--------------------------------------------------------------------------CHAIRPERSON: Good morning to you all. By pronouncing a decision in respect of an application that we heard yesterday and that is the application of Mr Jewel Mshlashene Sishaba, who was duly represented by Mr Motepe. Both the applicant and Mr Motepe are present today.

F I N D I N G

The applicant is applying for amnesty in terms of Section 18(1) of the Act for the killing of Mr Boy Buthelezi and the unlawful possession of a firearm and ammunition committed on the 25th October 1993 at Esangweni Section in Tembisa.

At all times material hereto the applicant was a member of the ANC from 1982 and went into exile to join Umkhonto weSizwe in March 1988. Upon his return from exile he became a member of the Self Defence Unit.

The area in which the applicant lived was subjected to a reign of terror and I'm told harassment at the behest of the members of the Toaster gang, who were perceived by the residents to be collaborating with the IFP hostel dwellers at Kosenye Hostel, an area which was an IFP stronghold.

It is common cause that there was an ongoing political battle between the IFP hostel dwellers and the members of the Toaster gang on one side and the ANC people living in Tembisa on the other. Consequently the ANC formed Self Defence Units to protect their supporters as well as the residents. This they did because the South African Police was perceived to be collaborating with the IFP hostel dwellers and members of the Toaster gang and the SAP took therefore no effective measures to prevent or stop the ongoing violence in Tembisa.

The applicant testified that on the 25th October he was at his home when he heard the sound of gunfire. As he was on duty to patrol and protect the neighbourhood, he went outside to investigate. Whilst outside he met one Nhlanhla Ncala, a resident who informed him that three alleged members of the Toaster gang had robbed him of his wristwatch and money and had also robbed the shop of Ms Sweetness Mkosazana Ntlhapo. Nhlanhla was able to point out the alleged offenders one of whom was the deceased, Mr Buthelezi. At that time the applicant was armed with an AK47 and ammunition which was the possession of the SDU in the area and was part of the consignment of weapons bought by the SDUs in order to carry out their activities of defending and protecting the community, from funds collected from the members of the community.

The applicant's objective at the time was to kill the members of the Toaster gang in line with a standing command to do so. He did not personally know the deceased, nor the other two members pointed out by Nhlanhla but believed Nhlanhla and relied on his information about their identity as gang members. As these gang members were openly armed at the time with firearms and outnumbered him, he decided not to use his firearm but to rather follow at a safe distance with a view to getting an opportune moment to kill them. He followed them until they went into House 25 Esangweni Section Tembisa which was a tavern which sold liquor. When the alleged members of the Toaster gang entered the tavern, the applicant observed their movements at a distance. The said members bought alcohol and sat outside the premises of the tavern with their weapons leaning against the wall.

He thought this was an opportune moment to confront them and kill them as they were causing mayhem in the community and were a political anathema to the residents in the township. Moreover, it was a standing policy of the SDU to kill both the IFP hostel dwellers and their perceived collaborators, the Toaster Gang. When the applicant confronted the alleged members of the Toaster gang, the deceased tried to reach for his firearm and the applicant shot him. He was unable to accomplish the objective of shooting the other alleged members because they ran away.

Mrs Buthelezi, the deceased's mother, gave evidence and opposed the application on the basis that the deceased was not a member of the Toaster gang and that at the time of his death the gang was not longer active and in operation in Tembisa. She averred that she did not stay with the deceased. The deceased lived at Umthambeni Section with him mother particularly and pertinently after January 1993 until his death, whilst Mrs Buthelezi lived at Moedi Section.

Having regard to the basis of her opposition, this Committee is satisfied that Mrs Buthelezi is in no way able whatsoever to admit nor deny the allegation that her son was a member of the Toaster gang as he was not staying with her at all times relevant hereto. To that extent the evidence of the applicant that the deceased was pointed out to him by Nhlanhla as such a member, stands uncontradicted and in the absence of any evidence to the contrary we have to accept the evidence of the applicant.

Furthermore it is common cause that the Toaster gang remained in operation in Tembisa in 1993 and her evidence that the gang was no longer in operation at the time of her son's killing can therefore not be accepted. We have already alluded to the applicant's evidence with regard to the objective sought to be

achieved when he followed the alleged members of the gang and ultimately killed the deceased and do not propose to repeat that evidence, as well as the policy or standing command of the SDU towards killing of their political opponents in their battle for political hegemony in Tembisa. Having considered all the evidence before us, we are satisfied that the offences for which amnesty is sought by the applicant are acts associated with a political objective as defined in the Act and that the applicant has complied with the requirements of Section 20, sub-section 1 of the Act. In the premises amnesty is hereby GRANTED to the applicant for the following offences: the killing of Boy Buthelezi, attempted murder of the two unknown members of the Toaster gang, unlawful possession of a firearm being an AK47 and ammunition. We are also of the opinion that the family of the deceased, Boy Buthelezi, and the family of the two unknown members of the Toaster gangs are victims in terms of the Act and we recommend that they be referred to the Committee on reparation and rehabilitation in terms of Section 26 to be considered as such. That is our decision, Mr Motepe, Ms Thabethe.

MS THABETHE: As it pleases the Committee.

MR MOTEPE: May I be excused Madam?

CHAIRPERSON: You may be excused, as well as your client.

Ms Thabethe where do we proceed from here?

MS THABETHE: Madam Chair, I would suggest we proceed with the matter of Charles Bongane Zwane.

CHAIRPERSON: Yes. It has been brought to the attention of this Committee whilst in chambers, that Mr Zwane intended to apply for an amendment. We have not been given details of the nature of the intended amendment, but before we proceed to do so may I, for the record, state that the Panel that will sit to consider and decide upon this application consist of myself, Judge Sisi Khampepe, on my right-hand side is Adv Francis Bosman, on my left-hand side Mr Ilan Lax. Will the legal representatives who are going to be involved in the matter as it stands before us, kindly state their names for the record.

MR SHAI: Ms Chairlady I'm Khama Shai for the applicant, from Shai Attorneys in Germiston.

CHAIRPERSON: Yes, Mr Shai, I would prefer to addressed as Madam Chair.

MR SHAI: Thanks Madam Chair.

CHAIRPERSON: Ms Thabethe.

MS THABETHE: Thank you Madam Chair, I am Ms Thabethe, Evidence Leader of the TRC.

CHAIRPERSON: Mr Shai, the ball is in your court, you may address this Committee.

MR SHAI IN ARGUMENT: Thank you. An application is actually brought for amending the application that was brought by the applicant. The reasons for the said application are as follows.

CHAIRPERSON: Give us first the nature of the application and then you can advance reasons therefore.

MR SHAI: It's an application to actually, for amnesty for incidents that were initially not applied for.

MS THABETHE: Sorry Madam Chair, can I interpose please? I just want to advise the listeners that the channel for Zulu is 3.

CHAIRPERSON: It is an important announcement. May we bring it to the attention of the members of the public that the channel that will be translating the evidence in Zulu will be channel 3 and English will be on channel 1. If you do require assistance with regard to you headphones, just give an indication. We do have - channel 3 is Zulu and channel 2 is English. If you experience any problems during these proceedings with the sound system with regard to your headphones, just give an indication and we will be at hand to come to your assistance.

Mr Shai you were still busy indicating the incidents for which you intend to apply for amnesty.

MR SHAI: That's correct, Madam Chair. The first incident according to the application that is before the Committee now, only an application for amnesty is made in relation to the incident on the 20th January 1989.

CHAIRPERSON: Refer us to the relevant page, we have the bundle, so that we can all be on the same page. Will you be referring to the incident mentioned under paragraph 9(a) which is on page 4 of our bundle?

MR SHAI: That is correct. That will be the incident on the 20th January 1989.

CHAIRPERSON: Yes the murder of three municipal policemen and a passer-by.

MR SHAI: That is correct, Madam Chair. The application that is brought today is for incidents that took place on the 26th December 1988. I'll refer to it as the tavern incident.

CHAIRPERSON: Give us the date again.

MR SHAI: That will be the 26th December 1988.

CHAIRPERSON: Yes.

MR SHAI: Then for the incident on the 26th February 1989, I will refer to it as the petrol bomb incident, as well as an incident on the 1st April 1989 and I will refer to it as the hand-grenade incident.

MR LAX: Mr Shai, the date of the second incident, you said the 26th of February, is it not the 22nd of February?

MR SHAI: The petrol bomb incident?

MR LAX: Yes, is that not the 22nd?

MR SHAI: I think it could be between the 22nd and the 26th February 1989.

CHAIRPERSON: Are you not in a position to be precise?

Bearing in mind that you are dealing with incidents that have already been dealt with previously in a different forum, surely you should be able to have the dates? You must have had recourse to the criminal trial, the charge sheet in relation to that?

MR SHAI: Yes, Madam Chair, may I just state that as far as the dates are concerned, as I will actually advance reasons later for the application for the amendment, I rely solely, when we actually were consulting with the applicant, he himself he didn't know exactly what the dates are, so it was after we had actually gotten hold of the bundle before the Committee, that we actually ourselves tried to particularise the incident.

CHAIRPERSON: Yes, with regard to the date, now that you have the bundle before you, which bundle also includes the transcript of the criminal record.

MR SHAI: That is correct.

CHAIRPERSON: Are you not in a position to be specific as you apply for this application now?

MR SHAI: That is correct, Madam Chair. Madam Chair, that will be the 26th February 1989.

MR LAX: Please continue.

MR SHAI: Then over and above the incident on the - for which I have already mentioned, there is an incident that took place in 1987 and for that incident he has already served his sentence, but it was our instructions when we consulted with him, that he wanted to make an application for that incident as well. The precise date is not known to applicant.

CHAIRPERSON: What is the nature of this incident?

MR SHAI: It is actually possession of a firearm, Madam Chair.

ADV BOSMAN: And there's no reference to this in the bundle at all?

MR SHAI: No, there is no reference to this incident in the bundle as well.

CHAIRPERSON: So this is in possession of a firearm. What kind of a firearm?

MR SHAI: It was a, he says it was a scorpion.

CHAIRPERSON: And ammunition?

MR SHAI: And ammunition. May I advance reasons, Madam Chair, for the application?

CHAIRPERSON: Yes, you may proceed to do so.

MR SHAI: Madam Chair, the applicant is presently serving 9 life sentences amongst others and the incident that led to the multiple convictions and sentences is the incident on the 1st April 1989 and it was during the course of the investigations in that incident that he was linked to the other incidents. It's going to be part of his evidence that he actually operated within a unit. Without dealing with the merits for the application itself, but when they were operating in the unit they used different firearms and that these firearms were not entrusted specifically to a member of the unit, but they were jointly entrusted to the unit. Now it was during the course of the operations that were run by this unit that these firearms would change hands and our instructions are, when he was arrested for the incident that took place on the 1st April 1989, the firearm that was actually found in possession of the person referred to in the bundle as Sonwabu, was found to have been linked to different incidents and of these incidents he personally had knowledge of the incident on the 20th January 1989, which is the killing of the policemen and that is why he actually in his application brought an application for amnesty for the incident on the 20th January 1989. At the stage when he actually made this application, he was not legally represented. Our instructions are as far as the incident on the 26th December 1988, that is the tavern incident and the incident on the 22nd of February 1989 are involved, he even at this stage, doesn't know the relevant specific activities that were carried out on the day in question, but it was found by the investigating officer and that was later to be found by the court that actually ran the trial, criminal trial, that the weapon that were in the possession of the accused as a member of the unit, was actually used in these other incidents and that is why he was also convicted of these incidents as well.

CHAIRPERSON: And that incident relates to the tavern incident, which is the 26th December 1988

MR SHAI: And the 22nd of February 1989.

CHAIRPERSON: And crisply, the reason you are advancing is that it is the applicant's contention that he did not personally participate.

MR SHAI: That's correct, Madam Chair, but as a member of the unit he indirectly participated.

CHAIRPERSON: How?

MR SHAI: In the form of them actually being in possession of the same weapons that were used in all these incidents and in the form of the unit, whose membership they had, taking part in the incidents.

MR LAX: Surely ex post facto possession of those firearms isn't participation, even indirect.

MR SHAI: That is my submission, but if one looks at the way it was actually connected to these other incidents which led to his arrest, one would actually see the chain as being that because he was a member of the unit and if one looks at the bundle that is before the Committee, the chain of reasoning was because the firearm was used in this incident, then he surely should have some knowledge as far as these incidents are concerned and for that he actually had to be punished.

CHAIRPERSON: Yes, you are surely, Mr Shai, fully aware of the provisions of the Act with the granting of amnesty?

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: And you are aware of the requirements that an applicant has to satisfy in order to qualify for amnesty, so if your reasons can please be advanced in such a way as to enable us to assist you. Now you are talking about incidents for which he has not applied.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Now can you just give us a reason why he did not apply for those incidents?

MR SHAI: Madam Chair as, I alluded earlier on, when he made an application for this, he had in mind the question of full disclosure to the Amnesty Committee, but at the time of the application itself when he actually handed in the application, our instructions are, he was actually or his thinking was actually overshadowed by the requirement that in full disclosure he has to actually give the particulars relating to each and every incident and as such ...(intervention)

CHAIRPERSON: He had the presence of mind that full disclosure required him to particularise all the incidents for which he wanted to seek amnesty?

MR SHAI: No, what happened in each and every incident, not exactly that he has to particularise the incidents themselves in the application, but as far as the activities that were involved in the incident.

CHAIRPERSON: In each and every incident?

MR SHAI: In each and every incident.

CHAIRPERSON: We want to hear you properly with regard to that. Yes?

MR SHAI: Then in the light of the fact that he was not involved in the two incidents that I've actually mentioned, he came to the conclusion that he won't be allowed to actually make an application for the incidents involved.

CHAIRPERSON: Why? Because he was not involved?

MR SHAI: Because he was not personally involved. That was his line of reasoning, according to our instructions, Madam Chair.

