be taken to be the person who wanted to destroy the Swazi community in particular instead as the person who was driven by the goals of achieving the good standing of the Swazi community and the community must know and take it and accept it as a fact that some of the or perhaps part of the Swazi community where at it is today, it is because of Mr Lukhele's contributions and tireless hard working. I have personally went through the Act briefly going to the background of the application brought by the applicants. I duly submit that the applicants do comply with all the requirements as stipulated for them to obtain amnesty for the acts they have committed and I therefore submit that they, the Committee consider their application to be in order and be granted amnesty. Thanks Mr Chairperson.

CHAIRPERSON: Thanks Mr Rammutla.

Ms Mtanga, have you got any submissions?

MS MTANGA IN ARGUMENT: Yes Chairperson, I'll be brief.

It is my submission as well that the applicants' amnesty applications have complied with the requirements of the Act and I'm therefore not opposing their application.

CHAIRPERSON: Yes, thank you Ms Mtanga. Have you got any further submissions Mr Berger?

MR BERGER: Just to ask the Committee to grant the four applicants amnesty for the acts for which they seek amnesty. Nothing further thank you.

CHAIRPERSON: Yes, we've come to the end of these particular applications. The panel will formulate a decision and will release it to all of the interested parties as soon as possible. We have some further matters that require our attention so we are not in a position to finalise this matter immediately. We will in the circumstances reserve the decision and through our offices notify the parties when the decision is available.

It only remains for us the thank the legal representatives, Mr Berger, Mr Booysen, Mr Rammutla and Ms Mtanga and your clients for the assistance that you've given us in this particular matter.

MR BERGER: Thank you very much.

CHAIRPERSON: We'll excuse you gentlemen and yes, possibly we could get to the other matter and hear some of it before we adjourn for lunch. Would it be possible or do you want us to stand down for a few moments to rearrange the situation or what?

MS MTANGA: Yes Chairperson, we need about five minutes.

CHAIRPERSON: Very well gentlemen, we will excuse you and your clients as well. Thank you for attending and we deal with the next matter when they are ready.

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CHAIRPERSON: We are now continuing the applications of Mr Maesela and Mr Tekane.

Mr Maesela, I remind you that you are still under oath to tell the truth, do you understand?

MR MAESELA: (s.u.o.)

CHAIRPERSON: Thank you. Mr Richard, any further questions?

MR RICHARD: Yes Chairperson. Before I commence, I might report that I have located ten boxes of the record in the State Archives. Unfortunately in Johannesburg in their repository there, to get the records here this morning would require a subpoena from the Commission itself because States Archives, being what they are, they are not willing to hand them simply to me on my say so.

The record is as I've indicated very lengthy and in fact there are more than one trial involved and I simply place on record that the records are available contrary to other indications. Subject to that, I proceed.

CHAIRPERSON: Yes, thank you Mr Richard, we've noted that.

CROSS-EXAMINATION BY MR RICHARD: It does handicap my cross-examination, but we will proceed.

Mr Maesela, from your evidence yesterday it appears that you were an ANC member and a member of the MK structures, is that correct?

MR MAESELA: I was member of the ANC under the structures of the SDUs.

MR RICHARD: Now would you please outline to us what other activities did you indulge in on behalf of the ANC besides the SDU activity?

MR MAESELA: Besides the activities of the SDU there was nothing in particular that I was involved in on behalf of the ANC.

MR RICHARD: So would it not be correct to assume that you were in contact with various ANC leaders, activists, politicians? 1993 was a time of intense political activity, it was a lead up to what happened in 1994?

MR MAESELA: I don't understand when you say in contact?

MR RICHARD: There was communication between you and other members of the ANC in Rockville where you lived?

MR MAESELA: At the time of the ANC then save to say maybe on social occasions, yes there was contact.

MR RICHARD: Now it's also common cause ex your own evidence that you're an educated person and I would assume that you read the newspapers and were fully aware of what was going on in Soweto, Rockville, at the time?

MR MAESELA: Yes Sir.

MR RICHARD: Now yesterday I questioned you on what you saw as a legitimate target. Now would you say an attack on the police was part and parcel of the armed struggle?

MR MAESELA: Yes it was.

MR RICHARD: Now are you aware that as at February 1993 the armed struggle had been suspended.

MR MAESELA: The armed struggle was suspended in 1990 but because of the events preceding the suspension of the armed struggle, it became imperative upon the African National Congress to do something in respect to the protection of innocent people who were being killed by the State apparatus.

MR RICHARD: Now you say it became imperative that the ANC did something. Who communicated that to you?

MR MAESELA: It was not communicated to me directly but it was a collective decision taken by the leadership of the African National Congress to use those who were more experienced in the MK to train members of the community.

MR RICHARD: What collective decision, who was part of that?

MR MAESELA: The leadership, members of the ANC.

MR RICHARD: Now you say you were aware of this, how was this communicated to you?

MR MAESELA: To different structures of the MK down the line, their were links. As I said Molefeng Msini was the one who recruited me into these structures and introduced me to Mr Ephrahim Opanari who was among those who were the leaders in the MK.

MR RICHARD: Now that was in 1991 two years before the incident under discussion?

MR MAESELA: Yes, yes Sir.

MR RICHARD: Now, as you might well concede, you are aware that between 1991 and 1993 the late Chris Hani made various decisions about the armed struggle and together with his leadership group. Yes or no?

MR MAESELA: Mr Richard, can you please clarify as to namely what kind of decisions were made?

MR RICHARD: During 1990 as you've said the armed struggle was suspended, is that correct??

MR MAESELA: Yes.

MR RICHARD: My next question is, are you aware of any statements by Chris Hani post 1991?

MR MAESELA: As we all know that Mr Chris Hani, the late Comrade Commander Chris Hani, was very shall I use the word militant person and he was directly involved in the setting up or rather the formation of SDUs.

MR RICHARD: And what was his attitude post 1991 to the armed struggle.

ADV GCABASHE: Mr Richard, can you just assist me here? Are you challenging the establishment of the SDU movement by the ANC leadership? Just help me here? Or are you asking this particular applicant where he fitted into the whole structure? I'm not too sure as to what exactly you are asking here, it would help if I understood what you're asking.

MR RICHARD: Chairperson, what I seek to establish is that as at February 1993, this particular applicant knew or ought to by all reasonable evidence have known that attacks on the police at that stage were not part of the armed struggle.

ADV GCABASHE: But they were part of what the SDUs did in the various parts of the country? You need to just clarify where exactly?

MR RICHARD: I'm not challenging, I'm not disputing that attacks were, on the police, were part of the SDUs activities, that's I think a matter that's been canvassed in many other hearings.

ADV GCABASHE: Precisely and he was a member of the local SDU in Rockville.

MR RICHARD: But what I am questioning him on is whether as at February 1993 wasn't it appropriate and hadn't it been decided that attacks on police should stop?

ADV GCABASHE: His knowledge of that proposition?

MR RICHARD: Correct, Chairperson.

MR SHAI: And if you can give clarification on the issue of the armed struggle and the SDUs, it's just if Mr Richard is actually pointing questions based on the armed struggle which was suspended in 1990. He himself doesn't actually know at what stage the SDUs started operating and he is now confusing the applicant when he keeps on referring to the armed struggle whereas he is actually referring to the formation of the SDUs. He should be actually giving some sense of clarity on the issue of the armed struggle and the SDUs when posing questions to the applicant to actually avoid the confusion.

CHAIRPERSON: Yes, you'll bear that in mind Mr Richard?

MR RICHARD: Chairperson, I would like to reply to what my learned colleague has now argued. My knowledge or absence of knowledge is not what is in issue. The onus and duty is on the applicant to discharge what rests on him in terms of the acts in terms of which he applies for amnesty, not on me to assist him. It is therefore for the witness to answer the questions, not for me to provide him information.

CHAIRPERSON: Yes, no, no, that is so. I'm just saying that in asking the questions which you're entitled to ask, you know, bear in mind the distinction between the armed struggle of uMkhonto weSizwe and the ANC on the one side and the internal situation which has developed around the self defence units which is common cause I'm quite sure or is largely formed by the ANC although to an extent it was also a community initiative. So you'll divorce your - you'll make sure that you divorce those two issues in your questioning?

MR RICHARD: Chairperson, I am aware that despite the fact that he says he was an MK operative, he was a member of the local domestic SDUs. There is a distinction between the two and to take his statement that he was an MK operative too would be inappropriate.

To go to the next point, as at February 1993, you were aware that the armed struggle had been suspended?

MR MAESELA: Yes I was aware.

MR RICHARD: Now within the context of the SDUs, to go to my next point, to whom did you report your operations?

MR MAESELA: When it comes to reporting as I've submitted before this Committee that after the death of the late Comrade Molefeng Msini, then Thabiso Tegani took over so as to who he reported to that I've got no knowledge of.

MR RICHARD: And you were content simply to rely on Thabiso Tegani's own words as to what you should or shouldn't do?

MR MAESELA: As a soldier I do not question. The situation at that time was volatile so it was not important for me to question as to who he was reporting to. Now I'm taking care of the very situation that we found ourselves in. What was important was to carry the objectives of the SDUs at that time and as I said, most of the time we took initiative. Instructions were ordered, were given that members of the SAP should be disarmed and the discretion as to who particularly to disarm was solely left upon us so it means we took an initiative the situation dictated.

MR RICHARD: So in 1991 you received an instruction to disarm police and in 1993 despite hearing that the armed struggle had been suspended, you continued disarming police?

MR MAESELA: The struggle was abandoned in 1990, Sir, and as I said because of the preceding situation in after 1990 that led to the formation of the SDUs. Like I said, the situation was dictated by the State through it's security apparatus. Now I do not remember at any time in 1993 whereby the leadership said SDUs should be disbanded particularly SDUs should be disbanded.

MR MAESELA: No one has suggested that there was every an instruction that SDUs be disbanded. It was simply a question of attacks with the potentially lethal consequence against policemen? Now on this particular occasion, who gave you a direction that this particular policeman should be disarmed?

