CHAIRPERSON: Good morning. It's Tuesday the 28th March 2000. We're hearing the amnesty applications in Pinetown. The Panel consists of myself, Chris de Jager, Advocate Bosman SC and Advocate Sigodi. The matters due to be heard is the application of Mr Msibi, application number 5617/97 and Tsuku Tshika, 5962/97. Could the legal representatives please put themselves on record?

MS MTANGA: Chairperson, I'm Lula Mtanga, the Evidence Leader for the Truth Commission.

MR DEHAL: Thank you Mr Chairperson, my name is Dehal, Roshan Dehal from the firm Dehal Incorporated, I represent both the applicants in the matter. Thank you.

CHAIRPERSON: We've adjourned yesterday afternoon until 9 o'clock this morning. Could we have an explanation why we're starting so late?

MR DEHAL: Mr Chairperson, I think it's prudent for me to deal with that aspect. I begin by saying I repeat my apology to you Mr Chairperson and the Panel for being late this morning. I was about 15 minutes late. Unfortunately, apart from that 15 minutes to quarter past nine there was a host of consultations by the Evidence Leader with the crowd at the back and especially with the victims that are here and ongoing consultations between herself, myself with Deborah Quinn on aspects arising on the record, the need to divide them and otherwise and with yourselves. So there were some necessary consultations. We've met with the people and through the Evidence Leader, she's apologised on our behalf. Thank you.

CHAIRPERSON: Thank you. Are you perhaps appearing in any of the matters tomorrow?

MR DEHAL: Mr Chairperson, I'm not aware of any matters tomorrow except for these two applicants. If it enrols till tomorrow then those would be the only. None, no other matters.

CHAIRPERSON: Right, there's a number of incidents referred to in the applications. Could you kindly tell us exactly for what you are applying?

MR DEHAL: Mr Chairperson, that is unfortunately a question that leads me to some difficulty. Mr Chairperson, the position is as follows. Insofar as the second applicant is concerned, Mr Tshika ...(intervention)

CHAIRPERSON: Yes, let's start with him and tell us, he is applying for what?

MR DEHAL: He applies for amnesty for all the incidents in the Newcastle area, there being four such incidents which four incidents are detailed as a summary on the cover page of the bundle that we have namely:

In addition to those four, Mr Chairperson, he also applies for amnesty for incidents that took place in Durban and there are three such incidents. Firstly, the attack at the Mobeni Post Office in 1985, secondly ...(intervention)

CHAIRPERSON: Just go slow please, we haven't got that one?

MR DEHAL: I'm sorry, the attack at the Mobeni Post Office in 1985. Secondly the attack on Game in Pine Street in Durban in 1985 as well.

CHAIRPERSON: Could you kindly refer us in his application where he refers to this?

MR DEHAL: Sorry, before I deal with that Mr Chairperson, could I just tell you there's an additional count in the Durban area as well and that is the attack on a mini bus in Pine Street in 1985

Mr Chairperson, dealing with your question, if I take you to bundle, page 13, this is the written application of the second applicant, Mr Tshika and if you look at paragraph 9(a)(iii), he there talks of Durban and in Newcastle.

CHAIRPERSON: And in the indictment referred to on page 73 to 91?

MR DEHAL: Could I just look at that, Mr Chairperson? Sorry, bear with me, Mr Chairperson, the applicant, my assistant, just helping me go through the bundle.

CHAIRPERSON: Perhaps you should refer from page 79 where details are given? Count one is the general offence of terrorism, count two relates to separate alternative, that's the possession of weapons.

MR DEHAL: And Mr Chairperson, if you look at page 82, you'll find that it deals in the general preamble after the words "an whereas" with the Durban incidents themselves. It talks about during the period January 1985 to November 1986 and to Durban and the district of Durban, Umgababa and the district of Umbumbulu, Newcastle, oSizweni and Madedene in the district of Newcastle, Glencoe in the district of Glencoe and so it goes on.

CHAIRPERSON: Yes.

MR DEHAL: And of course Mr Chairperson, more pointedly if you look at page 94, paragraph 8 right on the top deals with OK Bazaars, West Street and Game Discount World, West Street, Durban.

CHAIRPERSON: Right, if perhaps you could try and ...(intervention)

MR DEHAL: And paragraph 11, the Post Office in Durban.

CHAIRPERSON: Connect the incidents to counts number so and so then it would be easy for us to follow it.

MR DEHAL: Yes, that would be easy, Mr Chairperson.

CHAIRPERSON: But it seems as though all the counts relates to possession of firearms, ...(intervention)

MS MTANGA: Chairperson, if I may come in?

CHAIRPERSON: Yes?