MR LAX: Sorry, Mr Shai, did I hear you right? Did you say he won't be involved, not he wanted to be involved. I just couldn't hear it properly.

CHAIRPERSON: He was not involved.

MR LAX: Ok, thank you.

CHAIRPERSON: Yes, you may proceed Mr Shai.

MR SHAI: Then my submission is the following. In the light of the fact that the incidents are intertwined as a result of him being a member of the unit and in the light of the fact that the firearm ...(intervention)

CHAIRPERSON: Just hold on a second. In the light of the fact that the incidents are intertwined because of the usage of the firearm.

MR SHAI: The usage of the firearm and he being linked to these two incidents by means of forensic evidence, that is our instructions, and he was ultimately convicted for these incidents as well, then he wants to bring an application for these two incidents as well that were mentioned.

CHAIRPERSON: It is still his contention that he did not participate in any way whatsoever in relation to these incidents, is it not?

MR SHAI: Madam Chair, when we actually consulted with him, we were not in possession of the bundle and after getting hold of the bundle ...(intervention)

CHAIRPERSON: No, you don't apply for amnesty because you are in possession of the bundle, you apply for amnesty because you believe that you are an offender and that the act that you have committed is an act associated with a political objective as defined in the Act. Forget about the bundle, forget about the forensic evidence, we want to know whether he himself believed that he is qualified to apply for amnesty because of what he has personally done.

MR SHAI: Madam Chair, that is the position. The reason why I mentioned the bundle was, after getting hold of the bundle, we actually consulted with him again and he still maintained, I think that the question for Madam Chair was whether he still insists that he was not personally involved. The reason why I mentioned the bundle was, even after we acquired the bundle and consulting with him, he still maintained that he was not personally involved in these incidents and he still maintained that he will actually move for an application for these incidents in which he was not personally involved, that is what we were instructed.

ADV BOSMAN: Does it not go further Mr Shai? Is it not that he did not even know that these incidents had taken place? That was my understanding. He did not even - apart from the information which he subsequently obtained, he did not know that these incidents had taken place. He had no knowledge of these incidents.

MR LAX: Just before you talk, your client's trying to draw your attention to something.

MR SHAI: ...(indistinct - microphone not on)

CHAIRPERSON: Yes, you may. Yes are you in a position to respond to Ms Bosman's question?

MR SHAI: I am indebted to the Committee. Is she referring to at the time of the making of the application or I don't get it clear?

ADV BOSMAN: Did he have personal knowledge of these incidents, of what had happened there or didn't he know at all? At any time. Did he at any time have personal knowledge of what had happened in the other incidents?

MR SHAI: In the form of him being involved, or in the form of him knowing what?

ADV BOSMAN: In the form of him knowing, and where did he obtain this knowledge?

MR SHAI: He says at the time of making the application, he knew of the incident and at the time of his being sentenced he knew about the incident, he had personal knowledge about the incident because they actually happened in the area in which he resided.

ADV BOSMAN: Then my next question is, did he obtain this information after the incidents had taken place or did he have knowledge that these incidents were planned and that they were going to take place?

MR SHAI: My instructions are, he knew before but he actually didn't know that it was carried out by members of the unit.

CHAIRPERSON: I thought, with due respect Mr Shai, and sorry to interpose, I thought when I questioned you with regard to this particular point, whether it was not his contention that he was never involved in any of these incidents for which he now intends to apply for their inclusion in his amnesty application, I thought your response was quite unequivocal, that he was never involved.

MR SHAI: And that is still the position. That's why I wanted some clarity on the question that she actually posed, because it could be before the application or after the incident had taken place, you see, that's why I wanted her to clarify as to at what stage the knowledge was actually acquired by the applicant because full knowledge, as far as the particularity of the incidents are concerned, according to our instructions, were actually heard of when he was actually standing trial for these incidents, among others.

CHAIRPERSON: Yes, you have also had recourse to the bundle, in particular the application form completed by him and signed on the 10th October 1996 that appears on page 4 to 6, and further to a profile or supplementation of that application which appears on page 8 - 9.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Yes, and you will agree with us that this supplementation was actually sent simultaneous with his form 2 application for amnesty.

MR SHAI: That will be correct, Madam Chair.

CHAIRPERSON: I wanted to confirm that because it is not apparent from the documents.

MR SHAI: No, that is what we were actually instructed.

CHAIRPERSON: Now that being so, may I invite you to go through paragraph 3, that is on page 9, it's the third paragraph, on page 9.

MR LAX: In the middle of the page.

CHAIRPERSON: Yes, right in the middle of the page.

MR SHAI: During interrogation?

CHAIRPERSON: Yes, now you see where he states quite early in his amnesty application that during his interrogation he was forced to admit and accept responsibility for other crimes he did not know. I quote him "I did not know (had no knowledge of)".

MR SHAI: That is correct, Madam Chair. In other words as I said to your colleague, Ms Bosman, the issue of when he came to the knowledge of the incident in question as far as time factor is involved, is essential. You see at the time of his arrest, as it is explained in that paragraph, he didn't know that there were other incidents he was actually linked to. Then it was during, I think somewhere in the middle of the same paragraph, he mentions that the results of the ballistic and forensic tests confirmed the places where the firearms were used.

CHAIRPERSON: Yes, I'm still not concerned with that.

MR LAX: May I just interpose Chairperson?

CHAIRPERSON: Yes, you may.

MR LAX: What didn't he know? Didn't he know that he was linked to those matters, or didn't he know about those matters, because from this document the issue seems to be that he didn't know about them at all, not that he didn't know that he was linked to them. Do you understand the difference?

MR SHAI: I have already alluded to that. I said that he said that he knows that such incidents happened in the area in which he resided, but he didn't have knowledge of the fact that his unit was involved in carrying out these activities.

CHAIRPERSON: Yes, he had no knowledge at all about the incident.

MR LAX: What he's saying, if I can just paraphrase, just so that we can be absolutely clear, because this is quite fundamental to your application, just let me finish, I'd hate to misrepresent what you're saying and get the wrong end of the stick here. What you're saying is, he heard these things happened, because they happened in the neighbourhood. He heard about the incidents, what he didn't know was that his unit was involved in these matters and he didn't know that they were going to happen and he had no involvement personally in them. Have I captured the essence of it?

MR SHAI: That is correct.

CHAIRPERSON: Yes, that's how I understand it. Now, just on that point, that being the case, what is the basis for your application to include these incidents in his amnesty application?

MR SHAI: Madam Chair, as I have already mentioned that the problem that is actually entailed or inherent in an application for this incident would be encompassed in the requirement for full disclosure, to start with.

CHAIRPERSON: No, if he applies for amnesty in respect of these incidents, that is because he accepts responsibility, that is because he is admitting to his involvement in the commission of the offences arriving out of those incidents and the way I understand you and I seem to be understanding you quite clearly, is that he is still contending that he never participated in any of these incidents in question.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Now, you are the lawyer assisting Mr Zwane, you know the requirements of Section 20 sub-section 1 of the Act, don't you?

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Now in the light of the requirements of Section 20 sub-section 1 of the Act, on what basis can you bring such an application to include incidents for which he disclaims responsibility, which he says he never committed? He never participated in any way whatsoever in their commission.

MR SHAI: Madam Chair, in - there is actually an affidavit that was drafted. We actually drafted that affidavit after consultation with him, and in that affidavit, I think I gave a copy to the legal rep. for the victims and I faxed one to the Evidence Leader and I've got copies here for the Committee as well, we actually grappled with that issue as well, as to how he comes to be making application for the incidents as well if he didn't actually have personal knowledge of what actually transpired in the activities leading to the said incidents. Now his contention is, because they were committed by members of the unit, of which unit he was actually a member, whatever was found to have been carried out by the unit, he also could be held accountable for that.

CHAIRPERSON: ...(indistinct - mike not on)

MR SHAI: That is correct, but he knew what his unit was actually - that his unit was in possession of firearms and that they were using the firearms, even though he himself was not present.

CHAIRPERSON: He did not know that his unit was going to commit these incidents, that is the evidence you have just presented to us.

MR SHAI: It is my instructions as well, Madam Chair.

CHAIRPERSON: Yes, now on what basis can he then seek an application to include the incidents for which he has no personal knowledge? What would be the basis for including those incidents for an amnesty application? How is he going to satisfy the requirements of Section 20 sub-section 1 if he is going to say, I did not commit, I have no knowledge, I only became aware that my unit was involved after the operations had been carried out?

MR SHAI: Madam Chair, may I just put it in the following manner? At the time of the commission, he was still a member of the unit and the firearms that were used in commission of these offences, he had knowledge of and the members who were carrying out these activities were part of his unit and at the end of the day the activities that were actually found to have been carried out by members of the unit were also attributed to him. My contention as far as these incidents are concerned, using the very same line of reasoning that seems to be running across the reasoning in the trial itself that led to his multiple convictions and sentences as well, is because that unit was responsible for the commission of these offences, even though he himself didn't have personal knowledge of what was actually going on, but he knew what the unit was actually up to.

CHAIRPERSON: No, may I interpose? He knew what the unit was up to? That was not your submission.

MR SHAI: Not specifically to these incidents. He knew that they were in possession of firearms and he knew what these firearms were being used for.

CHAIRPERSON: He knew that the unit possessed firearms.

MR SHAI: That he knew.

CHAIRPERSON: It changed hands.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: He did not know that members of that unit were going to commit any of the offences which came as a result of the incidents that you are now seeking to apply for an amendment.

MR SHAI: That is correct.

CHAIRPERSON: That's very fundamental.

MR SHAI: May I just beg your indulgence to converse with him?

CHAIRPERSON: Yes.

MR SHAI: I am indebted to the Committee. Madam Chair, his contention is and I think it is at the cost of actually repeating what I've already said. Madam Chair, he says, in short, at the time when they were planning these activities that led to the incident he was not personally involved. At the time ...(intervention)

CHAIRPERSON: At the time when the members of his unit were planning these incidents, he was not present, he was not involved.

MR SHAI: Yes, these specific incidents and at the time when these activities were carried out, he wasn't involved, but now because it's common cause, he's not going to dispute that, it's common cause that the unit was involved and for each and every incident that was carried out, not all members, as one will actually go through the affidavit, not all members were actually involved in carrying out these activities, but as a member of the unit that carried out these activities and he knew that they were involved in such activities, not specifically these ones but related activities, then he himself takes responsibility for whatever incidents occurred as a result of the activities of the unit itself, that is in short.

CHAIRPERSON: Yes. He can be in no position to say what really motivated the members of his unit to commit the deeds which he ultimately was convicted for, can he?

MR SHAI: May I just?

CHAIRPERSON: No, I mean based on what you have said, you can respond. This I'm taking from the submission. Your line of submission. He did not, he was not involved in the planning, he was not involved in the commission of these offences, so he is in no way able to satisfy any of the criteria in terms of Section 20 sub-section 3. He doesn't know what really motivated them at the time when they did, to commit these offences, all he can say is that these offences were committed by members of his unit and he came to know of that when he was arrested for a particular offence which is unrelated to these incidents.

MR SHAI: That is correct, Madam Chair, but over and above that, over and above the fact that he actually cannot say whether they were politically motivated or whether there was some other form of motivation, when these incidents were carried out, he knew that the unit itself was involved in political activities.

CHAIRPERSON: Yes, the unit was involved in activities such as these, as is reflected in these incidents.

MR SHAI: That is correct, Madam Chair, but as far as whether a specific motive could be actually attributed to an incident, he doesn't have knowledge as far as the two concerned.

CHAIRPERSON: Yes, and you will be in no position to give us details of how these incidents occurred?

MR SHAI: You see, that's why initially I said the problem that I actually pinpointed was as to full disclosure and that element that was actually mentioned falls under the very same category of full disclosure because then particularity of how the incident took place can never and we never actually in our instructions came across any of them.

CHAIRPERSON: So you would obviously fall short of that?

MR SHAI: Madam Chair, that is my submission.

CHAIRPERSON: Yes. And what do you say to the fact that Section 18(1) provides for the period within which to apply for amnesty in respect of any act, omission or offence? Do you think, if we were to allow you to include these incidents, we would actually be acting within the provisions of the Act?

MR SHAI: Madam Chair, I will submit that you will be acting within the provisions of the Act in the following manner. In the first instance, he is not an applicant who brought an application after the cut-off date.

CHAIRPERSON: Yes.

MR SHAI: And in his application for the one incident that is mentioned in his application, some averments are made relating to the other incidents and if one were to look at the application itself, on page 6 of the bundle,

CHAIRPERSON: What paragraph?

MR SHAI: That will be paragraph number 12, relating to the prosecution. He knew that he was actually convicted and sentenced for murder, attempted murder, arson, possession of firearms and ammunition.

CHAIRPERSON: Yes.

MR SHAI: He knew that arson related to the incident on the, my submission the 22nd February 1989, that will be the petrol bomb incident, if one were to look at the annexure that starts at page no. 8, the paragraph that was actually referred to, the predicament in which he found himself is actually mentioned in that paragraph, because he didn't know of the incident. It's a matter of him knowing that maybe I can bring an application.

CHAIRPERSON: Maybe I can bring an application, not that I'm bringing an application?

MR SHAI: No. I'm now referring to after, before our consultation with him. Now the problem was because he didn't know personally, but he knew that they were actually related to the very incident that he was actually seeking amnesty for, because in that very same paragraph he actually refers to this specific incident and he refers to the issue of ballistic tests, so at the time of the application itself, the information that he is actually disclosing for amending the application, is actually entailed in the very same application for this first incident, so it's not a matter of him actually bringing information that was not actually brought at the time of the application. The information is there and so it doesn't actually fall beyond the cut-off date. That would be my submission, Madam Chair.

CHAIRPERSON: Let's take your argument in seriatim. You've referred us to page 6 paragraph 12. Now the question which is being asked of him is whether any prosecution followed. Now, and if it did, it was in respect of which charge?