MR MAESELA: Like I said we reconnoitred the movements of the late policeman and we discussed among ourselves and the we came to a collective decision to say this is a legitimate target.

MR RICHARD: So there was a collective decision within your unit to attack this policeman, there was no direction on this occasion from anyone else beyond the general?

MR MAESELA: Like I said it was a collective decision.

MR RICHARD: Now do you know of any of the people within the ANC that Thabiso Tegani was in communication with at that time?

MR MAESELA: Like I said, Sir, when it came to reporting, Thabiso would see to it that he took - he did that and how about, as to how he went about doing that I don't know.

MR RICHARD: You didn't answer my question, my question was very simply and I'll expand on it. How well did you know Thabiso Tegani?

MR MAESELA: I know him very well, I grew up in the same township.

MR RICHARD: And how often a week did you see him?

MR MAESELA: Most of the time we were together.

MR RICHARD: Now during that time together would you have become aware of who were ANC members with who he spoke?

MR MAESELA: I was not aware.

MR RICHARD: Strange. Were you aware of who else he saw besides who else came and visited?

MR MAESELA: Mr Richard, I'll repeat myself to say that there were times when we would take care of other social matters and logically it would mean that it was at that time Thabiso would report as to what was happening around. I was not there.

MR RICHARD: So to continue, to return to the February incident, now unfortunately I don't have a transcript but I do have a copy of a statement by Anna Sitegi in which she says on the morning of the 5th February that year, Mr Sitegi, the deceased, woke up at about 4 o'clock and left for work at 4.30 and returned at 5 p.m. Do you dispute her statement?

MR MAESELA: On the morning of?

MR RICHARD: The 5th February, the date of the incident. She says, to repeat, that on that date he got up at 4 a.m. and prepared himself for work and left at 4.30. He left for Moroko Police Station to collect the SAP truck, usually parked at the police station. Do you dispute that?

MR MAESELA: I will dispute that, Sir, because by the time we came to Mr Sitegi's house the truck was inside the yard. As to maybe he went to fetch it out or no, but by the time we came back.

MR RICHARD: And in one of the statements when you got there you found the truck, to use the words of this document, "idling" in the yard?

MR MAESELA: Yes.

MR RICHARD: So that means you don't know how the truck got there?

MR MAESELA: I don't know when it got there but when we got there it was already there.

MR RICHARD: And then Mrs Sitegi continues and says at about 5 p.m. which is the time given, she heard a gunshots, the singular and plural mixed up, outside and that was

Do you dispute what she says there?

MR MAESELA: I cannot dispute what she says.

MR RICHARD: That is from a statement, for the sake of the record, given on the 5th February 1993 at 8.20 a.m.

Now I only have one copy, I won't be referring to it further, I can hand it up.

CHAIRPERSON: We just want to give it a number. Is this the first exhibit?

MR RICHARD: It's the first I've referred to, it's exhibit -according to it, it's got a 2 on it but I'm changing it to A1 - to 1 and I refer to paragraphs 3 and 4 of it.

Now before going on to the Bakery delivery van you are aware of who ...(intervention)

ADV DE JAGER: ...(inaudible) we've got a lot of statements here, Ms Mtanga. This particular one he's quoting from, have we got a copy of that one in our possession too?

MS MTANGA: Yes Chairperson we do, it's the statement of Anna Sitegi, it's hand-written.

MR RICHARD: It's a document which starts "Moroko CAS980203, Anna Sitegi I.D. No. 1442" and then it starts "I am an adult Black female".

Now for the sake of the record the next statement I'm going to refer to is that of Cedric Sesau Moketse Hlongwane and it's a statement given by him to the South African Police on the 6th February 1993 at Benoni. It's a typed written statement and there I ask the witness to start with, do you know the deponent to this - the signatory to this statement, Mr Hlongwane?

MR MAESELA: Yes I do.

MR RICHARD: Now where I find it interesting is if one goes to page A10 of the statement, at the top of the page Mr Hlongwane says in Afrikaans:

INTERPRETER: The police drove past us.

MR RICHARD: Sorry, I heard a comment?

INTERPRETER: I was just interpreting into English, the Afrikaans version of it.

MR RICHARD: I'll translate, the statement says: While we were walking a yellow police truck drove past us. Nathaniel then said to Tibetso and Mokgatle they must take the police in.

Now what's relevant about that particular quote from that statement, that morning did a yellow police truck ever drive past you before the shooting at Mr Sitegi's address?

MR MAESELA: No.

MR RICHARD: Now Tibetso, what is his other name?

MR MAESELA: Sidiso Hlongwane.

MR RICHARD: Sidiso Hlongwane? Tibetso?

MR MAESELA: You mean Thabiso.

MR RICHARD: No, I'm saying this statement Mr Hlongwane says Nathaniel then said to Tibetso and Mokgatle - now who is Tibetso?

MR MAESELA: Thabiso is ...(intervention)

MR RICHARD: It is Thabiso and who is Mokgatle?

MR MAESELA: Mogam Mokgatle.

MR RICHARD: Now in this statement other people are mentioned. Nathaniel, is his other name Net?

MR MAESELA: Yes.

MR RICHARD: And we now establish that Thabiso is Thabo and the fourth one is you. Now Frank - right now ...(intervention)

MR SHAI: Objection, he says Thabiso is Thabo and according to our instructions the earlier evidence was Thabiso is Thabiso, Thabo is Thabo.

MR RICHARD: Thabiso is the same Thabitso?

MR MAESELA: It was misspelt, it's Thabiso.

MR RICHARD: Now from your evidence yesterday you stated that Thabiso was the one who was on the other side of the wall when a shot was fired?

MR MAESELA: Nathaniel, I was with Thabiso - when I say we split into two groups, I meant I was with Thabiso and Nathaniel was with Sediso and Frank.

MR RICHARD: Now who was on the other side of the wall who you couldn't see when a shot went off near the truck?

MR MAESELA: Oh, now you're talking the incident at Mr Sitegi's house?

MR RICHARD: Yes.

MR MAESELA: Oh, Thabiso went first.

MR RICHARD: So I also have a statement from Mr - that's Thabiso Tekane where, before making the statement to the South African Police, he said in Afrikaans and I'll translate it:

In answer to the question:

He said that:

Isn't it correct that all of you at the time of making the statements to the police in 1993 hoped to get amnesty?

MR MAESELA: Thabiso was only arrested 1995 if I'm not mistaken, long after I was in prison.

MR RICHARD: In fact this statement is made on the 13th March 1997?

MR MAESELA: Yes, he was only arrested '95/'96. I think he can verify it.

MR RICHARD: So the point I'm coming to is that when Thabiso made this statement, if everything he said was true and he was acting with a political motive and in compliance of the Act, he had nothing to really fear, so he would be telling the truth, is it not correct?

MR MAESELA: He was in the hands of the police at that time and as far as I know Thabiso and Nathaniel were the most wanted members of this unit by the police and so anything could have happened, intimidations, anything could have happened when he made this statement.

MR RICHARD: But is it not correct and I don't believe there could be any dispute about it that as at March 1997, the Truth Commission process had commenced?

MR MAESELA: Yes it had.

MR RICHARD: And when Thabiso made this statement, if everything he said in it was true and correct and complied with the Act, he had nothing to fear, he would tell the truth?

MR MAESELA: I don't think the statement made by Thabiso was.

MR RICHARD: So that means you wouldn't accept what Thabiso said in this statement as necessarily the truth?

MR MAESELA: I would say so.

MR RICHARD: Now the next question I ask is the second applicant, Mashene Eric N Tekane, of those various names that I've read out, which name corresponds to him? It's not Thabiso, it's not Nathaniel, it's not yours, it's not Frank?

MR MAESELA: What are the names?

MR RICHARD: In Mr Hlongwane's statement he says on the 5th February 1993 his friend, Frank Tekane came to his house in Rockville and asked him to come to the Alcove Stadium in Soweto. When he came out there was Frank and three of his brothers, Thabiso, Nathaniel and what we now establish to be you? Now who is Mashene?

MR MAESELA: That's Nathaniel, that's his Sotho name, Mashene is his Sotho name.

MR RICHARD: So may I ask in what respects did your evidence of the incident in court differ because I do not have a copy of your evidence from what you say in this particular amnesty application?

MR MAESELA: Like I said, the statement that I made that that confession was made under duress so whatever is contained in that confession was made unwillingly even though I did concede to the murder of Mr Sitegi but the context of that confession in itself was made under duress.

MR RICHARD: My question is what was your defence in the high court?

MR MAESELA: Was my defence?

MR RICHARD: Yes.

MR MAESELA: My defence was that I was not there when the incident happened.

MR RICHARD: My next question is, compared to the confession you made to what you say today what differences are there?

MR MAESELA: The difference is that today I'm making a full disclosure of all the relevant facts surrounding this case and on my confession there well I did not make a full disclosure because of the situation at the time, I was under the - there were the police, the very people that we were fighting against.

MR RICHARD: Now before going on to the bakery van, I remind you that yesterday that you said that you had a desire not to kill the policeman, is that correct?

MR MAESELA: It is so.

MR RICHARD: Now if you had not wanted to kill the policeman what could you have done to prevent him being shot?

MR MAESELA: I've explained on Monday that the objective was to disarm the deceased and that our plan was to point firearms and then disarm him of his office service pistol but what happened there at the scene of that incident let to an accident being committed.

MR RICHARD: Did the deceased ever shoot at you?

MR MAESELA: I found out later that the person who shot was Thabiso but from what was happening at the scene of this incident as I've explained before this Honourable Committee is that after that shot went off I was unsure as to who between Thabiso and the deceased fired the shot and I explained again that my actions were out of compulsion. After seeing the truck driving past and I couldn't see Thabiso anywhere around, what came to my mind was that he might have been shot and like I said we never had a plan B as to if ever this plan A failed then what are we going to do? Confusion was reigning amongst us so we acted compulsively.

MR RICHARD: I understand what you say happened on that morning but my question is, is it not so that no one of you had any need to take a firearm and to fire it, you could have simply let the truck drive away?