CHAIRPERSON: My understanding of the indictment is that it was - the incidents that are being referred to now on the indictment, they were generally included on page 84. There's no specific reference to each incident as a separate count.

CHAIRPERSON: Yes.

MS MTANGA: It's only in the summary that they deal with them separately.

CHAIRPERSON: Yes.

MR DEHAL: Mr Chairperson, the other submission that would be important to make at this stage is that the applicants have made the decision or have taken the decision if you are agreeable that the Durban matter should not proceed today. Apparently because of a host of other problems, not least the following. One, Ms Deborah Quinn of the TRC has advised that the commander of the second applicant whom we're dealing with has in fact applied for amnesty and it would be prudent to have him brought to these hearings perhaps on notice or invited in some way so that he could form a part of these hearings to corroborate our version.

CHAIRPERSON: Yes, so has his application already been heard or dealt with?

MR DEHAL: Not yet, no Chairperson.

MS MTANGA: Chairperson, if I may come in? The Durban incidents are not subject matter of these hearings at all so he was never notified because we never intended to hear those matters today.

CHAIRPERSON: Yes, could you perhaps advise us which incidents you think we could hear today?

MS MTANGA: On the covering page of the bundle the incidents that can be heard today it's the first incident, the attack at oSizweni Police Station on the 10th October 1986. The second one that was set down for today, it's the Newcastle matter in which we are encountering problems regarding the notification of victims.

CHAIRPERSON: Yes?

MS MTANGA: And the third incident, it's the Glencoe railway station at Dundee and the fourth incidents, it's the Game Centre explosion which also took place on the 10th October - sorry, the 11th November 1986, it's the same incident as the Newcastle Magistrate Court one.

CHAIRPERSON: So that one too we can't hear today, number four?

MS MTANGA: Yes, we can't hear number two and number four.

CHAIRPERSON: Yes, so do you intend to ask us to proceed with the incidents two and ...(intervention)

MS MTANGA: One and three.

CHAIRPERSON: One and three?

MS MTANGA: Yes Chairperson.

CHAIRPERSON: And that's the only incidents we're proceeding with today? What is your position about those two incidents and the other would be postponed then for a hearing at a later date?

MR DEHAL: Mr Chairperson, unfortunately I do have some problems with that suggestion. I have conferred with the applicants on that and that is what took the time this morning or one of the items that took this time this morning. The problems I have are the following. Briefly, firstly the second applicant is concerned that whereas his application does in truth and in fact deal with the Newcastle incidents, the Northern Natal incidents and the Durban incidents, he at all times understood that his application would as a whole deal with those counts that he seeks amnesty for. Never was he told by the TRC on notice or otherwise that the Durban incidents would be separated. When he consulted with lawyers at my office in the formulation of his statement he considered it perhaps an error on the part of those formulating the bundle not to have referred in the summary on the first page to the Durban incident and accordingly in his exhaustive statement he deals with the Durban incidents at length exhaustively and hoped that it would be heard today. But having heard the problems at the administrative level with the Durban matters he has now reconciled with the decision that he will agree to the Durban incidents being heard separately but apart from that, that brings me to the four items on the bundle. The four items on the bundle, Mr Chairperson, namely those at the oSizweni Police Station, the two Newcastle incidents and the Glencoe railway station incident, are incidents that deal with a set of activities under the command of the first applicant, Mr Msibi, in the Northern Natal area.

The problems we have were the proposition made by my learned colleague, the Evidence Leader, in dividing them are multifarious. Some of them are the following. The applicants are of the view that they should not be asked to divide their application and testify piecemeal on different issues particularly since these four issues are broadly speaking one and the same. They fall within the purview of a single command structure, they fall within the purview of an area that is identified as Northern Natal. They deal with logistical and factual issues politically in that area and if they were to deal with them they would go through about two hours of evidence each at the least in regard to the background of the political aspects in the area and they feel that if these matters are divided they would have to again deal with the same facts at a different forum perhaps before a different committee and it would be - their words are, it would compromise their position.

The second problem we have ...(intervention)

CHAIRPERSON: Sorry, could I just put this to you? For instance in the De Kock trials we've got different incidents relating to the same background being heard by even different Panels all over the country at different times so we're hearing incidents because in some incidents a group of people may be involved in other incidents, other people wont be involved. As far as victims are concerned we're bringing victims to venues at great costs. We can't keep them for a week if they're only involved in one incident being heard on one day. That would be too expensive. We would request you -I'm not making an order but we'll request you to kindly see whether we can't deal with the two incidents number one and three at this stage because of the saving of money. We're wasting public money, it's not our money, taxpayers money. If we do nothing today we've got to pay all the staff members here and how would we explain that to the Minister for instance, why couldn't we proceed? Even if evidence has to be repeated, if you hand in the statement, the same statement could be handed in at the next hearing and only confirmed, you need not go through the statement word by word. We could read the statement, if it's confirmed it's confirmed. Your statement of today, you need not go through the evidence for two hours, we know about the background, the political background, the war that was going on so it's no need to deal in detail, you could sort of - certain issues could be raised and brought more to the front but it's no need to repeat word for word. If it's a sworn statement it's evidence before us whether it's oral or evidence. We need not have oral evidence about it all. So I would really ask you and ask the applicants - we don't want to prejudice them, instead we want to finish the work so they could have amnesty. In certain incidents maybe in a months time otherwise they'll be waiting for another six months perhaps before they can be heard.