MR SHAI: Madam Chair, on the very same prosecution that is listed under number 12 and I had the privilege of actually going through the bundle and the court proceedings and he was actually convicted of all these charges that he actually alluded to under paragraph number 12 and he was sentenced therefore.

CHAIRPERSON: Yes, I'm aware of that. Now let's go back to the question that specifically asks him to give details of the act, omission or offence for which he seeks amnesty, which is paragraph 9. Now where the section, the paragraph 9 (a) says furnish sufficient particulars of the act, omission or offence, associated with a political objective in respect of which amnesty is sought including dates, places and nature thereof. Do you see what he has written thereunder in response thereto?

MR SHAI: He has written "murder of three municipal policemen and a passer-by".

CHAIRPERSON: Yes, he's been quite precise. He specifies the offence.

MR SHAI: That is correct.

CHAIRPERSON: And under (ii), same paragraph he also goes on to specify the date on which that particular offence was committed, and he's been also very specific in relation to the offence. The date corresponds to the murder of the municipal policemen and with regard to the question that sought for particulars with regard to the place where the offence was committed, he has also been quite specific and that refers to the killing of the municipal policemen at Meadowlands.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: And in response to paragraph 9(b), which asked him to state whether any person was injured, killed or suffered any damage to property as a result of such acts, omission or offences, his response has also been very specific and precise,"two municipal police died, or three, and a passer-by."

MR SHAI: That is correct.

CHAIRPERSON: Now, what do you say to the information that's provided? Is there anything else that he has mentioned under those paragraphs that will then suggest that he had the presence of mind or the intention to include any other incident other than the attack on the municipal police and a passer-by on a specific day at a specific place?

MR SHAI: It's my submission that this is the only incident in which particulars are actually furnished and as far as the other incidents are concerned, no particulars are furnished.

CHAIRPERSON: Nor are they referred to in any of his applications. I'm now dealing the form 2 application.

MR SHAI: No, they are not referred to.

CHAIRPERSON: Now you've also referred to the supplementation which is referred to as a profile by him, which appears on page 8 and 9, and your submission is that he has referred to these incidents and the fact that he has referred to them therefore makes him - gives us jurisdiction to hear them because he made mention of them in his supplementation and you bring that to the fact that he made mention thereof, on page 9 which is right in the middle, to the passage which I previously and initially referred you to, which is the fact that he admits that he did confess to the commission of the crimes under duress.

MR SHAI: That is correct.

CHAIRPERSON: And you've further submitted today that that confession he no longer stands by because he has no personal knowledge of the offences, for which he ultimately confessed because he so confessed under duress when he was tortured at the hands of the police.

MR SHAI: That will be correct.

CHAIRPERSON: Now if that is so, obviously there would be no basis for him to apply for amnesty because he still stands by his contention that he knew nothing of the incidents in question, he never participated, he was not involved in the planning thereof and does not associate himself with those incidents. His only connection is that the firearms which were used in these incidents are the firearms that belonged to his unit.

MR SHAI: Madam Chair, I think in my submission I have actually mentioned that he says that he takes full responsibility for whatever it is that the unit was actually involved in.

CHAIRPERSON: You understand the Act, what would be the basis of him taking full responsibility if he did not participate in the planning, he never directed, he never advised, he never committed the offences. Forget about the fact that he was a member of a unit whose firearms were found in his possession.

MR SHAI: Madam Chair, if I were to answer by way of an example, if one is a member of a unit and the unit has to actually carry a certain activity at a certain place, and it's actually known as a general mandate, it's known to the members of the unit that these are activities that this unit is carrying out, then in the course of pursuing whatever it is that they are pursuing under a general mandate, they come across an unintended target and the person who's a party to the planning, is not part of the group that is going to carry out the mandate and as such, a person who I've referred to as an unintended target, is killed, my submission is, the person wouldn't be in a position to actually particularise the manner in which that person was actually killed and the motive, my submission is the motive wouldn't be known to the person who would be making application for amnesty for that specific killing of the unintended target. Now, at the end of the day, we have a unit that was carrying out its activities under the general mandate and one of the unit members who was not present, is now facing the Amnesty Committee for an application for that specific incident. My submission is the following. As far as that incident is concerned, that person won't be in a position to actually give full particulars of how it actually happened and in a way, at the end of the day, the person will only tell the Committee about what he heard ex post facto. My submission is, if one were to look at the position the applicant is in at the moment, in a way he is in the same position in that he can't actually tell the Committee what is it that actually prevailed when these incidents took place, but he knows for a fact and that is why he says that he's taking full responsibility of whatever it is that actually emanated from activities of the unit itself, because he knows what their motives were, as a member of the unit, but as far as the carrying out of these specific activities are concerned, then my submission is, his position is much the same as the position of the incident that I actually used in my hypothesis.

MR LAX: Mr Shai, sorry. The analogy that you try to use is a faulty one, with the greatest of respect. If someone's involved in the planning and then the operation goes haywire and somebody is killed who wasn't intended, that's very different to somebody in the position of your client. Your client wasn't involved in the planning, he had no prior knowledge of these incidents, he didn't participate in any way, so the misdirected target, or the aberratio as we call it, is very different to the analogy you use, or that is the analogy you're using. Your client's in a very different position. How can we impute some sort of vicarious responsibility for something he didn't even know about. Do you see our difficulty?

ADV BOSMAN: Mr Shai, can I put it to you this way, if you had these instructions in a court of law, would you be in a position to tender a plea of guilty on the charges?

MR SHAI: No, not at all.

ADV BOSMAN: This is part of my difficulty. Your client, by simply associating himself ex post facto, is not legally associated to that.

MR SHAI: Other than sticking to him being part of the unit that carried out the activities, as far as the knowledge is concerned, I don't think that I can go beyond that one.

CHAIRPERSON: We appreciate the difficulty in which you find yourself. You can take the matter no further, and I take it that you rest your submission.

MR SHAI: Right.

CHAIRPERSON: Ms Thabethe, do you have any responses to the submissions made by Mr Shai?

MS THABETHE IN ARGUMENT: Madam Chair, I would argue that clearly, as my learned colleague has indicated or alluded, the applicant has no basis for bringing an application because he was not involved, which is brought down to a denial of guilt and really, I don't see how his application can be granted. That's my submission.

CHAIRPERSON: Mr Shai, we are in a position to pronounce a decision in respect of your application for an amendment to include the incidents that you enumerated relating to the attack on a tavern on the 26th December 1988, the incident you refer to as a petrol bomb incident which took place on the 22nd December 1989 and the hand grenade incident which took place on the 1st April 1989 and the incident that took place in 1987, which was for possession of a firearm, being a scorpion and ammunition.

In order to properly and equitably determine whether it was ever the intention of the applicant to apply for amnesty in respect of these incidents, we must have recourse to the application form which the applicant completed, as well as the attachments thereto, which can either be referred to as his supplementation or profile, as he so decided to state.

In terms of the application signed by Mr Zwane on the 10th October 1996 and in response to a question which required him to furnish sufficient particulars of the act, omission or offence in respect of which amnesty was sought, including dates and places and the nature of the act, omission or offence as contained in that paragraph, which is paragraph 9(a) of the application form, his response thereto was unequivocal, precise and specific and we quote his response: "murder of three municipal policemen and a passer-by".

He further responded to the question under paragraph 9(a)(2) and (ii) and (iii) with regard to the date and the place where this incident or act occurred, in the same unequivocal and clear tone and was clear as crystal that that was the only incident that he intended to apply for amnesty. On page 8 of the supplementation referred to earlier on, he gave facts with regard to inter alia how he joined the members of the Umkhonto weSizwe. What is however paramount and this is significant, is his specific mentioning of the offence, which is the subject of his application, namely again the murder of the three policemen and also alluded to the fact that an AK47 was used and that led to his arrest. In this regard we must however admit that there is an oblique reference to a grenade attack on a house in Orlando West for which the applicant then went on to say that he had been acquitted and this appears on page 9 under paragraph 4. There is also an oblique reference to other crimes in respect of which he stated that he was coerced, through torture by the police, to confess to having committed but of which he had no knowledge whatsoever, and in fact knew nothing about. This appears on the 3rd paragraph of the same page 9.

Against this background, we now turn to deal with the requirements of the Act. In terms of the Act an application must relate to a specified act, omission or offence. In terms of Section 18 a specified act, omission or offence must be a subject of an application for which amnesty is sought. That it was the clear and unambiguous intention of the legislature to require an applicant to disclose a specified offence for which he seeks amnesty, is quite evident from the reading of Section 18(1) read with Section 20 sub-section 1, Section 20 sub-section 2, Section 19 sub-section 6, Section 19 sub-section 7 and Section 20 sub-section 25. In deciding the application for an amendment brought by the applicant to include the incidents which occurred at different places at different times and committed against different persons other than those stated in his application, this Committee has carefully considered the application form, as completed by the applicant on the 10th October and his supplementation, as contained in the bundle. We are satisfied that the applicant only specifies the offence relating to the killing of the two or three municipal policemen and a passer-by and that this is the only offence for which this Committee has jurisdiction to hear and consider his application with a view to either granting or refusing him amnesty.

MR SHAI: As the Committee pleases.

CHAIRPERSON: I am still proceeding Mr Shai. The applicant has not applied for amnesty for the other offences and the period within which he had to so apply in terms of Section 18 sub-section 1 of the Act as amended, has long expired. He had to so apply between then 14th December 1995 to the 30th September 1997 and his failure to so apply has disqualified him to have those offences committed by this Committee. In the premises we have no jurisdiction to consider his amnesty application in relation to these offences as he did not apply within the prescribed period.

We must emphasize the fact that we only apply the law as we find it, particularly where it is as clear and unambiguous as Section 18 sub-section 1 of the Act is. Having regard to the provisions of these sections, it is quite evident that any application sought to be made by the applicant for amnesty in respect of any particular act, omission or offence, on the grounds that it is an act associated with a political objective, cannot and accordingly does not succeed.

What is however also interesting in the application brought by Mr Shai on behalf of Mr Zwane, is the fact that the applicant contended that he never participated in any way whatsoever in the commission of the incidents for which he now seeks to apply for amnesty. It is his contention that he was never involved in advising, planning, directing, commanding, ordering or committing the said offences and in that regard, and that regard only, he would not in any event have satisfied the requirements of Section 20 sub-section 1 of the Act.

The application for an amendment to include the incidents already alluded to is therefore refused.

MR SHAI: As the Committee pleases.

CHAIRPERSON: We may now proceed to hear the application which is properly before us. To enable the parties to probably properly present the application, maybe we must take a short adjournment, Mr Shai.

MR SHAI: That is correct, Madam Chair, but I actually conversed with the legal rep for the victims and I think he indicated to me that he actually received instructions from some families of the victims in this specific incident, so I don't know whether that is still the position or whether it's changed.

CHAIRPERSON: Yes, Ms Thabethe, I've also had an opportunity to communicate with the legal representative my learned colleague has referred to and I explained to him that there is only one victim's next of kin and all the victims in this matter are deceased and I will be in a position to - I have spoken to the deceased's next of kin and I was not aware of any instructions. I would like to ask for an adjournment however.

CHAIRPERSON: Before we bring these proceedings to a close, that is with regard to an application brought by Mr Shai to amend the application to include the incidents that he has already referred to, maybe this is an opportune time to request the legal representative who is sitting next to Ms Thabethe to place his name on record.

MR ALLI: Thank you, Madam Chair, my name is Mr Fayaz Alli, it's spelled F - A - Y - A - Z, surname A - L - L - I. I'm from the Wits University Law Clinic.

CHAIRPERSON: Yes. Whose interest were you representing Mr Alli?

MR ALLI: Madam Chair, I've been asked to assist the family of Chili.

CHAIRPERSON: Yes. I note Mr Alli that there was a colossal procedural mistake by Ms Thabethe's office in having to purportedly serve notices in terms of Section 19 (4) to persons who you represent, who unfortunately have no interest whatsoever with regard to the offences disclosed in the amnesty application of Mr Zwane as it was presented before this Committee. We do not comprehend on what basis the victims were informed of their right to be present at this hearing and what testimony was envisaged to the adduced from all these victims by Ms Thabethe, for purposes of enabling this Committee to consider and decide the application as it presently stands before us. It is not for you to respond to all these questions that we have in our minds as a Committee, it is for Ms Thabethe to do so. All we can do as a Panel is to express our apologies for this mistake and hope that it doesn't happen again to you.

MR ALLI: Thank you, Madam Chair. If I may just add in, we were informed in fact that the proceedings may not take place in that the application for the amendment of the amnesty application may not have been granted and we chose to come anyway, so on that basis I'd request that Ms Thabethe be excused for any wrongdoing on that basis. In fact we were informed and we chose to come anyway, in the event that perhaps we have a better understanding of the proceedings from the beginning.

CHAIRPERSON: In that case we'll accept the reasons you advance on behalf of Ms Thabethe.

MR ALLI: Thank you.

CHAIRPERSON: That's very kind of you.

MR ALLI: Pleasure.

MS THABETHE: I would like to thank my learned colleague.

CHAIRPERSON: Where does this take us now? Can we take a short adjournment?

MS THABETHE: I would suggest so Madam Chair.

CHAIRPERSON: We will then, Mr Shai, you can raise whatever question you wish to raise with regard to the proper service of notice, if you so wish, after we have taken a 5 minute adjournment. We'll take a five minute adjournment.

MS THABETHE: As the Committee pleases.

CHAIRPERSON: We shall now proceed to hear the amnesty application of Mr Charles Bongane Zwane with regard to the incident relating to the killing of some municipal policemen and the killing of the following people : Jabulane Mgoma, Nicholas Masangwa Tshabalala and Masango Nimrod Umkomanda and the attempted murder of Umbulelo Kapo which is an incident which occurred on the 20th January 1989 at Meadowlands in Soweto. Mr Shai you are on record as appearing for Mr Zwane in this matter, is it not so?