MR MAESELA: A shot was fired, a shot that caused confusion and I could not see around that wall as to what was happening around that wall.

MR RICHARD: Sir, I'm going to leave it after this proposition. My proposition is that in reality while it is true that you could not see what Thabiso was doing on the other side of the wall, taking the totality of the circumstances prevailing that morning, there was no need for anyone ever to pull a trigger if you had not intended to kill the policeman?

MR MAESELA: If we are on a mission to a disarm a firearm and it so happens that member of the SAP pulls a firearm with the intention of shooting at us at that stage now we are left with no option.

MR RICHARD: However, there is no evidence ex what you saw that the deceased ever pulled out a firearm?

MR MAESELA: A shot was fired, I'll explain again. After that shot was fired because we could not see as to what was happening around that wall we did not know, personally I did not know as to who fired that shot. It might have been the deceased, it might have been Thabiso but I was not sure, I could not see. Immediately after that shot was fired the truck pulled away.

MR RICHARD: Let's proceed onto the incident outside the Terminus Cafe. Now you were present at your trial and none of us were there. You heard Bheki Mabusa, the driver of the truck give evidence, did you not?

MR MAESELA: Yes in court I did.

MR RICHARD: Did you dispute any of his evidence in reality?

MR MAESELA: Coming to that incident Mr Davids, it is not contained and in my confession and as to - in fact I never disputed it because I was not brought into the box to dispute anything that they said. I was never identified as one of the people.

MR RICHARD: My question is far simpler than that. Were you in court when Mr Bheki Mabusa gave evidence?

MR MAESELA: Yes I was in court.

MR RICHARD: Did you disagree with anything he said?

MR MAESELA: I could not bring myself to disagree because they had never pointed me out in the I.D. parade.

MR RICHARD: I put it to you that Mr Mabusa said quite honestly in his statement to the police it was dark, he couldn't see you and didn't attempt to identify you. He described what happened. My question is do you dispute his description ...(intervention)

MR SHAI: Objection. I think this line of questioning is actually totally irrelevant. First of all he says to Mr Richard because he was not implicated by the evidence of whoever gave evidence as far as the delivery van is concerned, that piece of evidence was not contested. So contesting the evidence would have actually led to the implication of the applicant himself. So as to why learned colleague is asking why he never contested that piece of evidence, I don't think it's relevant looked at, at the time of the trial itself, with due respect.

ADV DE JAGER: You've got the statement of Mr Bheki Mabusa? I can't see whether it's Mabusa. I think he's got it in his possession. Wouldn't it be more appropriate to ask him whether he is disputing anything in the statement?

INTERPRETER: The speaker's mike is off.

ADV DE JAGER: ...(inaudible) have disputed anything, he would immediately destroy his alibi?

MR RICHARD: My question is being misunderstood, forgive me Chairperson. I'm not asking what cross-examination his counsel put the driver of the truck through, my question is far simpler. Did he hear the evidence and when Mr Mabusa described his side of the incident, does he or does he not agree with Mr Mabusa's description. I'm not asking him about the cross-examination and the versions that were put to Mr Mabusa if any.

CHAIRPERSON: Yes Mr Maesela, can you still remember everything that this driver said?

MR MAESELA: Yes it was five, six years back, Honourable Chairman and I cannot recall as to everything that was said in court.

CHAIRPERSON: Can you know at this stage tell us whether you agree or disagree to his testimony or not or have you forgotten what it was all about? I'm talking about his evidence in court, we don't know what he said but ...(intervention)

MR MAESELA: As to whether I agreed?

CHAIRPERSON: Can you tell us that at all at this stage?

MR MAESELA: Mr Chairman, I don't know what to say because ...(intervention)

CHAIRPERSON: Well is your answer that you simply can't remember what he said?

MR MAESELA: Coming to Mr Mabusa's statement, nothing was put to me in court if I still remember.

CHAIRPERSON: Yes, no don't worry about the statement, I'm not sure to what extent the statement is going to feature in this thing now but the question at the moment relates to what he said in court, what this driver said in court, Mr Mabusa. Now you say you can't really remember what he said?

MR MAESELA: I can't remember what he said Honourable Chair.

CHAIRPERSON: So you can't say whether you agree of disagree with it?

MR MAESELA: For now I cannot say Honourable Chair.

CHAIRPERSON: Alright. Yes Mr Richard?

MR RICHARD: Now I continue. If the general description of what happened to the five people in the bread delivery truck went along these lines and I'm not going to label the four points. They were stopped outside the terminus cafe, the unloading of the bread commenced and a shot was fired at them. Do you dispute that?

MR MAESELA: I've explained before this Honourable Committee that we split into - immediately after we heard the sound of the truck we split into two groups and I was with Thabiso at that time so what happened there was that immediately after we saw the truck and we identified it as a bakery truck and then immediately we abandoned the position so as we were going away a shot was fired and we reacted. By the time we reacted that was when Nathaniel and the two other guys came running to us and explained as to what happened there.

MR RICHARD: Now who fired the shot, was it the people in the truck or one of your group?

MR MAESELA: According to my understanding the security of that truck fired a shot first then and then Nathaniel replied back.

MR RICHARD: That is incorrect. In all the statements before me, a shot was fired at them and then a fire fight started during the course of which according to the various statements a number of shots were fired. The truck was damaged.

MR MAESELA: I cannot say as to what happened, I was not there. So as to who shot first I don't know.

MR RICHARD: Now why if the shot was first from you, was the shot ever shot at the truck because the truck was not a target, the police were a target?

ADV GCABASHE: Mr Richard, are you sure you want to reserve that question for Natu who is an applicant, he is the one who knows about that incident. He simply reported to this applicant on what did occur and I don't think this applicant is in a position to assist you.

MR RICHARD: Very well, without the record it's very difficult for me to take it anywhere further except to ask the questions I have.

Now in relation to Oupa Meremi, is he going to give evidence or not, have you called him?

MR MAESELA: Actually there was a time when I had a meeting with Mr Maraleng and he is aware of this hearing.

MR RICHARD: It's not for me to build your case for you, my question is do you intend to call him as a witness to support your statements?

MR MAESELA: Personally, I don't intend calling him.

MR RICHARD: Why not?

MR MAESELA: I don't see what purpose would it serve to call Mr Maraleng because by mentioning his name in this hearing, I don't think - it's not a lie what I've said about Mr Maraleng.

MR RICHARD: All we have is your own word for it but it would be very easy for somebody to say so and so told me this. If you have a witness available to you to corroborate your version surely its incumbent on you to prove your case?

In due course I'll argue that the fact that he is not called by you means that you're lying?

MR SHAI: Objection. May I just put it across that we actually discuss the said issue around Mr Maraleng with my learned colleague and the evidence leader and we actually tried to contact Mr Oupa Maraleng and to actually get hold of him which is as difficult as actually finding a needle in some hay and she actually indicated to us that she may try and is it Brian Koopedi, to actually contact this Oupa Maraleng because he knows how to actually get hold of him. Not that it's an issue that we never pursued. That was pursued but it is actually difficult to get hold of these people.

CHAIRPERSON: Yes we've noticed that, any case you have indicated to the witness what argument you would be raising. Yes proceed?

MR RICHARD: I have given the witness an opportunity to be aware of what will be said later. No further questions.

CHAIRPERSON: Thank you. Ms Mtanga, have you got any questions?

CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, thank you.

MS MTANGA: Yes Chairperson, thank you.

Mr Maesela, on page 204 of the bundle, paragraph 5.8.

MR MAESELA: Paragraph?

MS MTANGA: 5.8, the last paragraph.

MR MAESELA: 5.8, yes.

MS MTANGA: Okay, you indicated that you were trained by Oupa Maraleng and that he further gave you instructions to disarm police. When was this?

MR MAESELA: I was in 1991.

MS MTANGA: And where did the training take place?

MR MAESELA: It took place at the back rooms of the late Molefeng Msing's parent's home.

MS MTANGA: Where is that?

MR MAESELA: It's in Rockville.

MS MTANGA: And further on, page 15, paragraph 7.4, you stated that the attacks from the hostel dwellers ...(indistinct) that the police became less frequent and therefore such decrease prompted a switch over to other objectives of the SDUs, these the disarming of the police. What I would like to know from you, what purpose would be served by the disarming of the police in the light of what you've said there that the attacks on the hostels had decreased?

MR MAESELA: As we shall recall the situation at the time was such that like I've stated 7.5, in context that the degrees of attacks from hostel dwellers did not really reduce the level of violence. Rather the matter of third force operation became more sophisticated and notifiably more mobile so these very operations by third force were assisted by members of the police in that at times whereby there were drive by shootings in the locations from these unseen forces, the police would overlook these actions but at a time when we took action against the police then the police would definitely take action against us so in this instance it was indisputable that the police themselves were part and parcel of this whole violence rather than being the custodians of peace they were the enemies of peace themselves.

MS MTANGA: What I want to know is by taking their weapons or firearms what were you going to achieve by doing that?

MR MAESELA: Like I've stated that by disarming the police of their weapons it would demoralise them in the long run and at the same time these weapons would be brought in and given to some of the trainees so as the enhance the protection of the masses from the very attacks by these forces.

MS MTANGA: No further questions Chairperson.

ADV DE JAGER: I can follow your motivation for the robbery. You wanted to get a firearm and you wanted to use that for self defence or whatever. You're applying for amnesty for murder?

MR MAESELA: Yes Sir.

ADV DE JAGER: And robbery is that correct?

MR MAESELA: Yes, the attempted ...(intervention)

ADV DE JAGER: The attempted robbery, sorry.

MR MAESELA: And as well as for the possession of the firearm and ammunition.

ADV DE JAGER: Yes. What's a problem for me is you told us there was no motive to murder?

MR MAESELA: Yes Sir.

ADV DE JAGER: Now if there was no motive to murder, how could there be a political objective for the murder?