MR DEHAL: Mr Chairperson, I think the points made by you are correct, I appreciate them, I embrace them and endorse them. Could I approach the applicants to confer with them on this?

Thank you.

CHAIRPERSON: If you would like a short adjournment we could adjourn for it.

MR DEHAL: It would seem necessary. Thank you.

CHAIRPERSON: We'll adjourn for five minutes.

CHAIRPERSON: Are we in a position to start now?

MR DEHAL: Yes indeed Mr Chairperson. I have a few preliminary comments that I'm instructed to make, if you'll bear with me on those and then perhaps we would be in a position to begin with those two counts.

Mr Chairperson, both the applicants are feeling very uneasy at the moment. I feel just as uneasy because being their attorney they feel that they've been placed in a position where they, to assist the Committee, to assist in alleviating the cost aspect they should proceed. They're hoping that this would not negatively impact on them relative to their present application and any subsequent application they bring. They've reasoned somewhat on the following basis that if they were to deal with these counts exclusive of the others, an argument may well be adduced that they are not testifying with full disclosure on the other counts. The other argument that may be adduced is that if they are questioned by my learned colleague, the Evidence Leader, or any Member of the Panel and I understand there's no victims here in the one case and nobody opposing in the other, then some of those questions may deal with their Durban aspects and their involvement elsewhere which they are now being asked not to deal with.

Insofar as the second applicant is concerned, he more than the first applicant has a very serious problem with it. He says that his general background, his life history, his political scenario, his politicisation stems from Durban, stems from Newcastle and that Durban is an essential ingredient offered. If you were not to talk about Durban then it will not give a full and complete picture. He says, however, if the Committee is happy with that he will proceed but he does so, both in fact will do so, against their better judgement only out of their good will and their hearts to proceed to help today.

CHAIRPERSON: Yes, I think they should leave it to our better judgement and not their better judgement but be that as it may we want them to disclose the relevant facts to the incident they're now applying for and you would be free to object whenever we touch on things outside those incidents because I don't think the facts of other incidents would be relevant to this one. We're quite aware that they're involved in other incidents, I do not think that it's necessary to enter into any details of the other incidents and I can assure you I don't think it would prejudice them and I'm sure my Panel agrees with as we'll guard against any prejudice coming from that sort of source.

MR DEHAL: I'm indebted to you Mr Chairperson. Just the last comment, qualifying comment that I wish to make is this, both the applicants feel that in them being addressed about the need to alleviate the expense aspect of this Committee, they are the ones who may be regarded as being guilty to causing the expense. They say that they are not - they want it to be made crisply clear that they came here ready, able and available to proceed on the entire scenario, Durban included. That notice was not given to so many victims in the Newcastle matter is no fault of theirs. They expect ...(intervention)

CHAIRPERSON: No, I quite agree with that. It's no fault of theirs and the only fault that they could be blamed for is for you being late this morning, no other fault.

MR DEHAL: Mr Chairperson, apart from that, the last comment is this. The statements that we prepared is all encompassing and exhaustive. So if you will forgive me, the one that we've handed up has scratches on it. The scratches are intended to expunge those aspects. Insofar as Msibi is concerned, the second applicant - sorry, Tshika the second applicant, his unfortunately is so dissected and intertwined with other aspects that we are not intent on dealing today that I can't really hand the statement in, it's too full of scratches, I will then deal with it when he testifies.

CHAIRPERSON: Yes, you could even hand it in. We wont pay attention to the other incidents at this stage, you could hand in the same statement on the later hearing. It won't ...(indistinct), you could deal with the same statements before us and before the next hearing, we will deal with the relevant sections now if you so feel.

MR DEHAL: I think perhaps when we get to his statement we'll deal with that.

CHAIRPERSON: Could somebody please call our secretary next door? Right, could you ...(intervention)

MR DEHAL: I think there's a problem with the interpretation as well. The second applicant speaks Zulu, he is not picking up the interpretation.

CHAIRPERSON: Could you say something so that we could find out whether he picks it up now?