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Ms Thabethe, are we in a position to commence? Have victims in relation to this incident been properly served with section 19(4) notices?

MS THABETHE: Madam Chair, in an attempt to answer your question, maybe I should just inform the Committee what the TRC tried to do to locate the victims. Fortunately I've got next to me our Investigator, Eddie Kalusa, whom we sent the notices to on the 2nd July. He tried to trace the victims. He went to the Meadowlands Police Station where he was told that the three deceased were not from Johannesburg. Mr Masango, Nimrod Umkomanda, was working in Johannesburg, but he came from Transkei and they did not have any addresses in Transkei of his relatives. Nicholas Masango or Nicholas Masango Tshabalala is from the Northern Province. That's all they know. They didn't have addresses for him. Jabulane Mgoma, fortunately Mr Nhlanhla Mlojwa, his brother, is present today, he responded to the advertisement that we made after trying to trace the victims. Also with Umbulelo Kapo, Madam Chair, he has since been deceased. He was injured in the incident. Apparently his relatives are somewhere in the Transkei, so we did make an advertisement in the paper in trying to locate them, so there's only one victim's next of kin who is present today.

CHAIRPERSON: When did Mr Calusa visit the Meadowlands Police Station with a view to ascertaining the whereabouts of the families of the deceased?

MS THABETHE: Madam Chair he says it was on the 3rd of July, it was on the 5th of July Madam Chair. Sorry Madam Chair, he says it was on a Monday, I'm trying to ascertain the date. It was Monday the 5th Madam Chair.

CHAIRPERSON: 5th of July?

MS THABETHE: Yes, Madam Chair.

CHAIRPERSON: Now what media was used to advertise for the Transkei area?

MS THABETHE: Madam Chair, Radio Xhosa was used.

CHAIRPERSON: When?

MS THABETHE: Unfortunately Madam Chair, I don't have the dates, but Mr Calusa tells me that it was immediately because he contacted Pila, our media person, so I would say maybe two days thereafter, which would be the 7th. I've got a note here saying that Radio Xhosa was used, Radio Ukhosi, Radio Lotus, Durban Youth Radio and Iswe Lomsanzi.

CHAIRPERSON: Now what radio station was used with an intention of conveying this notice and bringing it to the attention of the relatives of Mr Tshabalala, who were located to be around the Northern Province? From the radio stations that you have stated, there doesn't appear to be anyone that would be operating specifically in the Northern Province.

MS THABETHE: Unfortunately Madam Chair, I'm not familiar with the radio stations but these are the radio stations that I've read, so I don't know whether Radio Zulu and Xhosa there is a broadcast in the Northern Province or not, I really have no idea.

MS THABETHE: Ms Thabethe are you aware that the Northern Province is largely Northern Sotho?

MS THABETHE: No, Madam Chair.

CHAIRPERSON: So how can you expect people who are speaking Sepedi to be listening to Zulu, that they probably don't even understand? That's not a cosmopolitan area.

MS THABETHE: Like I say, Madam Chair, I'm not familiar with the media logistics, unfortunately.

CHAIRPERSON: You now have an obligation to satisfy this Panel that a proper notice was served or sufficient and reasonable steps were taken to ensure that this hearing was brought to the attention of the relatives of the deceased.

MS THABETHE: Madam Chair, I have nothing else to say.

CHAIRPERSON: Who can be in a position to advise this Committee because we are enjoined by the Act to make sure that where people's interests are involved, the relatives of the victims are advised of their right to be present at this hearing. It's a peremptory provision of the Act.

MS THABETHE: Madam Chair, if you can give me an adjournment, I'll try and find Mr Pila, maybe he can shed some light. Like I've said, I really don't have an idea as to which stations were used in Gauteng.

CHAIRPERSON: Yes, and when?

MS THABETHE: And Northern Province.

CHAIRPERSON: Yes. We'll take a lunch adjournment to enable Ms Thabethe to get the necessary information because it is important for the Committee to be satisfied that the Act has been complied with before proceeding to hear the application of Mr Zwane. I hope the members of the public will accommodate these teething problems. We'll, instead of adjourning, simply take a lunch adjournment and reconvene at half past one.

CHAIRPERSON: We now have to proceed with the application of Mr Bongane Zwane. When we adjourned shortly before lunch it was by agreement that this matter will resume at half past one. This was made quite clear to the legal representative of Mr Zwane, that the Committee will be prepared and ready to proceed hearing evidence after Ms Thabethe's explanation with regard to the proper and reasonableness of the section 19(4) notices, had been given.

We were, however, extremely disturbed and distressed by the fact that when we had to come in at half past one, Mr Shai could not be located. His whereabouts were unknown and this Committee had to be kept waiting for almost 30 minutes. We take a very robust view with regard to such conduct. We would request Mr Shai to give us an explanation of this kind of misbehaviour.

MR SHAI: Thanks, Madam Chair. I have to start by apologising for the delay that I have actually caused and the consequences that resulted there from. Inter alia Madam Chair, the causes of the delay were, I had to, when we adjourned, I actually received a telephone call from my younger sister who is of Northern Province, with respect to some document that I had to go and collect at the Technikon Witwatersrand and then on coming back, the spot where I actually parked my car was taken by somebody else, I had to drive past the same building twice in order to and locate a spot where I could actually park. I am extremely sorry for the delay.

CHAIRPERSON: We find the reason that you have advanced not a very acceptable one. You are here to conduct a hearing on behalf of your client. Inasmuch as we appreciate the fact that you've got to render some service to your relative and your sister in this regard, we hope and trust that you know that your duty lies first with you providing proper and appropriate legal service to your client, Mr Zwane.

MR SHAI: I understand, Madam Chair.

CHAIRPERSON: We'll reluctantly accept your apology with a view of moving forward. We are a very short-lived Committee. We cannot afford to waste a second of our time. I hope I have made myself quite clear.

MR SHAI: That's clear.

CHAIRPERSON: Ms Thabethe when we adjourned you were going to seek certain particulars with a view of advising this Committee with regard to the service of 19 (4) notices as we are enjoined to so serve with regard to victims and the relatives of the deceased. In this case the relatives being those of Mr Mgoma, Mr Tshabalala, Mr Umkomanda and Mr Kapo. You are on record as having stated that Mr Mgoma is being represented today by his brother Mr Mgoma. You don't know whether the brother intends to oppose the application of Mr Zwane and we'd like to hear you with regard to the service of notices in relation to the other victims. You may proceed, the ball is in your court.

MS THABETHE: Thank you, Madam Chair. If I remember correctly, you had asked me a question about the Tshabalala family in the Northern Province. I would like to put it on record Madam Chair that our investigator, Eddie, did have an address where Mr Tshabalala lived before which was in Pimville. He went there and was told that a new family stays there now and they didn't know anything or the whereabouts of the family that lived there before. With regard to the advertisement that we did on the radio, I phoned Mr Mbulelo Sompetawu, who is our media liaison, to find out which radio station covered the Northern Province and he told me that an advert was done from the 2nd July onwards in the Tobela FM with regard to the Northern Province, yes.

CHAIRPERSON: We shall now proceed to hear viva voce evidence of Mr Zwane, but in doing so, this Committee will be mindful of the fact that there is a slight chance that the relatives of Mr Tshabalala may not have been able to capture the radio announcement as it was only done on the 2nd July and may indeed want to exercise their right as enshrined in our Act in section 19(4), to wish to oppose Mr Zwane's application. In the event of this being the wish of the Tshabalala family, this Committee has decided that Mr Zwane will have to make himself available to stand cross-examination if the Tshabalala family wishes to oppose and it is a substantive opposition. Do we have an understanding, Mr Shai?

MR SHAI: That is understood, Madam Chair.

CHAIRPERSON: Do you have any objection to that recommendation?

MR SHAI: No objection.

CHAIRPERSON: Thank you.

CHAIRPERSON: Ms Thabethe, with regard to Mr Mgoma who is here to represent the interest of the deceased Mr Mgoma, what is his attitude? Is he going to oppose Mr Zwane's application?

MS THABETHE: Madam Chair, I consulted with him. He told me that he is not in a position to oppose because he doesn't know anything as to what happened that day. He's merely here to find out exactly what happened that day.

CHAIRPERSON: Yes, we understand.

CHAIRPERSON: Mr Shai, may I now move ball to be in your court? You may proceed to lead your client. Do we have a supplementary affidavit that you've prepared?

MR SHAI: Thanks Madam Chair. Madam Chair, in the light of the fact that the initial application that would have actually entailed or that will have made the affidavit relevant, has been actually dismissed, we felt that it won't be proper for us to actually hand it in, but whatever was actually covered as far as the incident is concerned is covered in the annexure.

CHAIRPERSON: Yes, you will proceed to lead your evidence-in-chief?

MR SHAI: That is correct.

CHAIRPERSON: You may proceed to do so.

EXAMINATION BY MR SHAI: Just for the record Mr Zwane, where and when were you born?

CHAIRPERSON: May we, just before you proceed to do so, ask if he is going to give his evidence under oath.

CHARLES BONGANE ZWANE: (sworn states)

MR SHAI: Just for the record Mr Zwane, I said, where were you born and when? Yes, Mr Zwane, your birth place and birth date?

MR ZWANE: I was born in 1969 at Orlando West, Soweto.

MR SHAI: What standard of education do you have?

MR ZWANE: Can you repeat yourself please?

MR SHAI: How far have you gone in education?

MR ZWANE: I went up to standard 10.

MR SHAI: And at what school?

MR ZWANE: Orlando West High School.

MR SHAI: Now you are making application for an incident that took place on the 20th January 1989, is that correct?

MR ZWANE: Yes.

MR SHAI: During the commission of this crime or during this incident, were you a member of any political organisation?

MR ZWANE: Yes.

MR SHAI: Which one?

MR ZWANE: The African National Congress, Umkhonto weSizwe.

MR SHAI: Were you a card carrying member of the said political organisation, or were you just a supporter?

MR ZWANE: No, I wasn't a card carrying member.

MR SHAI: At what stage were you initiated into politics and how?

MR ZWANE: Around 1983,1984 somewhere there, I'm not precise.

MR SHAI: How did your initiation come about?

MR ZWANE: I started involving myself in school when I was still young and that is when I became aware of the political situation in South Africa.

MR SHAI: And how did you come to be a member or a supporter of the organization that you have mentioned?

MR ZWANE: A guy by the name of Rapumo Modegwane as a Youth Congress member ...(intervention)

CHAIRPERSON: May I interpose Mr Shai? Mr Zwane you are giving the translators some problems because you keep on switching the language you are adducing your evidence in. So decide which language you wish to stick to. You are free to use English, but if you so do, you'll have to proceed giving your evidence in English. However, if you elect to use your home language, which you indicated to be Zulu, we would request you to stick to Zulu because it will also make a havoc of our record and it's giving our translators a little bit of a problem because they don't know when to anticipate which language you are going to use, when.

MR SHAI: May I just question?

MR ZWANE: I'll be comfortable in English.

CHAIRPERSON: Yes.

MR SHAI: Now you were saying that you were recruited by some person. What's the person's name?

MR ZWANE: Rapumo Modegwane.

MR SHAI: That is to the Student Organisation?

MR ZWANE: No, as a Youth Congress member.

MR SHAI: Now in the MK structure itself as you alluded, how did you come to be a member?

MR ZWANE: I was also recruited by the guy with whom I was serving with in the Congress by the name of Umkojwa because he was first recruited by the MK cadres within the country and he then called upon me and we were both now working along with the MK cadres from outside the country.

MR SHAI: And do you mind maybe mentioning the cadres who were from outside?

MR ZWANE: Can you repeat yourself?

MR SHAI: The cadres you actually referred to, who were from outside, who were they?

MR ZWANE: It was Sonwabo, one of them and the other one it was his code name, I can't say his real name.

CHAIRPERSON: What's his name?

MR ZWANE: The first one is Sonwabo and the second one is just a V, that was his code name.

MR SHAI: Did they recruit you into a specific cell or unit?

MR ZWANE: Yes, in fact we were recruited to a specific unit.

MR SHAI: And how many members formed the unit?

MR ZWANE: It was up to the Commander, the Commander of the unit, because they were making the sub-units, so it was up to the Commander how many guys he would need. Sometimes we were being three, sometimes the others were being four in the unit, so there was no specific number.

MR SHAI: Are you referring to the specific unit into which you were recruited?

MR ZWANE: Into the one in which I was recruited there were three of us in that unit.

MR SHAI: And who are the other members?

MR ZWANE: It was myself, Sonwabo and Gybon Kubega.

MR SHAI: Now who was the Commander in the said unit?

MR ZWANE: It was Sonwabo.

MR SHAI: And do you know who he was actually reporting to, his immediate superior?

MR ZWANE: It was V.

MR SHAI: Did you yourself receive any training as far as the Mk activities were concerned?

MR ZWANE: Yes.

MR SHAI: When was it?

MR ZWANE: Though I can't recall the date, but it was back in, from, I started being trained from late 1980 ... 1980 ..., late in 1986.

MR SHAI: What kind of training did you receive?

MR ZWANE: I started by receiving training in firearms.

MR SHAI: And who trained you for that?

MR ZWANE: The guy by the name Oupa Alex Cie.

MR LAX: Sorry I didn't catch the surname, please just repeat it.

MR ZWANE: Oupa Alex Cie.

MR SHAI: And these members of your unit, Sonwabo and Gybon, do you know where they came from initially?

MR ZWANE: I didn't know, I didn't know.

MR SHAI: In other words, were they residing at the township in which you were residing, or were they residing somewhere else?

MR ZWANE: Within the township I was residing.

MR SHAI: Now what kind of weapons were you using during your activities as a unit?

MR ZWANE: AK47 rifles, Scorpion sub-machine pistols.

MR SHAI: Now we come to the incident itself or the incident of the 20th January 1989.

CHAIRPERSON: May I interpose? How did your unit obtain these weapons, the AK47 and the Scorpion machine guns?