MR MAESELA: The Honourable Mr Chair, I've tried to explain the events that led to the murder of Mr Sitegi and in the first place we identified him as a legitimate target as he was a member of the SAP and then during the course of this incident, shots were fired and that led to the loss of life, thus murder was committed. It was not our intention to murder - that is this Mr Sitegi.

ADV DE JAGER: Ja, okay I've got your answer. Perhaps your counsel could also assist me in solving this problem. The bakery van, were there any security guards there with the bakery van?

MR MAESELA: Normally there are security guards who ...

ADV DE JAGER: They're carrying weapons too?

MR MAESELA: Normally they do, yes.

ADV DE JAGER: And you needed weapons for self-protection?

MR MAESELA: Yes we needed weapons but not from ......(intervention)

ADV DE JAGER: Why not?

MR MAESELA: I should think normally people who are called in to guard these bakeries from private security companies so in a sense they are not legitimate members of the State but they are just security personnel of a private company.

ADV DE JAGER: Ja, but you're not targeting them as such in the sense of that you want to kill them, you only want weapons and wasn't the idea to get weapons wherever you can?

MR MAESELA: No, specifically from the security apparatus of the State.

ADV DE JAGER: Oh, so it wasn't your objective to get weapons from people not in the employ of the State in the sense of the security forces, other people from the security forces?

MR MAESELA: No Sir, not members of - not any civilians but specifically members of the State because the primary objective was to destroy the apartheid State and it's security apparatus.

ADV DE JAGER: Ja but in this attempted robbery, the objective was to protect your own people against attacks and that was why you need the weapons?

MR MAESELA: Yes Sir.

ADV DE JAGER: If it wasn't for that you wouldn't have robbed this policeman?

MR MAESELA: If it wasn't for that - in fact the Honourable Chairperson, I cannot understand clearly?

ADV DE JAGER: Suppose he didn't have a weapon at all, this policeman, you walked there and you could see he didn't have a weapon on him?

MR MAESELA: Yes then we wouldn't have attacked him.

ADV DE JAGER: Then you wouldn't have attacked?

MR MAESELA: That is correct.

ADV DE JAGER: Because your objective was to get a weapon not to do anything to the policeman?

MR MAESELA: Yes that's true, Sir.

CHAIRPERSON: Re-examination Mr Shai?

RE-EXAMINATION BY MR SHAI: Your main objective in actually attacking the policeman, was it to take the firearm away from him, you know that it - or let me just put it in this way, was it to disarm him or was it to arm your fellow ...(indistinct). What was the main objective?

MR MAESELA: The objective was two fold and that it was to disarm to take away to disarm the weapons from the deceased as well as to arm other members of the SDU's with this particular weapon.

MR SHAI: The question of the confessions that you also made to the police, under what name was this confession taken from you?

MR MAESELA: I was coerced into signing my name as M Tekane even if the police had a copy of my I.D. with them they still maintained that I was telling lies and so they made me sign M Tekane on that confession.

MR SHAI: What would have been the consequences of you telling the police that you were actually a member of the ANC and you were actually acting under the instructions from the ANC leadership?

MR MAESELA: The consequences would be that such that I would even be killed by the very police because these were the people that we were fighting against and they knew very well that people like us were viewed before their eyes as enemies so the consequences would lead maybe even to death.

MR SHAI: No further questions.

ADV GCABASHE: Mr Maesela, so you're saying that you are not related to the Tekane's at all?

MR MAESELA: No I am not related at all.

CHAIRPERSON: Yes thank you Mr Maesela, you're excused.

CHAIRPERSON: We'll take the adjournment for 30 minutes.

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NATHANIEL ERIC MASHENE TEKANE: (sworn states)

CHAIRPERSON: Mr Shai, over to you.

EXAMINATION BY MR SHAI: Thanks Mr Chair.

Mr Tekane, just for the record, where were you born and when?

MR TEKANE: I was born in 1958 and I was born at Orlando East.

MR SHAI: Your level of education?

MR TEKANE: I passed to Matric and I went to the Technikon to study further in mechanics.

MR TEKANE: Where did you go for your tertiary education?

MR TEKANE: I started at L.T.I. Technikon in Lesotho, Maseru.

MR SHAI: Now you're making an application for amnesty for terrorism, murder, possession of ammunition and arms as well as car theft, correct?

MR TEKANE: That is correct.

MR SHAI: And Mr Chair, may I at this stage state that we are not in possession of the affidavit by Mr Tekane. I don't know whether the panel has the affidavit?

CHAIRPERSON: Yes I'm just looking, I don't think we have one either in our papers.

MS MTANGA: Chairperson, I'm not aware of any affidavit submitted by Mr Tekane.

MR SHAI: Thank you.

ADV DE JAGER: Can't he repeat, you're asking amnesty for?

MR SHAI: And I'm actually using what is written on page 25 of the bundle. The nature and particulars of the acts that he's actually applying for, terrorism, murder, possession of ammunition and arms and car theft and to this according to our instructions he also makes an application for the attempted armed robbery as well relating to the incident on the 5th February 1993.

ADV DE JAGER: Oh, you've read from paragraph 9(a)(iv)?

MR SHAI: That is correct.

ADV DE JAGER: Yes.

MR SHAI: Now Sir, during the time of the incident of the 5th February 1993 were you a member of any political organisation or a supporter thereof?

MR TEKANE: That is correct, I was in the African National Congress. I was actively involved with the MK activities whilst it was still underground.

MR SHAI: Did you have any special training relating to MK activities?

MR TEKANE: Yes I did obtain some training while I was still a student in Lesotho.

MR SHAI: Now can you take us through to the time from your training up until the 5th February 1993, just briefly?

MR TEKANE: When I was still a student in Lesotho we met as students and often times would meet with people from other countries like Russia and others and they would teach us about politics. Even the literature that was banned in this country was possible to be achieved through them and they taught us how to use weapons, but it was not an in depth training because to get an in depth training, one was supposed to have gone to their camps.

MR TEKANE: Now on the 5th February 1993 were you still a member of the MK or the military wing of the ANC?

MR TEKANE: That is correct I was still a member.

MR SHAI: Now you have been listening to the evidence by your fellow applicant Marvin Maesela, is that correct?

MR TEKANE: That is correct.

MR SHAI: And you confirm the evidence as far as it relates to you?

MR TEKANE: That is correct.

MR SHAI: Now the ...(indistinct) of the bakery in which you are better positioned than Mr Maesela to actually tell this Committee what happened, would you please do so?

MR TEKANE: After ourselves having agreed that we were now going out, the bakery or the shop where the bakery is situated is opposite the home where I was staying, when it approached when the vehicle approached we did not realise, we did not see it, we thought it was the police, we were unsure as to it's direction, we only listened to the sound. It was approaching from the next street. We saw by it's lights that it was coming to our direction because there was a T-Junction that it was approaching, we didn't know whether it was going to go down or come to our direction. We decided then to hide ourselves among the houses. Thabiso and all of us turned to the right we turned to the left towards it's direction. The firearm that I had was too big, I couldn't hide it. The vehicle approached. According to their evidence they say they saw someone who had something that was hidden. When they testified in court they said they parked the car and they came out to look at this person who was hiding to see as to what he was doing. Now it was convenient to hide myself where I was in case they were attacking me. One of them who saw me pointed at the place where I was hiding behind a short wall fence. As he was explaining the security man saw my movement when I was trying to peep and he shot at me. The barrel of my gun was facing my direction and I shot just to threaten them, I didn't want them to come to where we were hiding and I didn't want to shoot them. If I wanted to shoot at them I would have done so easily, I would have waited for them to come closer and shoot at them. I was at a very nice position to shoot because I had a machine gun and they had a shotgun. I managed to threaten them, they ran away leaving the truck behind. I immediately thought of the people who were with me, I thought they would be scared. I decided to go and report to them as to what happened this other side. I told them that it was the people from the bakery who tried to attack me, I threatened them and they ran away.

MR SHAI: Did you at any stage think of robbing the bakery then?

MR TEKANE: I would not say that. If it was my intention to rob them, I would have easily done that.

MR SHAI: Why do you say that you would have easily done that?

MR TEKANE: These people were delivering at the shop and they came in the morning and I knew their routine in full. Had it been my intention to rob them, I would have planned thoroughly to rob them so they just came unexpected.

MR TEKANE: Do you confirm that Thabiso was your commander on the day in question?

MR TEKANE: That is correct.

MR SHAI: Do you know who he was reporting to?

MR TEKANE: I only know a little, my level allowed me to know who he reported to.

MR SHAI: And my Honourable Committee, we have actually decided to use Thabiso as a witness in this application but their names are going to be cast around and the people whose names are going to be mentioned haven't been notified about that and I have actually stated on the first day of the hearing I only consulted with Thabiso on that day.

CHAIRPERSON: Yes, no well we'll deal with that when it arises. It's only when the Committee is apprised of information implicating somebody before a hearing is actually held that we are obliged to give notice but if it happens at the hearing of course you're under no obligation and in any case as you indicate that he would clarify this question about, that you have just asked this applicant about?

MR SHAI: That is correct.

Now how many people were in the unit in which you operated?

MR TEKANE: At the time of the incident there were five.

MR SHAI: Who were they?

MR TEKANE: Thabiso Mokgatle, myself and the other two recruits, Sediso and Frank.

MR SHAI: When you say recruits what do you mean?

MR TEKANE: These were the people who had just joined the organisation.

MR SHAI: Were they involved in the decision making of the unit?

MR TEKANE: No, they were not involved, they were actually told as to what would happen.

MR SHAI: Now when you went there did you intend to go and kill those said policemen?

MR TEKANE: The intention was not to kill.

MR SHAI: What was it that you intended?

MR TEKANE: It was to threaten and take the pistol from him.

MR SHAI: And it's now common cause, it's now evidence before court that something went wrong in your operation, is that correct?

MR TEKANE: That is correct.

MR SHAI: What led to the murder of the policeman?