MR DEHAL: He's not picking anything up. I think he's picking English only. He's on the Zulu channel though.

CHAIRPERSON: That's channel?

MR DEHAL: One I think.

CHAIRPERSON: One?

MR DEHAL: We're on channel two.

CHAIRPERSON: Yes and you're not picking up anything on channel one?

MR MSIBI: Yes.

CHAIRPERSON: Okay then maybe there's a fault with your ...(intervention)

MR DEHAL: I think the gentleman from behind us has gone to check the interpreters there. Thank you.

CHAIRPERSON: Yes. Could we perhaps in the meantime - you're calling who?

MR DEHAL: The first applicant will be Mr Msibi. He is recorded as the first applicant on the bundle. That's Mr Basil Fani Msibi, 5617/97.

CHAIRPERSON: He'll be speaking?

MR DEHAL: In English.

BASIL FANI MSIBI: (sworn states)

EXAMINATION BY MR DEHAL: Mr Msibi, you were the commander of the unit within which the second applicant, Mr Tshika, fell. Correct?

MR MSIBI: That is correct.

MR DEHAL: I show you your application, Basil Fani Msibi, contained on pages 1, 2, 3, 4, 5, 6 and 7. Is this your application?

MR MSIBI: Yes it is.

MR DEHAL: Is it correct that you wish to correct an error on page 2, paragraph 9(a)(iv) - right at the bottom, Mr Chairperson - where you deal with the nature and particulars of the incident and you say that the attack at oSizweni Police Station was carried out by four people you said that should have read three people?

MR MSIBI: Yes.

MR DEHAL: Two of which have passed away?

MR MSIBI: One of which has passed away.

MR DEHAL: So that would be one of which has passed away.

CHAIRPERSON: Three people?

MR DEHAL: One of which or one of whom has passed away.

CHAIRPERSON: So you asked ...(indistinct)

MR DEHAL: Indeed, thank you. Mr Msibi, is it correct that at some stage pursuant to your application being handed in the evidence analyst had approached you to enquire about persons involved in this operation and you talked about these persons who were deceased but in the response you see it talks about four people of which two have died?

MR MSIBI: Yes.

MR DEHAL: That's on page 8, Mr Chairperson. Do you see that?

MR MSIBI: Yes I see it.

MR DEHAL: And the same reference is made on your statement, page 10 of the bundle, where you say in the second paragraph three people and then you mention them by name, Basil Mavuso, Tembinkosi - whose last name I cannot remember - and Shusho Bafana Ndaba, who were all involved in the attacks for which I have applied for amnesty, have passed away. Then you say only one apart from yourself is alive and that's the second applicant, Tshika, correct?

MR MSIBI: That is correct.

MR DEHAL: Now these persons, these four people that you talk about and the two that have died or the three that have died in page 10, they did not relate purely to this incident on the police station, they were persons who related generally to all your activities, correct?

MR MSIBI: That is correct.

MR DEHAL: Thank you. Mr Msibi, your statement has been handed in - Mr Chairperson, I take it that everybody has got a copy, presumably this will be Exhibit A?

CHAIRPERSON: Exhibit A.

MR DEHAL: Mr Msibi, you have some scratches and alterations in your statement. I want you to pretend that they are not included in your statement because we agreed today to deal with these two counts only, namely the attack at oSizweni Police Station and the explosion at Glencoe Railway Station?

MR MSIBI: Yes.

MR DEHAL: You understand that?

MR MSIBI: I understand that.

MR DEHAL: Thank you. Now let's begin with your statement. You say that you are an adult male, you're presently residing at 420 Elite Street, 1341 Tambochi Flats, Sunnyside, Pretoria, that your amnesty application concerns incidents which occurred around 1986 in Northern Natal?

CHAIRPERSON: Sorry, can we have a copy of the statement for the interpreters perhaps?

MR DEHAL: Yes.

CHAIRPERSON: Thank you. You need not go through all the detail you could highlight after you've read the statement and highlight whatever you think necessary.

MR DEHAL: Thank you Sir. That's correct is it, Mr Msibi?

MR MSIBI: That is correct.

MR DEHAL: You began your political activity in early 1980s when you understood the prevailing political situation in the country and you took a keen interest in seeking to educate yourself on the prevailing political ideologies of the time. When you were in school you led a strike at Newcastle?

MR MSIBI: That is correct.

MR DEHAL: You then go on to deal with what happened to you after you matriculated, you talk about your friend, Bafana Ndaba, is he the one that's late?

MR MSIBI: That's the one.

MR DEHAL: And you say you discussed politics to a great extent with him, you desired to join the MK, you subsequently moved to Swaziland after having joined MK through Soweto, correct?