MR ZWANE: I don't have any information. As a member of a unit I was just being offered the weapons when we had to go and lodge the operations.

CHAIRPERSON: Who was in control of these weapons?

MR ZWANE: My Commander, I was getting instructions from my Commander, Sonwabo.

CHAIRPERSON: So at no stage were you in personal possession of these weapons? Are you saying they were always under his control?

MR ZWANE: Yes, I was just getting the firearms when we were going to lodge the operations, then they were handed to me and other unit members.

CHAIRPERSON: Yes and these would be returned to the Commander immediately after an operation?

MR ZWANE: Yes.

CHAIRPERSON: You may proceed, Mr Shai.

MR SHAI: Thanks, Madam Chair. The incident on the 20th January 1989, will you please take the Committee through the planning and the actual carrying out thereof?

MR ZWANE: Well on the, what was the date, by the way?

MR SHAI: The 20th of January 1989.

MR ZWANE: On the 20th January 1989, my Commander came to me and he instructed me that I had to show them the places were we could find the policemen as our target and I told them that the place you can find most of the policemen is the Meadowlands area.

MR SHAI: And then from there?

MR ZWANE: From there we travelled by car. It was myself, my Commander Sonwabo and the other unit guy, Gybon Kubega. We patrolled the Meadowlands area up until we came across three policemen walking by foot. I showed the policemen to the guys, I said, "Here are these people" and then we stopped the car. We came out of the car. We said to Gybon he must live in the car because we couldn't go out of the car, three of us. Sonwabo took the AK47 and I covered him with two handgrenades, the offensive and the defensive, and we came near to the three policemen walking by foot and when we were closer to them, we started shooting at them.

MR SHAI: Were you looking for specific policemen or were you looking for any police officer?

MR ZWANE: Any police officer.

MR SHAI: Now why specifically police officers?

MR ZWANE: With my political understanding, I mean, the police by then were regarded as the pillars of apartheid, so they were some of the targets of Umkhonto weSizwe.

MR SHAI: Now you went out specifically to kill them?

MR ZWANE: Yes, of course.

MR SHAI: And then, take us from the time when you left the driver, that is Gybon, in the motor vehicle and you proceeded towards the police officers.

CHAIRPERSON: Shouldn't you, Mr Shai, for the sake of completeness and sufficiency of fact with regard to how the shooting took place, let him explain further and elaborate as to who shot who?

MR SHAI: That is where I want to take him.

CHAIRPERSON: Is that where you are getting to?

MR SHAI: That's correct.

CHAIRPERSON: I thought you were getting him away from the scene of the crime.

MR SHAI: No, I'm taking him out of the motor vehicle and he's proceeding to the police officers. Now you say, the two of you, that is yourself and Sonwabo went out of the motor vehicle and Gybon was left behind?

MR ZWANE: Behind in the car, yes.

MR SHAI: Now were you in possession of any weapons at that stage?

MR ZWANE: Yes. we were in possession of weapons. Sonwabo was in possession of an AK47 rifle and I was in possession of two handgrenades.

MR SHAI: Now who was in front and who was behind, between the two of you, Sonwabo and yourself?

MR ZWANE: Sonwabo was in front and I was giving him a cover, because he was the one to shoot and I was the one to give cover if the guys shoot back.

MR SHAI: And then you proceeded and who did the shooting?

MR ZWANE: We proceeded to the police up until we came closer to them and Sonwabo started shooting and one of them tried to run away and we also retreated back to the car immediately.

MR LAX: Just repeat the last part of what you said. One of them ran away and then I didn't hear the rest of it I'm afraid.

MR ZWANE: While Sonwabo was busy shooting, one of the three policemen tried to hide himself with a car, there was a car next to where we were shooting them and we realised that it was dangerous now because we didn't know whether he was shot dead or what, we were forced to retreat back to the car.

MR SHAI: Now there was a passer-by who was also killed in the incident. Do you know how it came about that this person was shot and killed as well?

MR ZWANE: Yes, I know.

MR SHAI: How did it come about that this person was also killed?

MR ZWANE: After shooting the three policemen, retreating, there were people in the houses next to where we shot the people and they tried to stop us say, "hey, hey" making noise you know people.

CHAIRPERSON: May I interpose? It has just been brought to my attention that you are seated there with leg irons on your feet. May we request the members of Correctional Services to remove those irons, to enable the witness to be free enough to give evidence, unhindered by such leg irons?

MR ZWANE: Thank you.

MR SHAI: From the killing of the civilian.

CHAIRPERSON: Yes.

MR SHAI: Ok, I was saying that it's common cause now that a civilian was killed in that incident. Do you know how it came about that this civilian was killed as well?

MR ZWANE: Yes, I know how. After shooting the three policemen, there were people who were sitting in their houses next to where we shot the policemen and when we were retreating back now to the car, those people were, they sort of attempted to stop us, making some noises and we realised that it will be hard for us to retreat back to the car and Sonwabo shot also on them just scaring them so that we could get our way to the car and I should think the passer-by was shot during the attack.

CHAIRPERSON: Won't you just give us more facts? Where were these people at the time when the shooting of the policemen took place?

MR ZWANE: They were sitting, there were houses next to where we shot at the policemen, so they were sitting outside those houses there.

CHAIRPERSON: How far were these houses from the spot where these policemen were shot at?

MR ZWANE: I would like to make the example with the house.

CHAIRPERSON: Yes.

MR ZWANE: Maybe the police were shot next to this crate and the people were sitting there on the TV camera guy there. Those people were sitting there, the police were shot in this area.

CHAIRPERSON: Would 6 paces be about the appropriate estimate, from there to there?

MR ZWANE: Yes, of course.

CHAIRPERSON: Yes. Mr Shai, I would approximate that to be about 6 paces. Ms Thabethe? About 6 paces?

MR SHAI: About.

CHAIRPERSON: Yes, about 6 paces. Now were these people outside a particular house? You are referring to, you are talking about people who were seated outside a number of houses.

MR ZWANE: I would not understand whether it was a particular house because it's a hostel sort of place, in fact.

CHAIRPERSON: Yes. I mean the houses you are referring to, are they still part of the hostel?

MR ZWANE: Yes it's a hostel.

CHAIRPERSON: Are they still part of the hostel?

MR ZWANE: They are still part of the hostel.

CHAIRPERSON: Yes. I had a different understanding. I though these were ordinary houses in a residential area.

MR ZWANE: No, it's a sort of a hostel.

CHAIRPERSON: Yes. And how many were there? Can you estimate how large a group was it?

MR ZWANE: It was not such a large group, if my memory serves me well.

CHAIRPERSON: Were there three, four, more than four?

MR ZWANE: About three or four.

CHAIRPERSON: And what were they actually doing?

MR ZWANE: In fact I would say they attempted, I don't know how can I put it, because they made noise, you understand, when something is happening people say, "hey, hey, hey," understand? We don't know whether they're attempting to stop or what, understand?

CHAIRPERSON: Yes.

MR ZWANE: While we were retreating back.

CHAIRPERSON: They just said, "hey, hey, hey?"

MR ZWANE: Yes, understand, that noise like they wanted to ...

CHAIRPERSON: And as they were shouting and screaming "hey, hey, hey," that was in response to your shooting the policemen?

MR ZWANE: On our retreat now, we had already shot the police.

CHAIRPERSON: And the shooting had stopped?

MR ZWANE: The shooting had stopped.

CHAIRPERSON: And you were retreating?

MR ZWANE: We were retreating back to the car now.

CHAIRPERSON: Yes, and did they do anything other than shouting or screaming "hey, hey, hey?"

MR ZWANE: There's was nothing that they will do, they just screamed.

CHAIRPERSON: Now what made you to shoot in their direction?

MR ZWANE: Well, because I didn't shoot, but personally what I think, Sonwabo was just scaring them for us to get a good retreat, understand, safely to the car.

CHAIRPERSON: Did they advance towards you?

MR ZWANE: No.

CHAIRPERSON: You may proceed, Mr Shai.

MR SHAI: At what stage did you become aware of the presence of the civilians?

MR ZWANE: In fact I wasn't aware that there were any civilian up until I was charged and went to the court, that there's a civilian who died there. I wasn't aware that a civilian was killed there.

MR SHAI: Yes, but at what stage did you become aware of their presence, in other words, during the operation itself at what stage did you ...(intervention)

MR LAX: He's just told us he wasn't aware of them. Did you only become aware. ...(intervention)

MR SHAI: He's only aware of the killing.

MR LAX: Sorry, did you only become aware that there were civilians there when you were actually at the trial and you heard that information?

MR ZWANE: Yes, I became aware on the court trial that there's a civilian who died at the incident.

CHAIRPERSON: But I think what your counsel wanted to elicit from you, you will correct me if I have not comprehended your intention correctly, I think you intended to elicit the information with regard to at what stage did he initially become aware of the presence of people in the nearby houses around the hostel.

MR SHAI: That is correct, Madam Chair.

CHAIRPERSON: Yes.

MR ZWANE: Can I answer that?

CHAIRPERSON: Yes.

MR ZWANE: I became aware of the presence of those people when we were retreating back. When we were lodging the attack, advancing to the police, I didn't notice them.

CHAIRPERSON: And when they were screaming "hey, hey, hey," as you were retreating.

MR ZWANE: It's when I started looking on the other side and I started seeing the people there.

CHAIRPERSON: Yes. That has been covered Mr Shai. Proceed.

MR SHAI: Thanks, Madam Chair. And you were finally arrested and arraigned with the murder of these three people, correct?

MR ZWANE: That's correct.

MR SHAI: And what was the sentence?

MR ZWANE: It was a death penalty.

MR SHAI: For each?

MR ZWANE: For each murder.

MR SHAI: Was it ever commuted to a life sentence?

MR ZWANE: No.

MR SHAI: Are you sure?

MR ZWANE: I'm sure.

CHAIRPERSON: Did you understand what your counsel ...(intervention)

MR ZWANE: Yes, I understand. Yes I understand what he said.

CHAIRPERSON: Yes. Your death was commuted to life, otherwise you would not be here.

MR ZWANE: I'm here, I'm here today.

I'm sorry, I'm sorry, I'm serious.

CHAIRPERSON: No, I think Mr Shai will be able to come to our rescue, because that's our understanding.

MR SHAI: That's correct.

CHAIRPERSON: In any event we know it's common cause.

MR SHAI: It's common cause but just for the record, actually my instructions were he doesn't actually know whether it was granted, but just for the record.

CHAIRPERSON: Yes, I think he is a lay man and he doesn't understand the legal implications. You will serve him however even more if you had to explain some of these intricacies.

MR SHAI: To him?

CHAIRPERSON: Yes.

MR SHAI: May I just lead him, or just leave the matter there or should I take it further?

CHAIRPERSON: It's not relevant to the issues we have to decide, so you don't need to ...(intervention)

MR SHAI: Delve deep into it.

CHAIRPERSON: Yes.

MR SHAI: Thanks. Did you have any personal gain in the carrying out of this activity, financial or otherwise?

MR ZWANE: No.

MR SHAI: What was the only motive that actually led you to the killing of these people?

MR ZWANE: It was a political one, of course.

ADV BOSMAN: But what did you hope to achieve, Mr Zwane?

MR ZWANE: By killing the police. With my political understanding the police according to the teaching I've got, they were the pillars of apartheid by then, so by hitting them we were killing the stones of apartheid.

ADV BOSMAN: Thank you, you may proceed.

MR SHAI: And today you are applying for amnesty for the three murders, it's common cause.

MR ZWANE: Yes.

MR SHAI: Now what would you like to say to the victims and to the public at large?

MR ZWANE: To the victims and the public I would say, I wasn't born a murderer. I respect people's lives, but it was the situation, unfortunate. I'm sorry, I'm really sorry. I know how those lives were precious to their families that's why I'm very sorry. I wasn't going to go out and kill those people if the situation was not like that. I'm really sorry to the parents of those people and everyone.

MR SHAI: May we just pause for some few seconds?

MR ZWANE: I'm really so sorry to the victims' next of kin, really, it was the situation. I mean, I didn't come to this world to murder people. I know how valuable life is, but the political situation of the day forced, I'm really sorry. I know that my sorrow won't bring your loved ones back, but I should think you'll understand, you understand what was happening before. I'm really sorry, that's what I'm saying.

MR SHAI: Now over and above what you have told this Committee as far as the incident is concerned, is there anything that you would like to specifically disclose that will be relevant in the application?

MR ZWANE: No, I don't have anything to say.

CHAIRPERSON: That is your evidence-in-chief, Mr Shai?

MR SHAI: That is correct.

CHAIRPERSON: Yes. Do you think your witness is in a position to proceed to be cross-examined by Ms Thabethe, who I think will want to put a few questions to him?

MR SHAI: Yes, I'll just find out from him, Madam Chair.

CHAIRPERSON: Yes, you may do so.

MR SHAI: He says he's ready for cross-examination.

CHAIRPERSON: Ms Thabethe, do you have any questions to put to Mr Zwane?

MS THABETHE: A few, Madam Chair, thank you.

CHAIRPERSON: You may proceed to do so.

MS THABETHE: Thank you.

CROSS-EXAMINATION BY MS THABETHE: Mr Zwane, you've indicated that in your unit you used to do some operations, can you just explain briefly what kind of operations that you were involved in, in your unit?

MR ZWANE: Operations like for instance the one of the policemen.

MS THABETHE: Yes, I understand that. I mean generally, what was the function of your unit, you know, with regard to the operations that you used to do?

MR ZWANE: Would you please put your question the other way round for my better understanding of it, please?

MS THABETHE: Okay. What I want to ascertain from you, you've spoken about your unit and the fact that you used to do operations, right? What I'm trying to find out from you is, what kind of operations did you used to do? Not necessarily legal incidents maybe that were committed by your unit, just generally. For example with SDU's we know they used to defend the communities against, you know, that's what I'm trying to ascertain, the functions of your unit.