MR TEKANE: I was present at the scene and I was at the back, Thabiso was in front. Our position only allowed us to protrude one by one. We had told ourselves that if we approach one by one this person would have a problem in attacking us. There was a wall where Thabiso was supposed to appear from and there was a wall from his side as well. After Thabiso disappeared there was a gunshot and a truck appeared. I could not understand from where I was as to who was shooting, whether it was Thabiso or him. I did not expect to hear a gunshot because I had a gun in my arms I got scared. The vehicles lights were now facing our direction and I got scared as to will I be the next one to be shot, that's why I decided to act, in other words had he shot at Thabiso, Mokgatle was going to be the second and I was going to be the third. That is why I shot first, I knew that this person was trained and he was armed. When the truck drove in front of me I shot.

MR SHAI: And you don't dispute that you could have fired the fatal shot, is that correct?

MR TEKANE: I do not dispute that, the firearm that I had was very powerful and it was facing his direction.

MR SHAI: Immediately after the incident or after your arrest you actually made a confession to the police, is that correct?

MR TEKANE: I was very stubborn because the police did not handle me properly. They actually dictated to me what to say. They said to me we're taking you to the Chief Magistrate, this is what you will say. I just kept quiet, I was very stubborn. Then they told me "do not be stubborn, we have enough evidence on our side, we will press you", they said "you also have a chance to apply for amnesty." I would not say that that was my statement, they actually forced that statement out of me, they wanted me to tell the Chief Magistrate what they told me.

MR SHAI: Without going deeper into the merits of the confession, but it became a subject of a trial within a trial in your trial, is that correct?

MR TEKANE: That is correct.

MR SHAI: Now in that statement or in that confession you actually admitted having killed the deceased, is that correct?

MR TEKANE: Yes, in the police statement I agreed.

MR SHAI: And you admitted to having gone there to rob the policeman of his firearm, not to kill him, is that correct?

MR TEKANE: That is correct.

MR SHAI: Now you also make an application for an incident relating to a car theft. Will you please put this Committee into the position to understand under what circumstances this amnesty is being applied for?

MR TEKANE: I included this incident because of the statement from the police. They were accusing me of many things, they did not explain to me clearly as to which cases to apply for. They only said to me I must apply for amnesty for all the cases against me, the car theft was also among those, that's why I also applied for amnesty on behalf of that.

MR SHAI: But what are the political circumstances pertaining to the car theft or the circumstances pertaining to that car theft?

MR TEKANE: We used to conduct our operations using stolen cars. Most of the times we used stolen cars to carry out our operations.

MR SHAI: And what would you like to say to the family of the deceased?

MR TEKANE: To the family of the deceased I want to say this to the Committee, I even said this to the judges, I told them that I was very sorry and I had nothing personal against the family of the deceased. The political situation has changed and I did not want to reveal myself but it happened anyway that I was revealed and I am thus seeking amnesty and I am asking for their forgiveness. They must not think that I hated him, I did not even know him, I only saw him in the photos when I was shown the photos in court. I am deeply sorry, this was a very bad thing to do and today they know it's me who did this. I really want to ask forgiveness from them, from God as well and I want to ask forgiveness from the whole community. I do not wish such acts to go on. I am really asking for their forgiveness. If they find it in their hearts to forgive me and shake my hand I will be very happy. We're talking about the past, I think we must forget about the past and focus for the future.

MR SHAI: No further questions Mr Chair.

CHAIRPERSON: Thank you Mr Shai.

Mr Tekane, the car theft, is it one theft or is it more than one car theft that you are applying for?

MR TEKANE: There were no specific cases relating to cars, the police only told me of many cases. I was not even taken to court for that case involving a car.

CHAIRPERSON: So you haven't actually stolen a car?

MR TEKANE: I have stolen a car.

CHAIRPERSON: No, I want to find out are you applying for amnesty in respect of that theft of the car or is it more than one theft of a car that you want to apply for?

MR TEKANE: I'm applying for amnesty for being involved in a stolen car.

CHAIRPERSON: Is it just one case?

MR TEKANE: Yes but when the police told me they referred to many cases. They even showed me a box full of files saying those were my cases, all of them, and I did not know what they were talking about.

CHAIRPERSON: Yes, we'll leave that for the moment, we'll leave what the police were saying, now I want to know what you are saying. So you're saying you're applying for one case where you were involved in a stolen car?

MR TEKANE: That is correct.

CHAIRPERSON: Now when was that?

MR TEKANE: I can't remember the date but I still remember that I was given a few lectures.

CHAIRPERSON: Oh, so this is something that's been done in court, you were charged and convicted and sentenced to, in those day, corporal punishment for that?

MR TEKANE: That is correct.

CHAIRPERSON: But was it a political case or what?

MR TEKANE: I would say it was a political case. I would not go out and steal a car because I needed money. When this happened, this happened after 1976 when we were supposed to cross the border to Lesotho. Our parents removed us from home because of the raids. I was taken to Bloemfontein and at my granny's we felt very unsafe because they wanted permits for

people who did not reside in Bloemfontein. We could not keep up with staying indoors all the time, then we decided to get a car to take us to Lesotho. Nobody volunteered to go and steal a car, I volunteered together with one chap who has since died. We went to steal the car, because I was still inexperienced I bumped the car and I was arrested. That car was supposed to take us to Lesotho. It was meant for the purpose of letting us skip the country and that did not happen.

CHAIRPERSON: So instead you were arrested and you were taken to court and given lectures?

MR TEKANE: That is correct.

CHAIRPERSON: Was this in 1976 you say or was it after 1976, when was this?

MR TEKANE: I think it was 1976, if not 1977.

CHAIRPERSON: And was the car stolen in Bloemfontein?

MR TEKANE: Yes.

CHAIRPERSON: And what kind of car was it?

MR TEKANE: It was a new Toyota Corolla.

CHAIRPERSON: And where did you steal the car?

MR TEKANE: There's a company in Bloemfontein city centre called Oranje Toyota, it's selling new cars.

CHAIRPERSON: So did you steal the car from their premises?

MR TEKANE: Potlake resided in Bloemfontein and gave me a direction. He told me that when they clean the cars they take out the key from the ignition and they leave the key underneath the seat or put it on the roof but inside so it was easy to just search underneath the chair and take out the key.

CHAIRPERSON: Yes and did you steal the car from the premises of Oranje Toyota in Bloemfontein?

MR TEKANE: Yes, next to the door.

CHAIRPERSON: Yes, now I see there's a reference and you've been led on that, there's a reference to terrorism in your application. Now does that also form part of your present application or is that something that is a totally different matter from this one, where the policeman is involved?

MR TEKANE: A policeman called Chris wrote it as terrorists but my application, I was applying for being a freedom fighter. He just decided to write terrorist.

CHAIRPERSON: Was there a policeman that helped you with this application?

MR TEKANE: That is correct.

CHAIRPERSON: Were you still in police custody at that time when you applied for amnesty?

MR TEKANE: That is correct.

ADV DE JAGER: So are you still in jail or are you out?

MR TEKANE: I am still in jail.

ADV DE JAGER: Where were you kept, which jail?

MR TEKANE: When I submitted my application I was in Protea, Soweto.

ADV DE JAGER: Were you and Thabiso at any time in the same jail?

MR TEKANE: We've been together since from Bloemfontein, we were together in the Johannesburg Prison, we are still together in the Pretoria local prison.

ADV DE JAGER: Have you been at Grootvlei?

MR TEKANE: Yes. I was arrested in 1995 and I stayed there for 14 months.

ADV DE JAGER: And was Thabiso also in Grootvlei at that stage?

MR TEKANE: Yes.

CHAIRPERSON: Was the policeman that helped you complete the application, was he from the Protea guard unit of the police?

MR TEKANE: No, the one you're referring to only accepted the form after I completed it. The one who assisted me in the filling of the form is the one who investigated the case.

ADV DE JAGER: You didn't complete this form while you were in Grootvlei jail?

MR TEKANE: No, I did not complete this while I was in Grootvlei, I completed it when I was in Protea.

CHAIRPERSON: So what you're saying is really that, just going back to this question of terrorism, that was written in because you said that you were a member of the liberation movement?

MR TEKANE: That is correct.

CHAIRPERSON: Alright.

MR TEKANE: I explained to them that I was a member of the MK. They asked me what my duties were, I told them I was a freedom fighter. They said no, you are a terrorist.

CHAIRPERSON: Yes thank you Mr Tekane. Mr Richard?

CROSS-EXAMINATION BY MR RICHARD: Thank you Chairperson.

Mr Tekane, if I look at page 29 of the bundle, do you have a bundle in front of you? Are you with me now? Page 29? There at paragraph (d), you say that the date of your next appearance in court is the 19th and 29th May 1997, is that correct? Is that information correct?

MR TEKANE: That is correct.

MR RICHARD: What happened on the 19th to the 29th May 1997?

MR TEKANE: We attended the case in court.

MR RICHARD: Which court, what charges were you tried for?

MR TEKANE: On murder charge.

MR RICHARD: And did that murder charge relate to the events in February 1993? somewhere at a fee of R2.50 a day.

MR TEKANE: That is correct.

MR RICHARD: Now that means it's quite correct for me to say that when the first applicant today attended court before, you weren't with him, you weren't charged in the same trial?

MR TEKANE: I do not understand your question, Sir?

MR RICHARD: There's an indictment at page 45 of the record where your name doesn't appear at paragraphs 1, 2 and 3. You weren't part of that trial, were you?

MR TEKANE: I was not.

MR RICHARD: Now you say you were in jail in 1995, is that correct?

MR TEKANE: That is correct.

MR RICHARD: On what were you been held in 1995?

MR TEKANE: I was in for this matter, in for possession of firearms and I went to court and I was out. That was in 1996.

MR RICHARD: So when were you arrested first?

MR TEKANE: In August of 1995.

MR RICHARD: So that means between 1993 and 1995 you weren't arrested, you were free?

MR TEKANE: That is correct.

MR RICHARD: Now who were your co-accuseds?

MR TEKANE: This case had split. Those who were arrested first went on their own, myself and my co-accused were on the other side.

MR RICHARD: Who was your co-accused?

MR TEKANE: It was Thabiso Tekane, my brother.

MR RICHARD: And what sentences did you receive and what did Mr Thabiso Tekane, your brother, receive?