MR MSIBI: That is correct.

MR DEHAL: You talk about Happy Mfeka, is he alive?

MR MSIBI: I'm not sure if he's alive, the last time I saw him was in 1982.

MR DEHAL: You then said that it was your aim to formally join the ANC and become a member of the ANC structures. This Bafana was now late and you then travelled to Swaziland. On your arrival the Swaziland Police raided the ANC houses, you were arrested and taken to Malawelwela refugee camp. You then asked for political asylum from the United Nations Refugee body and you obtained that?

MR MSIBI: That is correct.

MR DEHAL: You were then taken to Maputo?

MR MSIBI: That is correct.

MR DEHAL: Pursuant to this political asylum?

MR MSIBI: That is correct.

MR DEHAL: There you were an ordinary MK member and you remained as one?

MR MSIBI: That is correct.

MR DEHAL: Thereafter you travelled to Angola. Here in Angola you were an instructor in topography and you later became a base commander?

MR MSIBI: That is correct.

MR DEHAL: Whilst you were a base commander you had about 180 comrades, MK comrades, under your command?

MR MSIBI: That is correct.

MR DEHAL: You were trained in all sorts of activities that general MK personnel are trained in, particularly intensive military training during this period?

MR MSIBI: Yes.

MR DEHAL: You then went to Soviet Union for a three month course in urban warfare.

MR MSIBI: That is correct.

MR DEHAL: On your return you went to Zambia and later to Swaziland. Whilst you were in Swaziland you received instructions from your then commander, Thembe Zulu?

MR MSIBI: That is correct.

MR DEHAL: Thembe Zulu's brief to you was to commence political activity in the Northern Natal region. This is a region that deals with the oSizweni Police Station attack and the Glencoe railway station attack?

MR MSIBI: That is correct.

MR DEHAL: And indeed the Newcastle attacks as well?

MR MSIBI: That is correct.

MR DEHAL: You say at that stage Northern Natal with the exception of Dundee and Sibongele had no UDF and ANC activities?

MR MSIBI: That is correct.

MR DEHAL: Your mission under the instructions of Thembe Zulu was to return to Northern Natal to achieve the political objectives of increasing ANC activities in that area?

MR MSIBI: That is correct.

CHAIRPERSON: When was that round about?

MR MSIBI: That was in 1986.

CHAIRPERSON: 1986. Thank you.

MR DEHAL: You say you then went to Newcastle for a few months, you analysed the social economic and political situation in that area, you returned to Swaziland to discuss the situation with your commander, Thembe Zulu and thereafter you advised Bafana Ndaba who had been recalled from Angola so that he could assist with your mission in Northern Natal, Bafana and you then returned to Newcastle?

MR MSIBI: That is correct.

MR DEHAL: On the next page you deal with how you lived in the Umsinga area, that you and Bafana began recruiting members to be part of a cell to carry out operations in the Newcastle area, you speak about at this time having continuously travelled to Swaziland on virtually a monthly basis to submit reports to your then commander Thembe Zulu?

MR MSIBI: That is correct.

MR DEHAL: That whilst you were in Swaziland you received news that Bafana was shot in the police shoot-out?

MR MSIBI: That is correct.

MR DEHAL: That you had little information regarding this shooting but Thembe Zulu, your commander, thought it would be best if you remained in Swaziland for a while until things cooled down back home?

MR MSIBI: That is correct.

MR DEHAL: You then severed your contact with the cells that Bafana and you had created?

MR MSIBI: That is correct.

MR DEHAL: For logistical reasons?

MR MSIBI: Yes.

MR DEHAL: And security reasons?

MR MSIBI: That is correct.

MR DEHAL: During this stage the ANC command structure in Swaziland acknowledged Bafana's death had created a gap and that you required another individual to take Bafana's position and that some time thereafter you advised that second applicant, Tshika, had been chosen for this position?

MR MSIBI: That is correct.

MR DEHAL: This is the first time that you met Tshika?

MR MSIBI: That is correct.

MR DEHAL: You embraced him as a part of your command?

MR MSIBI: That is correct.

MR DEHAL: You had met Tshika briefly in Swaziland around 1986?

MR MSIBI: Yes that is correct.

MR DEHAL: Then your commander, Thembe Zulu, gave you instructions that you are to return to Newcastle to create more cells so that on Tshika's arrival it would be easier for you all to carry out the mission of the ANC?

MR MSIBI: That is correct.

MR DEHAL: You then did return to Newcastle, you created a few more cells. When preparations of these cells were finalised, arrangements were made for you to fetch second applicant Tshika at Lothair near Ermelo?

MR MSIBI: That is correct.

MR DEHAL: You travelled to Lothair to fetch second applicant Tshika and you returned to Newcastle?