MR ZWANE: Okay. Okay I understand your question. Well I don't think I will be in the position to answer your questions because by the way, I was still a young kid. I was recruited and whatever I was doing, I was doing it on orders. Maybe my Commander will come to me and say "Bobo, I want you to go and do this operation" like that, understand? Generally I would not see what was the work of the unit.

CHAIRPERSON: When you were recruited by Sonwabo, was it not explained to you why you were being recruited? You have earlier on testified that you were recruited into a cell that comprised three persons, including yourself. Was it not explained to you at the time when you were recruited what function or functions would be performed by the unit you were to establish with Sonwabo? That is the crisp of the question.

MR ZWANE: No, Mummy, nothing was explained to me.

CHAIRPERSON: What were you told when you were recruited? You were to become a unit which would be doing what?

MR ZWANE: In fact what happened, Mummy, when I was recruited, I was an activist by then, and we were just taken with a friend, we were popular in fact in our area as a young activist. So what happened, we were taken by the cadres and we were trained by different cadres.

CHAIRPERSON: Surely you must have been told why you were being recruited?

MR ZWANE: I wasn't told. I wasn't told.

CHAIRPERSON: You were simply recruited?

MR ZWANE: Yes, of course.

CHAIRPERSON: Did you know who Sonwabo was?

MR ZWANE: Sonwabo? Yes I knew.

CHAIRPERSON: You knew that he was a member of MK?

MR ZWANE: Yes, I knew.

CHAIRPERSON: And yet you were not told what would be the specific function of the unit he was recruiting you to?

MR ZWANE: No, I didn't know the specific.

CHAIRPERSON: And you didn't ask?

MR ZWANE: No.

CHAIRPERSON: May I just request you to address me as Madam Chair?

MR ZWANE: Okay.

MR LAX: If I may interpose there Chairperson, just for a moment. Sorry Ms Thabethe. What did you think you would be doing when you were recruited. Not just - you were already an activist you have told us, so you were already part of youth structures and so on, what did you think you were going to do once you were recruited into MK?

MR ZWANE: What I thought, I thought I will be equipped with fighting material and I will be fighting, will be hitting whatever political targets available.

MR LAX: And obviously, as your training progressed, so you received further political education as to what the nature of your targets would be and what was acceptable and what wasn't?

MR ZWANE: In fact, I for one, I wasn't, maybe - there were no instances where I would go out and hit targets. What I was awaiting, we'll be coming from school, I would await my Commander to come and fetch me if there is something we need to go and do. I was just working on orders.

CHAIRPERSON: In what year did you say you were recruited by Sonwabo?

MR ZWANE: Please repeat yourself.

CHAIRPERSON: In what year did you say you were recruited by Sonwabo?

MR ZWANE: Sonwabo in fact, in the MK structure, I wasn't recruited by Sonwabo. Sonwabo, I met Sonwabo in 1988, November/December and by then I was trained already and we formed the unit, I, Sonwabo and Gybon.

CHAIRPERSON: Yes, you were recruited by Raputi as a student member.

MR ZWANE: Yes.

CHAIRPERSON: And how were you recruited into the MK structure?

MR ZWANE: Into the MK structure, I was recruited by the guy of whom we were serving as an executive member ...(indistinct) of both of us, by the name of Umkojwa.

CHAIRPERSON: Who?

MR ZWANE: Umkojwa.

CHAIRPERSON: And when were you recruited into the MK structure by Umkojwa?

MR ZWANE: It was late 1996.

MR LAX: 1986.

MR ZWANE: 1986, thank you.

CHAIRPERSON: And when did you, Sonwabo and Gybon form this specific unit to which you belonged? In what year?

MR ZWANE: 1988, November/December.

CHAIRPERSON: Between 1986 and 1988 you already knew the objectives of the Umkhonto weSizwe, is it not so?

MR ZWANE: It's so.

CHAIRPERSON: And when you were recruited into this specific unit, you must have known what was expected of the union.

MR ZWANE: That's exactly.

CHAIRPERSON: What did you understand to have been the functions of your specific unit?

MR ZWANE: I only understand - I had a general knowledge, no specific law, no specific order was given by my Commander to me that specifically our unit with deal with this target or what, really that information was never given to me from my Commander.

CHAIRPERSON: Yes. Were you told that it would be part of your function to identify targets and after identifying them, eliminate them?

MR ZWANE: As a soldier, I mean that wasn't told to me, but I know that it was also my duty as a soldier, if it was necessary, that I should point out the targets, as a soldier on the ground, I thought personally it was my duty also to.

CHAIRPERSON: Yes. we've just been asking these questions to assist Ms Thabethe. We'll leave the matter then, Ms Thabethe, you may proceed.

MS THABETHE: Thank you Members of the Committee. I think I'm answered. My next question is, when you've testified that you - okay, you testified that you had a plan to go and kill policemen on this day, the 20th. How did you identify these three policemen?

MR ZWANE: We were targeting a Datsun car and the three policemen were wearing their uniform, so I knew all the uniform of the police, so I saw them, that these are the policemen and I pointed them out to the guys that they must stop the car here, near the policemen.

MS THABETHE: Thank you, Madam Chair, no further questions.

CHAIRPERSON: Pursuant to the question put by Ms Thabethe with regard to the identification of the three policemen., you have earlier on in your evidence-in-chief given testimony to the effect that you were asked by your Commander as to where he could find some policemen and you then identified the area as Meadowlands.

MR ZWANE: Thank you, Madam Chair.

CHAIRPERSON: Now I also understood your earlier evidence to be that Sonwabo also stayed in your area.

MR ZWANE: That's correct.

CHAIRPERSON: Yes, now that being so, why was it necessary for him to ask you where he could locate the policemen when you all stayed in the same area?

MR ZWANE: He was not staying in the area, he wasn't born in that area, he came from exile and he was - he came in Soweto, he's not a person from Soweto. He was speaking a tough Xhosa, I should think he was coming from Cape Town, Transkei, I didn't know, but he wasn't a person of that area, he just came from exile and he came to my area.

CHAIRPERSON: So to your knowledge, how long had he been in your area prior to the incident in question, that being the 20th of January 1989. How long had he been staying in your area before this incident?

MR ZWANE: I cannot say because I met the guy in 1998, I was coming from detention too. I came to meet the guy in 1998 and we worked together.

ADV BOSMAN: You mean 1988?

CHAIRPERSON: I came out of detention during November 1998 and I came to meet the guy and we formed a unit, so I didn't know how long was he there, but I knew him from then.

CHAIRPERSON: Mr Lax do you have any questions to put to Mr Zwane?

MR LAX: Just one area Chairperson, if I may. When you finished that operation, what did you do?

MR ZWANE: We went back to the car. We drove away with the car and on the way I spotted the are where they should stop the car and I went out of the car and both my Commander and the other guy, they travelled together and I went home.

MR LAX: What did you do with the handgrenades?

MR ZWANE: The handgrenades, as I stated before, whenever I was leaving them alone, I left them in the car with Sonwabo and I went home.

MR LAX: Whose car was it?

MR ZWANE: I really don't know whose car was it.

MR LAX: Did either Gybon or Sonwabo, did either of them have a car of their own?

MR ZWANE: According to my knowledge, no one had a car.

MR LAX: Now, if I've understood you correctly, certainly with regard to this operation, you were about 20 years old at the time, you were 19 or 20 and you were at school and you would generally get involved in these operations when Sonwabo would come and fetch you and take you off on an operation. Have I understood that correctly?

MR ZWANE: Yes, that's correct.

MR LAX: Did you ever go on operations on your own?

MR ZWANE: Not at all.

MR LAX: And so if you saw a particular target or you had some information, you wouldn't have just taken the initiative yourself?

MR ZWANE: No, because personally I wasn't staying with the loaner, but if I was in the position of the loaner, I was going to personally initiate it.

CHAIRPERSON: What's a loaner?

MR ZWANE: The firearms and the explosives as such.

MR LAX: Just to get back to the question of the civilian, you, the only time you realised anyone had been killed, a civilian had been killed, was when you heard that at court?

MR ZWANE: Yes, Sir.

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

CHAIRPERSON: Ms Bosman..

ADV BOSMAN: Thank you, Chairperson. Mr Zwane can we just follow up on this issue of the civilian? I don't have clarity in my own mind. What exactly was your participation in the killing of the civilian?

MR ZWANE: I never participated, no participation.

ADV BOSMAN: Well, was there any communication between you and Sonwabo?

MR ZWANE: May you repeat yourself please?

ADV BOSMAN: Was there no communication between you and your colleague, Sonwabo?

MR ZWANE: There was communication.

ADV BOSMAN: What was the nature of the communication when you were retreating?

MR ZWANE: When we were retreating? When we were retreating there was no, he just say - give the order that we are retreating back to the car now.

ADV BOSMAN: Were you surprised by the shooting in other words, of the civilian?

MR ZWANE: I don't say I would have been surprised because when he pointed, he shot on the side of the civilians and I didn't think he was shooting at them exactly, I thought maybe he was scaring them, because the main targets were already shot, so when he pointed that side, I thought he was scaring them, not to try and stop us if maybe they had that in their mind.

ADV BOSMAN: Thank you. Thank you Chairperson.

CHAIRPERSON: So what you are basically saying is that, in your opinion, there were no grounds that existed that would have justified the killing of this civilian?

MR ZWANE: Yes, of course.

CHAIRPERSON: Yes. Now turning to the application form that you completed and in the light of the evidence that you've given viva voce today, your application form indicates that you were given an order by Sonwabo to participate in this operation which led to the killing of the policemen and a passer-by?

MR ZWANE: Yes.

CHAIRPERSON: Do you recall completing that particular section in your application?

MR ZWANE: Yes, Madam Chair.

CHAIRPERSON: Now, can you remember what were the exact terms of the order given by Sonwabo to you?

MR ZWANE: I put that phrase in the sense that he was my Commander, whatever operation we were getting into, I mean, he had to command, he had to say let it be, understand?

CHAIRPERSON: Yes.

MR ZWANE: Without him saying let's do this, that is what I was trying to explain there.

CHAIRPERSON: But what did he say? From your viva voce evidence he seemed to have asked you where he could get hold of some policemen. That was your evidence viva voce.

MR ZWANE: Yes. He didn't know the area, Sonwabo, as I explained before, so he wanted us to go out and look for the police in whatever area where there's much police and I pointed the area I knew which got much police.

CHAIRPERSON: Yes, but I'm, I mean, just by somebody saying "identify the area where I can get hold of the policemen", to you that was suggestive of an order being issued by a Commander to participate in whatever operation would be done in the killing of the policemen.

MR ZWANE: Yes.

CHAIRPERSON: You understood that to be the case.

MR ZWANE: I understood that to be the case.

CHAIRPERSON: So when you say in your viva voce evidence you were asked to identify the place where policemen could be found, you understood that request to be an order?

MR ZWANE: I mean as a part and parcel of a unit, a Commander saying identify, I know after identifying we are in position of the material now, after identifying I mean I know already that we won't just identify and go. We will identify and attack.

CHAIRPERSON: Yes. Now where did Gybon stay?

MR ZWANE: He stayed in the car.

CHAIRPERSON: No, was he also staying in the same location as you?

MR ZWANE: Yes, but he was from Pietermaritzburg also.

CHAIRPERSON: How long had he been staying in your location before this operation?

MR ZWANE: I have no idea, Madam Chair.

CHAIRPERSON: Now you became a specific unit, according to your testimony, around 1988, November or December of 1988, are you not in a position to estimate whether by that time he had been there for some few weeks, or for some few months, or a few years?

MR ZWANE: Madam Chair, as I've said before, the whole of 1997, 1998 I was in detention and I came out in 1998, November so I wouldn't know how long was the guy there, I mean I've been not in the township for two years, for a period of two years.

CHAIRPERSON: So when the unit was formed in November of December of 1998, did you know Gybon?

MR ZWANE: I knew, my Commander introduced Gybon to me.

CHAIRPERSON: When was that?

MR ZWANE: After my release in 1998, November, December, just there.

CHAIRPERSON: That was the first occasion you had of Gybon, otherwise you hadn't known him before that?

MR ZWANE: I hadn't known him.

CHAIRPERSON: How did you know that he stayed in the same location as you?

MR ZWANE: After having known him, then I knew where he stayed.

CHAIRPERSON: Yes,

MR ZWANE: He was introduced to me by my Commander, we knew each other, we lived together and I knew later where he stayed.

CHAIRPERSON: Was Raputi aware of your involvement in this specific unit, that was commanded by Sonwabo?

MR ZWANE: Whom?

CHAIRPERSON: Raputi. That's the person who recruited you into the MK structure.

MR ZWANE: Umkojwa?

CHAIRPERSON: Oh sorry. I think Raputi recruited you into the Student Organisation Movement. I think it's Umkojwa, yes, was he aware of your special participation in this specific unit commanded by Sonwabo?

MR ZWANE: I think by then Umkojwa had escaped from the prison and he was in exile.

CHAIRPERSON: So he was no longer around?

MR ZWANE: He was no longer around int he location.

CHAIRPERSON: And who did you say Sonwabo reported to, within the MK structure. To a guy with the code-name of V.

CHAIRPERSON: And what position did V hold within the MK structure? What was his position?

MR ZWANE: I didn't know much about V, Mummy, but I knew he was a big guy because my Commander also respected him. I saw him by chances. I wasn't seeing him, I didn't know him very well, but I was told, this is a big guy, even when he comes to my Commander we used to be taken away. So he used to tell us this is the guy bigger than him.

CHAIRPERSON: Yes. How old was he at the time?

MR ZWANE: He was an old guy, I mean by then I was 19 years, maybe he was 30 something.

CHAIRPERSON: Yes. Do you know where he stayed?

MR ZWANE: No I didn't know.

CHAIRPERSON: How did you know that Sonwabo reported to V with regard to the activities of your unit?

MR ZWANE: Well because when the guy comes, I mean, we can see the strain if we were drinking, we maybe do something, understand, because we usually sometimes sit together and drink, we see him telling us "take these things away", so I started realising this guy is bigger than my own Commander.