MR TEKANE: I was sentenced to 55 years, brought down to 38 years. I think Thabiso was sentenced to 65 years and was brought down to 39 years but there was another sentence for a firearm, I think it was six years. I don't quite remember.

MR RICHARD: Now in your evidence in chief you made a statement that at your level you were allowed certain information as to who your brother Thabiso reported to, is that correct?

MR TEKANE: That is correct.

MR RICHARD: Now who did he report to?

MR TEKANE: He reported to a person who were referred to as Sisi who resided in Diepkloof and her real name is Margaret Stofile, she has been integrated into the defence force. We don't know her whereabouts now because we are in jail.

MR RICHARD: I don't think it's necessary to put it into the record but do you know her address?

MR TEKANE: I do not know it by heart but I can identify where she lives. If it's necessary I can assist. Perhaps I can also send my parents because they also know where she stays. They know the place that used to belong to her during the struggle, maybe if they go there they might discover her whereabouts.

MR RICHARD: Now what position within the ANC did she occupy?

MR TEKANE: We were not supposed to know every little detail within the organisation. If we were on a certain level, you would not know anything that is above your level, you would only know those levels that come below you but I know for a fact that she was directly involved with us.

MR RICHARD: Now since 1994 has the ANC made contact with you?

MR TEKANE: They tried and they failed because of the conditions under which we were held and I want to explain to this Committee, I am very resistant and I am very stubborn.

Because of that I do not get visits, my ordinary visits are cancelled, I always fight for my rights and I am against them all the time. My parents often come to visit me and they are turned away. I battle to get even a telephone call. As at now I am fighting. I do not understand and I don't want to be intimidated by what I do not understand.

MR RICHARD: My question is quite simple, you say you were a member of the ANC and I'm merely enquiring as to where in the general hierarchy of the ANC you fitted? My question was to go back to it, is in 1994, 27 April, the new South Africa came to be and since then, whatever might have prevailed before then, my question is has the ANC been in contact with you and discussed your amnesty application with you?

MR TEKANE: They tried to meet with me and Thabiso but they failed. They managed though to see Mokgatle because they'd been years in jail. He had also been close to the death row and the head of prison allowed him to come and see us and he got shocked as well to hear that these people did not manage to reach us. The other inmates in the prison told us that they called the headquarters and the were ordered to search for us because they could not find us. The conditions in jail would be very difficult to understand unless you go there. Everything is hidden under the carpet but there is evidence that we always fight with these people.

MR RICHARD: Now when did you first join the ANC?

MR TEKANE: That was in 1978 when I was heading for Lesotho.

MR RICHARD: I'm not clear, did you join the ANC in South Africa in 1978?

MR TEKANE: There was nowhere in South Africa where I could join, I joined in Lesotho. In 1978 you would not even see the placards for training the ANC, you would not even dare mention Mandela's name. When you did so you had to do it very quietly but on crossing the border you'd see big placards "Struggle is our life" and big photos of Mandela. There were many refugees as well. When I arrived I just joined. We lived together, we went to school together, we did everything together.

MR RICHARD: Who was in charge of the ANC group that you joined in Maseru?

MR TEKANE: They had a refugee camp. The leaders were in Tanzania. Each new group arriving would not stay long, there would be a plane arranged for them to take them to Mozambique then to Dar-es-Salaam, some of them would come back on completion of their courses and be integrated into the townships. The leadership came back very late. Chris Hani was among them and I lived very close to him at Dithabaneng.

MR RICHARD: So within Lesotho, as a member of the ANC, did you take instructions, did you take direction from any particular person? If you did can you mention his name? Or her name?

MR TEKANE: The person who instructed me has since died. This person gave me a lot of books and I stayed with him in the rural areas, he had been to Russia, he had been to Germany for telecommunications, he had been to Tanzania and that person was attacked by means of a letter bomb. His name was known to me as Sipiwe.

MR RICHARD: Sipiwe? Not Sipiwe Nyandi?

MR TEKANE: Sipiwe Khumalo and that was no his real name.

MR RICHARD: Now when did you leave Lesotho?

MR TEKANE: I went to school in Lesotho when it was holiday I would come home and when the school started go back. I would not actually tell you how long did I stay in Lesotho, I had been to Lesotho many times. Sometimes I used my passport, sometimes I didn't.

MR RICHARD: My question was far less complicated. When did you leave Lesotho and go back to live in Soweto?

MR TEKANE: I completed my Matric in 1980, I came to stay this side. In 1982 I went back to Lesotho to study further at a Technikon but between 1980 and 1982 I had been going to Lesotho for occasional visits. Sometimes I would go to Lesotho twice in a week.

MR RICHARD: Thank you Sir, I understand that you went backwards and forwards, it's far less complicated. At some time after 1982 you joined the SDUs, the self defence units, when was that?

MR TEKANE: In 1990 - 1991.

MR RICHARD: Who recruited you into the SDU's?

MR TEKANE: Molefe Mitseng's family was responsible for the recruitment so we went through them.

MR RICHARD: Now is that the - Mr Molefe that your co-applicant referred to?

MR TEKANE: Yes.

MR RICHARD: Now how well did you know Mr Molefe?

MR TEKANE: I knew him very well, very well because he had been to school at Lesotho and there's a time when we stayed together.

MR RICHARD: Now Thabiso, is he your older or younger brother?

MR TEKANE: He is my younger brother.

MR RICHARD: Now who recruited Thabiso, did you or Mr Molefe?

MR TEKANE: I would say they joined at the same time with Molefe.

MR TEKANE: I beg your pardon, what was your answer? With you? With me?

MR TEKANE: I would say Thabiso got involved in the SDUs at the same time as Molefe. The person who was instructed to recruit people was Molefe because he was close to us, he instructed us to get suitable people to be trained and to be giving weapons.

MR RICHARD: Now when you received an instruction from Mr Molefe, not Oupa Molefe, what did he instruct you to do, what were his directions?

MR TEKANE: The instructions were that we must form units that would protect the units from the attacks of unknown third forces. Now we were supposed to select people who had been to school, who were not involved in criminal activities, people who we trusted that they would be in a position to use bombs and not hurt people in the township. So we had knowledge of these things. Our duty was just to distribute them. Molefe was the elected person, he was elected by the top people and we were close to him and we knew some things that ordinary members of the township did not know.

MR RICHARD: Now where you ever directed to go on operations or any missions? I know you were self defence units but were you told to do any operations to attack any targets?

MR TEKANE: I do not remember the year but it was during the time when Inkatha was attacking people in the townships and we were given an order to go and protect the people, we were given very dangerous weapons. I would not estimate a number of people we were fighting but we managed to defeat them, these were the people we were attacking from the hostels. When we arrived we discovered that people deserted their houses, some of them were burnt. People had just gone away. Because we were trained and we knew the strategies of the war we planned and we kept guard waiting for them. They came at a certain time, we attacked them, they moved back.

MR RICHARD: Now were you every given any instructions concerning the South African Police?

MR TEKANE: There was much talk about the third force and it transpired that the police were involved in the killing of people, assisting the people from the hostels and protecting the other groups and it transpired that the police were highly active and there was an order that we should dehumanise them so that they are not recognised at all. An order was that they must be seen not as an obstacle for the struggle to carry on, an order was that they should be discouraged because some of us even left the organisation to go and join the police so we had to harass them in a certain way to show them that the guns they carry all the time can be taken from them and be used against them. So an order was taken out that we must make them very unstable, both Black and White as long as we had the power and the weapons to attack.

MR RICHARD: Now who gave you those instructions?

MR TEKANE: This was an order from the top structure but it came to us through Molefe and he received it from Oupa Tekani because that's when we got a new supply of weapons.

MR RICHARD: A new name, Oupa Tekani, what other name does he have?

MR TEKANE: I made a mistake, it's Oupa Tekeri, his name his Oupa Monareng till referring to him by the combat name.

MR RICHARD: No I understand, as long as we make sure that we have each of the names correct. Now when did Oupa Monareng or Tekeri give you this instruction?

MR TEKANE: I do not want to commit myself as to the dates but it was around 1991.

MR RICHARD: Now during that period, the concern was what was legitimate targets and whether the armed struggle should continue. Were you aware that in 1990 the instruction was that the armed struggle should be suspended?

MR TEKANE: Yes, I was aware. At the time of Chris Hani's death the negotiations were suspended because of the third force activities. In the underground we were still operating, ready, waiting for an order to come out. We were supposed to be on the alert and wait for situations where policemen are harassing people and come out and rescue the situation. The police were supposed to be informed that they also can be targeted.

MR RICHARD: Now wouldn't you say an attack on the police after the suspension of the armed struggle was incorrect?

MR TEKANE: No, not according to the situation at that time. The boers were negotiating on the other side and on the other side engaging in very bad activities so we would not trust them. They would appear in public and say yes, we agree but behind the doors they would be buying White people, they would be buying the Zulus, they would be supplying people with weapons. I knew in my heart that it was not wise to trust the White people.

MR RICHARD: But the instruction to suspend the armed struggle came from Chris Hani?

MR TEKANE: That is correct, it is the same person who said SDUs must be formed and people must be defended against any form of attack and he was killed just two months after he had pronounced that and as a result of that there was a standstill with the process of negotiations. There were Codesa One, Codesa Two negotiations were on but the Boers drove into Kempton Park, Terreblanche and them.

ADV DE JAGER: ...(indistinct) incidents Amnesty is sought?

MR RICHARD: Thank you Chair.

Now when did you plan the attack on the deceased Constable Setegi, when did you meet to discuss that would happen, was it one day or three days before the incident, a week?

MR TEKANE: It took us a week to know that there was a policeman living around, it might have been a week.

MR RICHARD: Now did anyone reconnoitre, conduct reconnaissance of this particular policeman?

MR TEKANE: There's a cricket field between our houses and the houses where he lived. There were young people who belonged to the self defence units who brought the information to say there's a policeman who lives around here and we did the reconnaissance.