MR MSIBI: That is correct.

MR DEHAL: You briefed second applicant Tshika about the political situation in the area, the cells that you had created, the members of those cells and how he should go about his work there?

MR MSIBI: That is correct.

MR DEHAL: It was agreed between you two that you would not however meet the cell members as they, if you did meet them, would easily then identify you and report your activities to the Security Police?

MR MSIBI: That is correct.

MR DEHAL: So as to remain away from this security hazard you, however, remained in a separate room, in a separate home, only to the knowledge of second applicant Tshika?

MR MSIBI: That is correct.

MR DEHAL: So that Tshika would come to you from time to time, discuss matters of political nature, targets, identified them and you would then liaise with your commanders in Swaziland to receive prior permission and you would then liaise with Tshika in response on what the outcome of that conversation with your commanders were?

MR MSIBI: That is correct.

MR DEHAL: So that the members of the cell at grassroots level did not meet you so as to keep your identity away from risk?

MR MSIBI: That is correct.

MR DEHAL: However thereafter, for protocol reasons, you and Tshika agreed that Tshika would visit you about once a week for briefings?

MR MSIBI: That is correct.

MR DEHAL: At these weekly visits you often discussed the prevailing situation and proposed targets to achieve your mission, only Tshika the second applicant knew where you lived, the other cell members did not even know of your exact whereabouts?

MR MSIBI: That is correct.

MR DEHAL: You then say that you identified during this time various targets in the area, you liaised with the command structure, Thembe Zulu, Chief of Operations, Charles Ndaba, Ralph Ophea, Chief of Staff in Swaziland. Sometimes the command structure approved the targets and at other stages they declined?

MR MSIBI: That is correct.

MR DEHAL: Apart from that general background you're now dealing with four legitimate targets that were identified?

MR MSIBI: That is correct.

MR DEHAL: I'll deal briefly with two. The one deals with the Newcastle court explosion, the other deals with the Newcastle game centre explosion, correct? Those were the two legitimate targets amongst the four?

MR MSIBI: That is correct.

MR DEHAL: But we wouldn't go into the details of those two for the time being. Now let's deal with the other two. Those were the oSizweni Police Station attack, of the 10th October 1986 and the explosion at Glencoe railway station at Dundee, correct?

MR MSIBI: That is correct.

MR DEHAL: These two were also identified as legitimate targets, correct?

MR MSIBI: That is correct.

MR DEHAL: Now the oSizweni Police Station attack, you chose as there were general outcry in the area because of the manner in which the police treated the people?

MR MSIBI: That is correct.

MR DEHAL: You believed that if you attacked the police station it would show that you were there to defend the people's interest. Secondly, you wanted to generate political interest in the ANC and further you wanted to obtain the firearms that were stored in the police station so as to arm yourselves to obtain your political ANC objectives?

MR MSIBI: That is correct.

MR DEHAL: The police station was identified and agreed to as a legitimate target?

MR MSIBI: That is correct.

MR DEHAL: You then go to the Glencoe railway station aspect and you say this was also selected as a legitimate target. You had mainly two reasons for choosing this station. Firstly you say you were aware that between Glencoe and Vryheid there was the Shlobane Coal Mine, this was the economic lifeline to a certain extent of the country, at that time economic sanctions were still in place. South Africa was trying to generate its own fuel. You believed that by targeting this area it would in fact sabotage South Africa's efforts of economic growth?

MR MSIBI: That is correct.

MR DEHAL: You say Dundee, the second reason, the broad second reason, Dundee was politically very active at the time. The police concentrated all their efforts there, correct?

MR MSIBI: That is correct.

MR DEHAL: You believed that the targeting, that targeting the Glencoe area would as a result effectively mean the police would have to divert their resources?

MR MSIBI: That is correct.

MR DEHAL: You then say that you did not personally deal with all these attacks except for one?

MR MSIBI: That is correct.

MR DEHAL: The one incident that you participated in personally was the one dealing with the attack on oSizweni Police Station on the 10th October 1986?

MR MSIBI: That is correct.

MR DEHAL: You say you personally involved yourself here because it was a sensitive operation?

MR MSIBI: That is correct.

MR DEHAL: You did not see the other members of your command as being qualified or competent enough to deal with so high profiled an operation?

MR MSIBI: That is correct.

MR DEHAL: In the circumstances you accompanied the second applicant and another member, you went across to that police station and carried out that operation?

MR MSIBI: That is correct.

MR DEHAL: The other person of course, apart from you and the second applicant, was Tembinkosi?

MR MSIBI: That is correct.

MR DEHAL: This Tembinkosi is now late, is it?

MR MSIBI: That is correct.