CHAIRPERSON: Yes, but how did you know that your Commander was reporting to V?

MR ZWANE: Not as such. I just assumed. There was no direct information from my Commander that I'm reporting.

CHAIRPERSON: Did you ever have the presence of mind to ask your Commander whether he was indeed reporting to V?

MR ZWANE: No, I didn't have that presence of mind, Madam Chair.

CHAIRPERSON: Why did you not have such presence of mind?

MR ZWANE: In fact to be straight, I wasn't bothered by, bothered to ask a lot of things, I was militant, I grew up being a militant young boy. What I wanted, I wanted to fight, understand? To see my country repatriated, that was what I was up to. I didn't ask too many questions, too many things, I really wanted to fight.

CHAIRPERSON: Mr Shai, emanating from the questions put by Ms Thabethe and the Members of this Committee, do you have any re-examination to do on Mr Zwane?

RE-EXAMINATION BY MR SHAI: Just one question Madam Chair. You say, when you joined the unit, you say that you knew that, or when you joined MK, you were aware that you will be identifying targets. That's what you say in your testimony.

MR ZWANE: May you repeat yourself?

CHAIRPERSON: Where did you get this from, Mr Shai? He never gave such testimony here.

MR ZWANE: I just want to put it, quote the words that he used.

CHAIRPERSON: No we are interested, not in your notes, we are interested in the viva voce evidence led before this Committee today.

MR SHAI: Yes, I'm looking at ...(intervention)

CHAIRPERSON: Yes, he did not give such evidence.

MR SHAI: Oh sorry, the words were ...(intervention)

MR LAX: Your microphone please.

MR SHAI: You say to a question, "What did you think you'll be doing when you were recruited?" "I'll be equipped with weapons to hit targets." Was it specifically mentioned to you that those will be your activities, or was that just an assumption from your side?

MR ZWANE: It was an assumption from my side as a young activist.

MR SHAI: And what did you base this assumption on?

MR ZWANE: I based on, before my recruitment, I mean, it was a general information from the media, we heard that MK members were shooting at police as such.

MR SHAI: Now on the civilian issue, you say that there was no communication between yourself and Sonwabo as you were retreating?

MR ZWANE: Correct.

CHAIRPERSON: Miss Thabethe, if you want to raise an objection, won't you do it procedurally through the Chair?

MS THABETHE: I'm indebted to you, Madam Chair.

CHAIRPERSON: Do you have any objection to raise?

MS THABETHE: I just wanted to correct him that he actually said they did communicate, he didn't say they didn't communicate.

CHAIRPERSON: Proceed, Mr Shai, uninterrupted, under my protection. I will then give Ms Thabethe an opportunity to raise her objection, but proceed to put what you want to put to Mr Zwane.

MR SHAI: Thanks, Madam Chair. Or rather, let me rephrase it. Was there any form of communication between yourself and Sonwabo as you were retreating?

MR ZWANE: Yes there was.

MR SHAI: What was the effect of that communication?

MR ZWANE: I mean, after shooting our targets, I mean, he pronounced that we retreat now, as a cover behind, he pronounced that we retreat, and we retreated back.

MR LAX: The question was, was there any communication between the two of you as you were retreating? That was the question. Your microphone. You've told us about a communication before you began retreating. This was while you were retreating, was there any communication? That's the gist of the question. Have I got it right, Mr Shai?

MR SHAI: That is correct.

MR ZWANE: The only communication was when he pronounced that retreat, that was the communication we had.

MR SHAI: And if you were to be in the shoes of Sonwabo as you were retreating, and with the screaming that came from the civilians, would you have acted as Sonwabo did?

MR ZWANE: Not exactly, but nearly. I would have tried to scare them, to shoot to make them - to scare them, to see that I mean we are really in business, but not killing them.

MR LAX: Do you know what was in Sonwabo's mind?

MR ZWANE: No, Sir.

MR LAX: You didn't ask him about it afterwards?

MR ZWANE: No, Sir.

CHAIRPERSON: Your evidence, pointedly, is that you hardly were aware that anyone was injured or killed until this was brought to the attention - this was brought to your attention during your criminal trial.

MR ZWANE: Thank you, Madam Chair, that exactly.

CHAIRPERSON: Yes.

MR SHAI: No further questions Madam Chair.

CHAIRPERSON: Thank you, Mr Shai. Ms Thabethe.

MS THABETHE: I have no witnesses Madam Chair.

CHAIRPERSON: You have no witnesses? Mr Shai, do you wish to call any witnesses in support of Mr Zwane's application?

MR SHAI: No witnesses, Madam Chair.

CHAIRPERSON: Yes. So you now close your application?

MR SHAI: I close my application, Madam Chair.

CHAIRPERSON: Yes. Are you in a position to present your legal argument?

MR SHAI: Madam Chair, may I be given just maybe plus minus 3 minutes, not a long adjournment?

CHAIRPERSON: Yes, we'll adjourn for 5 minutes.

CHAIRPERSON: Mr Shai you may proceed with your oral submissions.

MR SHAI IN ARGUMENT: Thanks Madam Chair. It's a trite law that in an application like this one has to satisfy, or the Committee has to satisfy itself, as to the requirements of the Promotion of National Unity and Reconciliation Act, most specifically so the provisions in Section 20, from sub-sections 1 to 3. I'm going to deal with the provisions of the sub-section more specifically sub-section 3 and some few provisions of sub-section 2.

My submission is, as far as sub-section 1(a) is concerned, the applicant did indeed comply with the requirements in the form of him actually meeting the deadline as he is actually required and it is my submission that because it was actually considered by the Committee and then he actually complied with the provisions of 20 sub-section 1(a). Then I am going to leave (b) and (c) for the moment. I will actually deal with them when dealing with the provisions of sub-section (3). Then dealing specifically with specific elements inherent in the incident for which he actually makes an application for.

One of the aspects that one has to look at is the issue of where he was actually at the time of the commission of the offence in question, a member or supporter of a political organisation.

CHAIRPERSON: May I interpose? We don't have any contrary evidence. We accept the evidence before us, you don't need to elaborate on that. We have to accept, because there is no evidence to the contrary that he wasn't.

MR SHAI: Yes, that's why, Madam Chair, I said that I will deal specifically with the provisions of sub-section 3 which I think he has to fully satisfy before he could be considered as an applicant who satisfies the requirements of the Act in totality.

Now I am going to deal with the (a) part of it, the motive of the applicant in this matter at the time of the commission of the said offence. He says that when ...(intervention)

MR LAX: Surely, Mr Shai, the issue here is a really simple one and let's not make a meal of it. He was acting under an order by his Commander. That would place him in a specific sub-section. If you'd focus on that, we could deal with this submission a bit more quickly. He himself in his own motive, if it's a question of acting under an order, does it come into it?

MR SHAI: I then, Madam Chair, ask for direction from the Committee as to what specific sub-section I should actually deal with under the provisions of Section 20 sub-section 3.

CHAIRPERSON: Yes, we are merely directing you to what is fundamental to his application.

MR SHAI: That is correct.

CHAIRPERSON: What is paramount and significant to his application is that the testimony before us indicates that he was acting under orders. You should confine your argument, only with regard to the section dealing with people who are acting under orders. I don't think it is fair for you to expect this Committee to direct you to that particular provision, in order to enable you to present legal argument.

MR SHAI: Madam Chair, I was just going to actually deal with the provisions of sub-section 3, then quickly dismissing each and every one of them before we actually come to concluding my submissions.

CHAIRPERSON: Let me then drag myself to an arena where I do not want to find myself in. Let me point out to you that the sub-section you have already alluded to, in fact deals with the pointed submission we want you present before us. That's Section 20(3)(e) to be precise.

MR SHAI: That is correct. Madam Chair, here it says "whether the act, omission or offence was committed in the execution of an order of or on behalf of or with the approval of the organisation, institution, liberation movement, or body of which the person who committed the Act was a member, an agent, or a supporter." Now in actually dealing with whether he falls within the ambit of this, one has to look no further than looking at whether Sonwabo was indeed an MK member who was actually giving instructions to the applicant. Now we only have the viva voce evidence of the applicant to that effect. but if one looks at page 51 of the bundle before the Committee reference is actually mae to Sonwabo by the learned Judge, who actually decided on this. I'm just going to quote from page 51, that will be the first paragraph, just immediately after the comma, it says "Die persoon wat die beskuldigde telke male noem in sy bekentenis en die Luitenant het getuig dat hulle weet en het geweet dat Sonwabo 'n buitelandse ogeleide terroris was." So in other words, in the court itself it was accepted by virtue of the evidence that was led by a Lieutenant that this Sonwabo was a cadre, I will use the word, terrorist at that stage was the word that was actually used for members of the Umkhonto weSizwe and that was accepted as a fact and over and above the viva voce evidence of the applicant, we now have evidence aliunde to the effect that this Sonwabo was actually a trained cadre and my submission is, if one were to look at what the applicant said today that this Sonwabo was actually a person who was giving him instructions, and then my submission is that as far as the provisions of sub-section E are concerned, and this Sonwabo was actually known as a person who was giving an order to the applicant, and the applicant sincerely believed that if Sonwabo were to give an order as a Commander, then he had to carry them out. My submission Madam Chair is, he actually satisfies the requirements of Sub-section 2 (e), 3 (e) Madam Chair, I beg your pardon. It's trite law, or it is common cause at the moment that he actually says that he believed that these instructions, or when he carried them out, they had to be carried out because this person was actually reporting to V, or he sincerely believed that this person was reporting to V and my submission is, as far as the chain is involved from the accused - the applicant was actually carrying out instructions up to the person who was giving instructions, there was a genuine belief that he was so authorised to actually deal with the activities as he did. My submission is, the applicant has satisfied the said requirements.

CHAIRPERSON: Yes. ...(indistinct - microphone not on)

MR SHAI: If the Committee will actually like to direct me to deal with number (e) in particular but I will actually go further and deal with the issue of the killing of the civilian, if indeed, during the course of carrying out the mandate for the killing of the three police officers, he actually killed a civilian who had nothing to do with the machinery of the state. My submission is, it was actually an act that was also committed in the carrying out of a mandate which was actually politically motivated.

CHAIRPERSON: What happened?

MR SHAI: I'm referring to the orders that were actually given to him by Sonwabo, that they had to actually look for these police officers and kill them, then in the process of actually killing the police officers, in the process of retreating, then this person was actually hit.

CHAIRPERSON: He wasn't hit in a cross-fire, that's not the evidence of Mr Zwane.

MR SHAI: That is the evidence, Madam Chair. But if one,

CHAIRPERSON: Where is that evidence? I don't have such evidence before me. The evidence that is before me is clearly that as they were retreating, he saw people shouting and screaming, "hey, hey". He himself does not know what happened to those people. He is in no position to say that Sonwabo, he saw Sonwabo firing at those people who were screaming and saying "hey, hey, hey". He is in a position to speculate, however, and this is mere speculation, that Sonwabo might have fired at those people and that the civilian, who was later identified to him as having been killed around the scene, could have been a person that Sonwabo fired at in order to scare him, but this is all speculation.

MR SHAI: That is correct. It was a speculation that relates to the firing, but it's not a speculation as the firing itself is concerned. He is sure that Sonwabo fired at these people, that is part of his evidence, but he is speculating as to the motive for his firing at the people. That is why in my re-examination I actually put it to him whether had he been in the position of Sonwabo, he would have acted as he did and his answer was, "I would have, to scare the people". It was during the scaring off of these people that a fatal shot was actually fired, that led to the death of the civilian.

CHAIRPERSON: How can you say when the fatal shot was fired by Sonwabo? I mean, here is the witness before us today, who has not been able to say when any of the civilians could have been fired at by Sonwabo. That's the evidence before me. There is no evidence to suggest that Sonwabo might have fired at the civilians. This witness was not aware that any of the civilians was ever fired at until when he appeared at his criminal trial and this was brought to his attention.

MR SHAI: Madam Chair, maybe as far as that is concerned I actually heard the story differently, because he says in his evidence-in-chief, he says he saw the firing, but the hitting itself, the hitting itself he didn't see. He only learned of the death of the civilian when he was actually arraigned for trial. He doesn't doubt the fact that there was actually a shooting, but the motive for the shooting and the hitting of the civilian by Sonwabo.

CHAIRPERSON: Mr Shai.

MR SHAI: Madam Chair.

CHAIRPERSON: I would be greatly indebted to you if you can just refresh my memory when during his evidence-in-chief he led such evidence, that he actually saw Sonwabo firing at the civilians, because I do not have that evidence and that's why constant questions were asked about what happened as they were retreating.

MR LAX: What I have which may be helpful is, you asked about what these people were doing, "they made a noise, they were shouting 'hey, hey, hey' at us while we were retreating. Did they do anything? No they just screamed What made you shoot? Sonwabo just shot at them, they didn't do anything." He only noticed the people when they were retreating and he heard them shouting at us, that's when he first noticed them.

MR SHAI: That was on cross-examination by Madam Chair, when he actually uttered those words, but those words were actually when he was so cross-examined, it was based on what he said in his evidence-in-chief, that he actually witnessed the shooting. He heard the "hey, hey, hey" and then the shooting. Then, as to what - there was actually a question from - when the Evidence Leader was actually asking about communication between the two, the issue there was actually the issue of what he knew, the questions was actually centred on the motive. The motive of Sonwabo in the time of the shooting, it wasn't actually centred around the issue of whether he shot or not, that is what I understood Madam Chair, subject to ...(intervention

MR LAX: Sorry Chair, just for the record, what I'm quoting from is from his evidence-in-chief, not from cross-examination. The cross-examination happened at a later stage and there the issues that were raised were the issues of did they communicate, and the applicant very clearly testified that they didn't communicate during the retreat at all, the only communication between them was the order to retreat itself and nothing more and that's the only evidence on this issue before us.