MR RICHARD: When you say we did reconnaissance, there were five of you in your cell, which person in the cell did the reconnaissance?

MR TEKANE: I did, Thabiso, Mokgatle, Frank and Sediso also did reconnaissance. There's a time, if I remember well, we sat from about 3 o'clock in the morning, actually monitoring the time he would wake up. At 4 o'clock sharp the lights went on, we were on top of a hill so we could see the house clearly. We saw him moving around the house, when he went out to dispose of the water he used to wash, we were watching all these things happening and we discussed as to what will happen. On the day of the incident from about 2 o'clock we were together.

MR RICHARD: Where were you together?

MR TEKANE: We were together at our store, there were back rooms at the store.

MR RICHARD: Now what is the name of that store?

MR TEKANE: Maluti Enterprise.

MR RICHARD: Now how far away from the terminus store cafe is that?

MR TEKANE: Can you repeat the question Sir?

MR RICHARD: An incident with the bread delivery happened at a cafe or shop called Terminus, you mentioned a name Maluti Store, how far apart are they?

MR TEKANE: Maluti is here at the beginning of the stage and right at the door would be - I cannot accurately estimate the distance but one would be in a position to see clearly what's happening between the two.

MR RICHARD: It's 30 to 50 metres, it doesn't matter but it's fairly close. Now you had also observed Constable Setegi's house. Would it be correct and I don't intend to go through it point by point, that what Anna Setegi says in her statement that he got up at around 4 o'clock in the morning, that morning, got ready and left at 4.30 and came back at about 5, would you dispute anything as inconsistent with your observations?

MR TEKANE: We did not have time to observe on the day of the incident, we actually said to plan.

MR RICHARD: Now I have instructions that his ritual and habit was to wake up at 4 o'clock, get ready for work, leave at about 4.30, go and collect a big yellow police truck from the Moroko Police Station, return home and then go off, not necessarily always return home but were those consistent with the information you received in your own observations and reconnaissance of Mr Constable Setegi's habits?

MR TEKANE: I would not dispute what you have just told us but on the day of the incident we found the van already there idling, it was inside the yard. One would have thought that the vehicle spent the night there.

MR RICHARD: However, you say the vehicle was idling so that means Constable Setegi had already been to the van by the time you got there, he had started it even if you had not seen him come in? Is that what you deduced?

MR TEKANE: I would not dispute what you've just said, the vehicle was in the yard and it was idling. Whether he had just arrived but it clearly shows that he had been to the vehicle already.

MR RICHARD: Now who is Frank Matibogo Tekane, is he another one of your brothers?

MR TEKANE: Frank was a recruit very close to us.

MR RICHARD: Now do you understand Afrikaans? I've got a statement in Afrikaans, I'll translate it but forgive me if it's not accurate. On the 30th March 1993 in another words a short period after the incident, Frank Tekane gave a statement to the police where he said:

So that means he's correct when he makes that statement at page 826 of his document?

MR TEKANE: I don't believe so, when we arrived the vehicle was inside the yard. Even at that time when the vehicle reversed we were just at the bottom of the hill, we had to run so that we can hide.

MR RICHARD: I'm sorry Sir, I'll repeat the translation. It simply said in his confession:

ADV DE JAGER: ...(inaudible)

MR RICHARD: It's page 4 and it's probably two thirds, there are a number of asterisks.

ADV DE JAGER: Okay, fine.

MR RICHARD: And it's substantially identical to what you've just said, the truck was idling in the drive, or idling at the policeman's house, there's no discrepancy, is there? Am I correct?

MR TEKANE: Yes you are.

MR RICHARD: Thank you and then you carry on and say we went to the house next to "langs aan" next door, to wait till the policeman came out of his house, is that correct?

MR TEKANE: That is correct.

MR RICHARD: Now how far away from the policeman's house is the house next to the policeman's house?

MR TEKANE: The houses have very small yards, they are closed. There was just a wall in between, a wall fence in between.

MR RICHARD: Now then there were five of you, were all five of you in the house next door behind the wall waiting?

MR TEKANE: That is correct.

MR RICHARD: The policemen then came out, climbed into the truck and reversed, is that correct?

MR TEKANE: That is correct.

MR RICHARD: And then he reversed out, got out of the truck, went to close the gate and then Frank Tekane carries on to say:

MR TEKANE: Frank is not telling the truth. The police told him to write that, to say that.

MR RICHARD: Now - bear with me, I've found it.

On the 13th March 1997 your brother, that's Thabiso, also made a statement which are you aware of that?

MR TEKANE: No, I'm not.

MR RICHARD: Isn't it correct that you and your brother were tried in the same trial?

MR TEKANE: That is correct.

MR RICHARD: Now at paragraph 11.2 on page 2 of the statement you made to the police, your brother said in answer to the question:

There the answer was:

Did you know he made that statement?

MR TEKANE: I know that and I know that we were fighting against those confessions in this very same trial. There was a trial within a trial, fighting against those confessions. We were saying we did not voluntarily and freely give those statements.

MR RICHARD: Now tell me, as at 1997 and that was before your trial, were you aware that the Truth Commission's work had begun?

MR TEKANE: Yes.

MR RICHARD: Were you aware then of what you had to establish to the Truth Commission to get an amnesty? Had somebody explained to you that you had to commit an act which constituted a crime which done with a political motive in pursuance of orders which you bona fide believed would further - had anybody explained that to you yet then?

MR TEKANE: Yes.

MR RICHARD: So you knew that before you made the confession to the police, isn't that correct?

MR TEKANE: I would say so but I was given a prior information when I made my application. When I made the confession I was not yet in position of knowing exactly what the TRC was all about.

MR RICHARD: Because my submission is that certainly as at '97 or '95 when you had been arrested, would the TRC process in motion, it would certainly you would have to stand trial. If you had a clear conscience as to what you were doing your confessions would tell the truth?

MR TEKANE: I do not understand your question, Sir?

MR RICHARD: If when you made your confessions, your brother Thabiso's case in 1997, in your case I'm not certain because I haven't been briefed with a copy of your confession, but post 1995. Because the Truth Commission process was under way and what was needed to get amnesty had already been publicised, if a person in your circumstances led into the 1993 incident made a confession, it would be no reason to lie or misrepresent?

MR TEKANE: I was very scared of the Truth Commission, I was afraid that the Truth Commission was going to bring my enemies here because there are people who do not know up to this stage who shot their loved ones. I was very scared of the TRC, I was scared that I would come here and talk of things that the police didn't even know and I didn't want to come here and sit in front of the camera up here on television to do such things. Even some of the people in our leadership did not want us to do this because we saw it as a trick to just trigger us to reveal what we did. I made an application, I cancelled it, I then did the second one.

MR RICHARD: So when Frank Tekane in his statement, to go back to it, says when you were planning the operation, the discussion was they said to him, that's Frank Tekane, that the following day your group would go and kill a policeman and then Net, that's you, said that he, Frank, must go with. What's your answer to that one?

MR SHAI: I make an objection, my learned colleague is misleading the Committee. The statement by Frank - which one is it?

ADV DE JAGER: Frank ...(indistinct) Tekane, didn't he perhaps he use one, refer to Exhibit A,B,C or whatever the exhibit may be and if it hasn't got a number, let's number it please?

CHAIRPERSON: Is that the statement of Frank Matsibobo Tekane dated the 30th March 1993?

MR RICHARD: That is correct, Chairperson and then the one made by Thabiso Tekane on the 13th March 1997 would be

Exhibit C and for the sake of clarity Exhibit A is the one made on the 3rd February 1993 by Anna Setegi.

CHAIRPERSON: We are now dealing with Exhibit B.

MR RICHARD: Exhibit B and that's line number 4 of the typed content thereof - "hulle het aan my gese dat" "They said to me that the next day we will kill a policeman and Net said to Frank that is he must come with."

CHAIRPERSON: So are you dealing with typed page number 4 of this Exhibit B?

MR RICHARD: That is correct.

CHAIRPERSON: And you are referring to the section where the sentences are all underlined?

MR RICHARD: Correct.

CHAIRPERSON: And which of those lines from the top are you referring to?

MR RICHARD: If we count the underlined section it's on the fourth line and it's Nablid Mokgatle, starts "hulle het"

CHAIRPERSON: Yes, thank you. Have you got that Mr Shai?

MR SHAI: Thanks.

CHAIRPERSON: Very well.

CHAIRPERSON: Yes, you can proceed Mr Richard.

MR RICHARD: Mr Tekane, do you have any comment, were those words said, yes or no?

MR TEKANE: Some of the things uttered by Frank and them I did not take into consideration. He was right at the back, he was far to even see what was happening.

ADV DE JAGER: This what is put to you now is whether Frank's version here that you and not specifically you yourself, but you people told him that you're going to kill a policeman the next day. Do you know that such words were uttered?

MR TEKANE: No, that is not true.

MR RICHARD: But nonetheless, other specific details such as the truck idling in the drive are correct?

MR TEKANE: Yes.

MR RICHARD: So you say that Frank Tekane where to lie and not to lie?

MR TEKANE: I don't want to say anything, he wrote those statements to the people. What he said was the will of the police.

MR RICHARD: Now is it correct that your information was that this policeman regularly left his home in a police vehicle with his firearm and that's why you chose to target him, he had a firearm for you to rob?

MR TEKANE: That is correct.

MR RICHARD: Now it also follows that a policeman carrying a firearm is trained in the use of the weapon and knows how and when to use it, he uses it to arrest people to protect himself and he has been taught how to do it?

MR TEKANE: That is correct.

MR RICHARD: So now doesn't also follow that if a policeman is accosted and threatened, it's quite possible that he will take out his firearm and defend himself?

MR TEKANE: If a policeman is not trained he would do it but if a police realises that three firearms are facing him and very powerful firearms, he would just leave everything.

MR RICHARD: From where you sat or stood or hid behind the wall could you see what the Thabiso was doing on the other side?

MR TEKANE: I could not see. The wall was disturbing my vision.

ADV DE JAGER: Sorry, could I just ask a question?