MR DEHAL: You then add later by saying it would be impractical to involve the other cell members as they had little if no training in the handling of firearms. Tembinkosi was used purely as a lookout, you believed that you should minimise casualties and that the two of you, that's namely you and second applicant Tshika, were the most competent to carry out this attack?

MR MSIBI: That is correct.

MR DEHAL: You then say that after these attacks and shortly thereafter the situation became very tense in the area. People had identified you to the Security Police and it became impossible for you to operate in the area. You then returned to Swaziland?

MR MSIBI: That is correct.

MR DEHAL: Whilst you were in Swaziland you were involved in other activities, that is outside the borders of South Africa, but you say that you had been advised by your legal representatives not to deal with those in detail but you mentioned it purely for full disclosure because they fall outside the borders of South Africa?

MR MSIBI: That is correct.

MR DEHAL: Then you end up broadly by saying that these attacks that you gave instructions for were not aimed at any particular individuals, it was always directed purely at existing governmental structures, that you were aware that certain individuals were hurt during these attacks, this was unfortunate?

MR MSIBI: Yes that is correct.

MR DEHAL: You say that you support the second applicant Tshika in his application for amnesty, you confirm that Tshika the second applicant performed all the acts for which he seeks amnesty whilst under your command with your full knowledge and consent?

MR MSIBI: That is correct.

MR DEHAL: Except for the Durban incidents?

MR MSIBI: Except for the Durban incidents, yes.

MR DEHAL: And that after each of these acts were first discussed with your seniors in command where necessary and after having first obtained their prior approval you then conveyed their approval to the second applicant and then these operations were carried out?

MR MSIBI: That is correct.

MR DEHAL: You then say that the political objective to destabilise the country's apartheid regime was the objective and to contribute generally towards a general economic political and social upheaval?

MR MSIBI: That is correct.

MR DEHAL: You say that by always acting within the purview of the ANC's then acceptable guidelines these operations were identified as falling within the ambit those guidelines?

MR MSIBI: That is correct.

MR DEHAL: Now Mr Msibi, you speak generally in your application for amnesty on pages 3 particularly and generally elsewhere about various persons who trained in various cells under your command. You say that it is difficult for you - this is on page 3 right on the top, Mr Chairperson, in the application for amnesty, dealing with Nature and Particulars under paragraph 9(a)(iv). You say that it is difficult for you to give details about various explosive attacks that were carried out by the people you trained in South Africa. It is therefore difficult also for you to give the particulars of those attacks, the name of those victims, the place of those attacks, because given the nature of the set up of your operation, once instructions were disseminated to the commanders like second applicant Tshika, all the operations that were carried out were not all totally discussed with you and the command structure in Swaziland. Some incidents fell generally within the general purview of the guidelines of the ANC and were acceptable broadly and therefore you have no full knowledge of them all and can't give full details of them all?

MR MSIBI: That is correct.

MR DEHAL: But you accept political responsibility for all of those activities?

MR MSIBI: That is correct.

MR DEHAL: Thank you. Mr Msibi, apart from that you confirm the correctness of the political content of your application for amnesty because you dealt with that somewhat broadly in paragraphs 10(a), 10(b), there's no need for me to read that into the record, you confirm the correctness of that?

MR MSIBI: Yes that is correct.

MR DEHAL: That deals with the political situation in the country, the apartheid regime and your wanting to bring them down as the broad principle of MK?

MR MSIBI: That is correct.

MR DEHAL: And lastly, do you then confirm apart from those paragraphs in Exhibit A that have been deleted the correctness of the rest of which is contained therein even if I have not dealt with them specifically?

MR MSIBI: That is correct.

MR DEHAL: Mr Chairperson, that's the evidence of the first applicant, thank you.

CHAIRPERSON: Could you kindly elaborate on the attack on the police station itself, the carrying out of the attack, what he did, what they found there, was it a shoot-out, was it explosives used, details of that particular attack?

MR DEHAL: Thank you. Mr Msibi, may I take you to that attack. Firstly you say that you, the second applicant Tshika and Tembinkosi went to this police station?

MR MSIBI: That is correct.

MR DEHAL: I understand that a phone call was made to the police station to deal with a decoy?

MR MSIBI: That's what I read from the bundle but we were not part of that phone call.

MR DEHAL: So neither you nor any of your cell members made that phone call?

MR MSIBI: No.

MR DEHAL: So that decoy is not something that falls within your knowledge?

MR MSIBI: No.

MR DEHAL: And is not something that you committed?

MR MSIBI: No.

MR DEHAL: Thank you. You however arrived at the police station armed?

MR MSIBI: That is correct.

MR DEHAL: You three then remained outside in a nearby bush observing the police station?