CHAIRPERSON: I think my interposition happened whilst you were leading him in chief.

MR LAX: Yes.

CHAIRPERSON: My interposition happened while you were leading your evidence-in-chief, so it forms part of the evidence-in-chief.

MR SHAI: Yes, but it was actually to a response to questions when he talked about the "hey, hey", it was actually in response to questions that were posed by Madam Chair, but prior to that his evidence was, there was indeed a shooting by Sonwabo as they were retreating, but he doesn't know the motive. It was actually centred on the motive for the shooting of the civilian, that's why in my re-examination I actually asked him, if you were in the position of Sonwabo, would you have fired a shot as well? Because that is what I understood from his evidence, that actually there was a shooting but he wasn't sure about the motive for the shooting, Madam Chair.

CHAIRPERSON: Yes, he actually was speculating that maybe Sonwabo shot at them to scare them. That's the evidence. Those are my notes and we can cause the record to be transcribed just to be able to get over this hurdle if need be, but even if we were to concede that that is so, how would he be covered? I mean, how would he have been acting under orders? I mean he's orders are very precise. Identify the place where we can locate the police. He knows the political objective of such an identification is to shoot the police because it is the policy of MK to shoot at policemen. They were the target. How would he be covered if he was acting under orders of Sonwabo? How would the shooting of a civilian cover him?

MR SHAI: Madam Chair, it was during the carrying out of this activity of shooting the policemen, that a civilian was actually hit. It is actually an incident or an activity related to a political activity. In other words, when the civilian was so hit, it was during the carrying out of a political activity. You can't actually divorce the shooting of the civilian from the shooting of the policemen. Had it not been for the shooting of the policemen, the civilian wouldn't have been hit.

CHAIRPERSON: But he doesn't know why Sonwabo shot at them. He thinks that Sonwabo might have shot merely to scare them off.

MR SHAI: Madam Chair and he says the reason why he says so is if he were to be in the position of Sonwabo ,,,(intervention)

CHAIRPERSON: No, not before. That's when you were re-examining him. This is his evidence-in-chief. He thinks Sonwabo shot at them to scare them. That's his evidence-in-chief.

MR SHAI: Yes, that is the position, but in scaring them a fatal shot was actually fired.

CHAIRPERSON: But now this is not cross-fire you know. There is a difference between shooting at somebody and that person is caught in a cross-fire shooting and shooting at somebody for a different intention, to scare them off.

MR SHAI: Madam Chair, I understand. Madam Chair, my submission is, in an activity of this nature where you have to kill at a certain place and then you have to retreat, the activity is not over until such time that the people taking part in the activity have retreated.

MR LAX: Except to say, Mr Shai, that there are two different incidents in one here and in relation to the second incident which is the shooting to scare off, the issue of proportionality will come into it very, very much in that issue because we have the evidence of the applicant that these people did nothing that gave any impression that they were going to interfere with the retreat. Now in the light of that and in the light of the fact that he didn't even anticipate the shooting himself and in the further light of the fact that he didn't even know anyone was hit, how can we grant him amnesty for that?

MR SHAI: I will answer this at the cost of actually repeating some of the aspects that I have already alluded to.

CHAIRPERSON: Yes.

MR SHAI: And I may, if necessary, Madam Chair, make use of an analogy to actually bring my point across. Here we have people who are involved in a political activity and in the carrying out of this political activity, not during the cross-fire, we have got a bunch of people, each with his or her own personal mechanism of thinking. The plan is the same. The motive is the same. Now during the carrying out of this activity, somebody thinking on his own, thinks that it is necessary to actually fire as he did. Now the problem that I have is, if you were to divorce that incident, you actually divorce the two incidents and you say there is a shooting of a civilian and a shooting of a police officer, my submission is that you can't actually come to a conclusion that there was a motive for the shooting of the civilian without actually looking at what is it that they were doing when the civilian was actually hit.

CHAIRPERSON: Or what were the civilians doing at the time when they were hit?

MR SHAI: That's why, Madam Chair, I said, he says himself, if he were in the position of Sonwabo the person who fired the fatal shot, he would have actually also shot to scare them off. Now we are here talking about now how precise was he in actually aiming at the civilians, whether he was actually aiming at the civilians themselves or whether it was actually a bullet that was not aimed specifically at the civilians.

CHAIRPERSON: And we are in no position to come to an answer, are we?

MR SHAI: That is correct, Madam Chair and that is why I say the only way to actually arrive at an answer that will actually be helpful to the application itself, is actually looking at the incident of the shooting of the civilian in conjunction with the whole incident as is before the Committee. The two, my submission is, they cannot be divorced. At no stage did they say, "Now the political activity has come to an end. What do we do now? Do we shoot the civilians or not?" That is not what happened. It's actually during the rolling, the ongoing of the very same activity they went out on, that this civilian was actually hit and it was not actually at the end of their having retreated, that they were actually shot and killed.

CHAIRPERSON: Mr Shai, also at the point of the Panel repeating itself, let's again make our problems quite clear. It is Mr Zwane's evidence that at the time when they were retreating and at the time when these people were screaming "hey, hey, hey", they were not doing anything that would have posed a threat to their retreat. They didn't advance towards them, they did nothing except to shout "hey, hey, hey." That is the evidence before us. What are we supposed to do with that evidence? Surely we must give some kind of weight to that evidence in order to try and accommodate your submission that the mission was still continuing as they were retreating. Had there been any evidence to suggest that the civilians posed a threat to their ultimate retreat, then we would understand, but there is no such evidence that any danger was posed by the people we identified as the people who were about 6 paces away from the scene of the shooting of their targets, the targets being the municipal policemen. These people are 6 paces away from the scene.

MR SHAI: That is correct, Madam Chair. Now let's look at the problem from the point of view of Sonwabo and the applicant, as a collective, although it is actually common cause that one was actually acting under orders from the other, then one has to deal with the question, what would happen in a situation whereby they actually went to one and the same place but one were to carry his activities at a different scene, but at the same place. In other words we have got two people who had planned to go and kill policemen who are not in the position that the three policemen were, but we have got people who are out to kill policemen who are situated at two different spots, but at the same time. Now we have one who is dealing with his own peace officers and the other dealing with his own peace officers as well. Now my submission is, if one is faced with problems as far as his police officers are concerned and in the process something goes wrong with that person, because they are part and parcel of the same operative, then my submission is, one can say that the killing, if a civilian is killed by one of them, the killing can actually be taken to have been committed by the people as a unit. We can't - that's why I say that it is difficult to divorce the two. We can't say at what stage - we can't actually expect the applicant to actually testify on what could have gone on as far as the other person is involved. It's actually trying to find out from the applicant what is it that the other person thought will be the position.

CHAIRPERSON: That's why we simply are saying this could never have been part of the order that he was acting under and it's quite clear, I don't see how we can keep on harping one point for such a long time when I think to me the issue is quite clear. That can hardly be the case. You cannot submit that this could have been part of the order under which he operated at the time when the three policemen were killed.

MR LAX: Just to add this. You will recall that earlier on in the day there was an application. Adv Bosman asked a question which I thought was very helpful in helping separate the issues. The question was, in relation to the murder of the civilian, would you be able to tender a plea of guilty by your client? And again, in these circumstances, the answer must be no. He didn't even contemplate it. Do you see the difficulty?

MR SHAI: In answer to that, I actually see what the difficulty is. It's because in a court of law one will be doing with the two levels of involvement, the physical involvement and the mental involvement. Now in this application, in a court of law one would be in a position to tender a plea of guilty because the mental element doesn't relate to the killing of the civilian, but now here we're looking at it from a different angle. We say an offence was committed. A person was killed. The only person who can actually relate to how the mental element was actually involved is this Sonwabo. He was there, he was physically there as part of the operation itself, but now the problem is, can we actually divorce the two? We say, this is one incident and this is the other incident. We are - my submission is, he is making application for the incident. We are talking about one incident, it's not two incidents, it's just one incident, in which people were killed, people from different categories. One or two peace officers and one a civilian.

CHAIRPERSON: What were his orders, Mr Shai, what were his orders? What were Mr Zwane's orders?

MR SHAI: His orders as I understood was to go and kill policemen. To identify policemen and kill them.

CHAIRPERSON: Yes, it was never contemplated that any other person would be killed as part of his orders. Is there any evidence to suggest that it was ever contemplated as part of his orders, that anyone other than the target, would be killed?

MR SHAI: But that is what happened.

CHAIRPERSON: I don't care about what happened, just confine yourself to what I'm asking.

CHAIRPERSON: Is there any evidence to suggest that the order contemplated any other person being killed other than the target?

MR SHAI: Nothing like that.

CHAIRPERSON: Thank you.

MR SHAI: And my submission is, we're dealing with a fact that emanated from the same operation and we can't say because that was actually not foreseen, then it should be discarded. My submission is, it happened, it was during the operation itself and my submission is, it cannot be divorced from the killing of the two police officers.

CHAIRPERSON: Yes. Having regard obviously to the evidence given by Mr Zwane, with regard to what the group of people were doing, who it is speculated one of the deceased might have been. It might have been one of them. It was nothing that they did that would have posed a threat to the successful completion of the operation which is a successful retreat from the scene of the crime. But I have understood you and I don't think you can labour the point any further. You have repeatedly said, at the point of repeating yourself, you are making these submissions. We have just been putting these questions to you so that we can be clear in our minds what your submissions are in relation to the evidence before us. I hope you understand that.

MR SHAI: Thanks, Madam Chair.

CHAIRPERSON: Ms Thabethe.

MS THABETHE IN ARGUMENT: Thank you Madam Chair. I think I should respond firstly on the issue that was, on the aspect that was just argued now and that is the aspect of the shooting of the civilian. I would have argued in favour of the applicant, that the evidence before you is that the applicant does not know at what stage the passer-by was killed or the civilian was killed. He only found that one out in court. Everything else is speculation and really I think in his favour I would argue that the civilian could have been killed during the cross-fire. He could have been killed when Sonwabo was shooting. He is not in a position to know when the civilian was killed which makes it - which would make it one incident per se, or it can be argued that the civilian was caught up or might have been caught up in the cross-fire, that's what I would argue in his favour.

CHAIRPERSON: Would it be your submission therefore that the civilian might have been shot at even by the time Mr Zwane was able to observe this group of persons he has testified about and as having screamed "hey, hey, hey" and that the civilian might have already been shot at the time when he says this group did not make any move at all to threaten their retreat?

MS THABETHE: Yes, that's what I'm arguing.

CHAIRPERSON: Yes.

MS THABETHE: I don't know whether you want me to address you on anything else Madam Chair, with regard to that aspect or to that.

CHAIRPERSON: Yes, proceed to address us on any issue with regard to the killing of the civilian that you so wish.

MS THABETHE: Yes, I think that was my argument, Madam Chair, that I would argue that he is not in a position, or with the evidence in front of you, I don't want to repeat myself, it's not clear at what stage the civilian was shot and I would argue that it could have been at any time.

With regard to the three policemen that were killed, I wouldn't like to repeat anything that my learned colleague has said and there's no evidence in dispute of, sorry there's no evidence against or disputing the fact that the applicant belonged to MK and their objective was a political one, to kill policemen who represented the state or the government of the day at that time. So I would not object to amnesty being granted. Yes. And of course with the victims, because I also represent them, the interest of the victims, I would pray that they be referred to R and R,

CHAIRPERSON: Yes. That concludes your argument?

MS THABETHE: Yes, Madam Chair, it does.

CHAIRPERSON: I take it, Mr Shai, you wouldn't have anything to reply on.

MR SHAI: No, Madam Chair.

CHAIRPERSON: We wish to express our gratitude to the legal representatives, Ms Thabethe and Mr Shai for the assistance they've rendered to this Committee in facilitating the Committee to arrive at an equitable, just and speedy decision in respect of the application for amnesty by Mr Zwane. This Committee is in a position to give an extemporary decision in respect of this application. I, however, have just been reminded by the members of my Panel that when we commenced with this application, we had an undertaking by the concerned of all parties, that in view of the nature of the notification, I have given to the families of the victims in this matter, in particular the family of the deceased Nicholas Masanwe Tshabalala, who stay in the Northern Province and the family of Mr Masanga, Nimrod Umkomande who stays in the Transkei, we will have to give them time to give an indication whether they would like to oppose these proceedings in which case, if they do want to have a substantive opposition to Mr Zwane's application, we would give them an opportunity to cross-examine Mr Zwane with regard to those issues of the substantive opposition, they would have in respect of his application. I recall that Mr Shai was in agreement with this recommendation from the Panel, as well as Ms Thabethe. That being the case, I think we are unable to pronounce a decision without affording them that opportunity to exercise their right, which we are enjoined by the Act to furnish to them in terms of Section 19 sub-section 4. Because we would like to pronounce our decision as speedily as possible, we will give an indication to Ms Thabethe that, in the event that there is no indication of the families of the victims intention to oppose substantively this application brought by Mr Zwane within 14 days from today, we will proceed to pronounce our decision.

MS THABETHE: As the Committee pleases.

MR SHAI: As the Committee pleases. Will the decision be posted to us or would we have to come for the decision?

CHAIRPERSON: Because it will not be feasible for this Panel to reconstitute itself, we will fax a decision to your office after 14 days. You are also at liberty to maintain contact with Ms Thabethe, just to make sure that you know the interests of Mr Zwane are fully protected in the event of there being a delay from her side to give you the decision, but we will proceed to write our decision and we'll hold it in abeyance pending, of course, an indication whether the families of the victims mentioned intend to oppose substantively or not.

MR SHAI: Thanks, Madam Chair.

CHAIRPERSON: This brings this hearing to a close and this is the end of our roll. Our gratitude to the legal representatives, to the members of the public, to the media, to members of correctional services, our technical staff and the members of the TRC, the translators, the logistics officers, our own media liaison people and the South African Police Service for the support that they have rendered in ensuring that these hearings proceed without any hitches. Thank you.

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