Thabiso made a statement, an affidavit, in March 1997 so that was long after Frank for instance, four years after Frank made his statement and in his statement he is saying the following. Could you have a look at page 4 of his statement?

We haven't given it an exhibit number yet so ...(intervention)

MR RICHARD: Chairperson, Frank Tekane's statement is Exhibit B and Thabiso Tekane's statement is Exhibit C.

ADV DE JAGER: Exhibit C, ...(inaudible)

INTERPRETER: The speaker's mike is not on.

MR TEKANE: Can I ask a question? Is that Frank's statement or Thabiso's statement?

ADV DE JAGER: Thabiso's statement.

MR TEKANE: I would agree to what he is saying there.

ADV DE JAGER: So they fired before the door was closed and the one fired from the front and the other from the side?

MR TEKANE: That is correct.

ADV DE JAGER: And that was before the policeman even closed the door?

MR TEKANE: That might be true.

ADV DE JAGER: And several shots were fired at once? The one fired from the front and the other from the side?

MR TEKANE: Yes. I also shot, I was the third person also.

ADV DE JAGER: Why didn't you try and stop this person and say this is a hold up? Why start shooting before even saying anything to him?

MR TEKANE: The wall caused confusion, it did not allow us to come out all of us at the same time. I think Thabiso missed him at the first shot and the men managed to get into the car and the plan changed completely because we were supposed to accost him before he could even get into the car.

ADV DE JAGER: Were you supposed to shoot him before he could get into the car?

MR TEKANE: No, we were not supposed to shoot. When Thabiso got him before he could get into the car, he would hold him up and I would come out, all of us would come out, take his firearm, take his badge and produce it before the top people of the ANC because after taking a firearm we were supposed to take a badge and present it as evidence.

ADV DE JAGER: He reversed out of the yard, stopped in front of the yard, was his car still facing the gate of the yard?

MR TEKANE: No, when the car reversed it turned and it stopped parallel with the road. What he was supposed to do was just to turn it into the road, it was ...(intervention)

ADV DE JAGER: Yes, did he turn the car before he closed the gate? Before he stopped to close the gate?

MR TEKANE: He reversed the car and turned the car, stopped, got out of the car, closed the gate, the car was already parallel with the street, it was already in the street.

ADV DE JAGER: And all of you were at that stage next door close to him because it's a small yard we've been told?

MR TEKANE: We were at the bottom of the hill. When he reversed the car we came running and hid next to the wall, the next door wall. When he reversed we managed to hide. When he closed the gate Thabiso was in the front, Thabiso was supposed to accost him after closing the gate. So what happened is he closed the gate very fast, when Thabiso came out the man was already in the car.

ADV DE JAGER: Yes sorry, Mr Richard.

ADV GCABASHE: Just before you go on. The statement of Thabiso, Exhibit C that you're agreeing to as Advocate de Jager was putting it to you, the impression I have and please correct me if I am wrong is that there were two people firing at about the same time Thabiso and Mokgatle - just help me, did I misunderstand? The impression I'm left with is that the two of them fired at the same time, the one was in front, the one was at the side. I don't know if your attorney can just give you that statement to look at, look at that particular paragraph?

INTERPRETER: Can I just translate it for him?

MR TEKANE: After Thabiso disappeared behind the wall, there was a shot that caused confusion and ...(intervention)

ADV GCABASHE: Yes just stop, one thing at a time. So Thabiso went around the wall, the rest of you were hidden, you couldn't see where he was?

MR TEKANE: That is correct.

ADV GCABASHE: Then take it from there, what was the next step?

MR TEKANE: Thabiso shot, Mokgatle shot, I shot.

ADV GCABASHE: Right, now that's too quick for me. Thabiso shot. Where were you, where was Mokgatle?

MR TEKANE: This is the van and this is the wall. When Thabiso went around the vehicle and approached and we were behind, Mokgatle shot and I was shooting and Thabiso was shooting. There was burst of fire towards the car. It was after the van reversed from the yard and parked. Thabiso saw the man and there was a gunshot, it was myself, it was Mokgatle and they were running as the vehicle was moving and I remained behind.

ADV GCABASHE: So as the vehicle started moving, Mr Setegi was in the vehicle already when Maesela shot and you shot, is this what you're saying?

MR TEKANE: That is correct.

ADV GCABASHE: But Thabiso came before that and you don't know if Mr Setegi was in the car already or if he was still trying to get into the car, you wouldn't know that?

MR TEKANE: And he was already in the car but the door was not yet closed because it looks like when he saw him he jumped into the car as if he was trying to reach for a firearm. That is why Thabiso shot at him. At the same time he accelerated the vehicle and the lights were still facing at us. Now we didn't know as to who was shooting who, then we also shot and the vehicle went by, my firearm jammed. They ran as the car was in motion, I was left behind and I was afraid that if I shoot I would shoot either a car or one of them.

ADV GCABASHE: Then just one last aspect. So you were all outside the yard, outside the gate, no one was inside the yard at any stage?

MR TEKANE: Mr Setegi's yard? Nobody.

ADV GCABASHE: Thank you. Thank you Mr Richard.

CHAIRPERSON: Mr Richard, just give an indication, I intend to adjourn, how long have you got to go? Have you still got a fair bit of cross-examination left?

INTERPRETER: The speaker's mike is not on.

MR RICHARD: I'm sorry I don't have the time with me. I think I'd be more than 15 minutes, if that's I think the indication you're asking of me?

CHAIRPERSON: There's no likelihood that you'd finish before we adjourn this afternoon? I wasn't intending to sit much later than this.

MR RICHARD: Chair, we have heard that Thabiso Tekane is going to be called, so we will be sitting tomorrow in any case and I believe that I don't, you know if I'm going to be another twenty minutes or quarter of an hour, nothing really turns on it. I won't be more than half an hour.

CHAIRPERSON: Yes, no we've got people who are also assisting this process, the interpreters and so on, exerting themselves in order in order to keep us afloat so I don't want to sit unnecessarily late if we're not going to achieve anything significant, so I mean if your cross-examination is going to be about half an hour then I don't intend to carry on.

MR RICHARD: Chairperson, I agree, I believe it would also be appropriate to allow my learned colleague to consult with his client on these statements.

CHAIRPERSON: Yes.

MR RICHARD: My suggestion is we adjourn.

CHAIRPERSON: Yes.

MR SHAI: Mr Chair, may I just indicate to the Committee that on Thursday, that is tomorrow, I won't be available. I'm so pressed up, today I had to shuffle around my diary to accommodate this sitting because when I received instructions I was actually of the impression that it will would sit for a day, that is when we actually spoke to Pumsa from Cape Town. I've got particular matters tomorrow that definitely will have to go on.

CHAIRPERSON: Yes now what is your position, are you in a firm or is there anybody else who can deal with the matter?

MR SHAI: I'll have to find out first and phone in the morning because I've got colleagues with whom I'm actually appearing in this other particular matters.

CHAIRPERSON: We have to conclude, this is the very last matter that we've got on the roll here. Of course, you know, in order to have these proceedings there is a fair bit of expenditure that goes with it so it's not you know, we're not sitting in a State facility like a court, so obviously there are a lot of interests at stake here so we need to finish our work as quickly as we can, this is the very last matter that we have on the roll so we obviously want to finish it tomorrow you know so what I want to suggest is that you see what arrangements you can make, you know, for the matter to proceed tomorrow morning.

MR SHAI: It be rescheduled for tomorrow afternoon maybe.

CHAIRPERSON: What, you say in a ...(indistinct) matter, is it a Magistrate's Court matter or a Supreme Court matter or what.

MR SHAI: ...(inaudible)

CHAIRPERSON: And how long is that likely to last?

MR SHAI: There are in the matter they had I think four State witnesses and they have led two and there are two accused involved and there are two legal representatives involved so it may last for - but it's in Orlando so Orlando doesn't normally sit beyond 2 o'clock so I was thinking that maybe if we can sit in Orlando up to 12 o'clock, I may actually ask the court to do that if they will allow it but I'll try to be here at 2 o'clock.

CHAIRPERSON: Yes no we will have to complete the proceedings tomorrow so if we are not going to start at the normal time, you know, we obviously intend to complete the matter tomorrow so, you know, if we are going to start later than normal then we will obviously just add up the time, you know and we will sit until we're done. But won't you just investigate firstly the possibility of one of your colleagues dealing with this, you know?

MR SHAI: I'll try to do that.

CHAIRPERSON: Yes, we'll adjourn just for a while. Would you be able to contact your office now?

MR SHAI: I don't that think I will find the person that I thought maybe would help me.

CHAIRPERSON: I'm sorry?

MR SHAI: I don't think that I will find the person that I thought maybe would be in a position to come help.

MR RICHARD: May I make this suggestion? If my learned colleague and I could be permitted 30 seconds to just discuss something, I might have a solution?

CHAIRPERSON: Very well, we'll stand down I want to ask Ms Mtanga also to look at something else so we'll stand down for a short while and let's see if we can't resolve the matter.

CHAIRPERSON: You know, having reflected on the matter, it does appear to be in the best interests of your clients that you actually do deal with the matter on their behalf so I think we will have to come to arrangement that would accommodate you and accommodate us as well. Is it possible for us to then try and come to an arrangement where you would be able to fulfil your other commitments and be able to come here and finish this one off?

MR SHAI: Thanks.

CHAIRPERSON: Would you be able to proceed with this one in the afternoon?

MR SHAI: Yes I'll try to be here by 2 tomorrow if possible or maybe half past 1, I'll try to arrange with them maybe we'd start earlier that side even though it's difficult actually to do that but maybe given time I can try to reach some settlement with them.

CHAIRPERSON: Yes then we will adjourn these proceedings until two o'clock tomorrow and you will see whether you could possibly get here, if it's possible, before that time?

Very well.

MR RICHARD: I'll be here at whatever time you direct, I'm available for the entirety.

CHAIRPERSON: Very well then we will adjourn the proceedings until tomorrow to this venue and we will reconvene at 2 o'clock in the afternoon and we will then sit until we have finalised the matter tomorrow. We're adjourned.