MR MSIBI: Actually we were standing just on the street across the police station.

MR DEHAL: Had this police station been reconnoitred by them?

MR MSIBI: Yes it had been, two weeks before.

MR DEHAL: And the reconnaissance had led you to identify this as a legitimate target?

MR MSIBI: That is correct.

MR DEHAL: And did your command structures in Swaziland know about this attack?

MR MSIBI: Yes they did.

MR DEHAL: Prior to it being carried out?

MR MSIBI: They did, that's correct.

MR DEHAL: And did they support you in the application?

MR MSIBI: They did support me.

MR DEHAL: Sorry, not in the application, in the attack.

MR MSIBI: In the operation.

MR DEHAL: In the operation, yes. Now can you tell this Committee briefly what happened from the time you were on that road to the time the operation was carried out? In your own words, slowly please, remember it's being interpreted?

MR MSIBI: Basically, in the planning of the operation, we had agreed that myself and Tshika were the actual people who were supposed to carry out the operation. I was armed with an AK47 with two magazines, which means 60 rounds, three F1 handgrenades and Tshika had the same ammunition. The mode of operation that we used was that Tshika had to move in right at the gate of the police station and then start firing from there to give myself a chance to enter through the police station back through the other part of the police station at the back of the police station, that in which would give me time to get into the charge office ...(intervention)

MR DEHAL: Slowly, let them interpret it?

MR MSIBI: That would give me some time to get into the charge where we intended to get the firearms but due to the unforeseen circumstances that happened during the operation, it became difficult for us to get into the police station because we had thought that only one person would be at the gate but when we arrived there were more than two people at the gate and we could not postpone the operation because our waiting there could have exposed us before we could carry out the operation. We then decided to move in, start the attack. In the process then there was an exchange of fire, there was fire that came in from the police station and then we returned to the bushes that were near the police station.

MR DEHAL: What did Tembinkosi do?

MR MSIBI: Tembinkosi basically was on the lookout but when the fire started he was firstly shot, it took him time to recover because he ran across the street. After some time, I don't know how long did it take him, he then came back towards the police station to join us at that time. Maybe he was confused, he didn't know what to do and when we retreated he retreated with us.

CHAIRPERSON: Sorry, was he wounded?

MR MSIBI: No, he was not wounded.

CHAIRPERSON: Oh, was he shot at then he retreated?

MR MSIBI: He was not shot at, he was just running away. He was shocked by the sound of gunfire.

CHAIRPERSON: Oh, shocked.

MR MSIBI: Shocked.

CHAIRPERSON: What happened to your car?

MR MSIBI: We didn't have a car.

CHAIRPERSON: Oh, you didn't come with a car?

MR MSIBI: No.

CHAIRPERSON: As far as you know was anybody injured?

MR MSIBI: As far as I know or I knew nobody was injured but we sent Tshika the following day to find out exactly what happened. We got it from the news that some policemen were injured but we didn't know the exact number of how many people were injured.

CHAIRPERSON: I see. Could you assist us, do know whether anybody was injured in this attack?

MS MTANGA: Yes Chairperson, two policemen were injured. Mr Ndwandwe and a Mr Msibi.

CHAIRPERSON: Thank you and they've been notified?

MS MTANGA: Both of them were notified but they've indicated that they won't be coming and they have not attended the hearing.

CHAIRPERSON: Thank you.

MS MTANGA: Thanks, Chairperson.

MR DEHAL: May I assist there, Mr Chairperson? These two victims statements are included in the bundle, the one at page 24 and they have both indicated in their statements as well that they do not oppose the application for amnesty.

Mr Msibi, you spoke about your reconnaissance having led you to believe that there would be no more than one person at the entrance but when you arrived there you saw that there was more than one person. I presume there were two persons?

MR MSIBI: Yes.

MR DEHAL: Now if I may just show you, there's a statement on page 24 of the bundle of Simon Tamsanka Ndwandwe. He is a policeman who was also injured, who also does not oppose your application for amnesty but he says in paragraph 2, on the 10th October 1986 and that's the date of the operation?

MR MSIBI: That is correct.

MR DEHAL: He was off duty but he was at the police station assisting due to shortage of members. So is that the reason could you submit why you were taken by surprise and saw more than one?

MR MSIBI: I believe that's the reason.

MR DEHAL: Did you manage successfully to obtain firearms from the police station or was that operation to that extent unsuccessful?

MR MSIBI: To that extent the operation was unsuccessful.

MR DEHAL: And the injuries sustained to the policemen, surely this must have been anticipated?

MR MSIBI: That is correct.

MR DEHAL: As being a possible event?

MR MSIBI: That is correct.

MR DEHAL: Policemen generally are dealt with in the first and second submissions of the ANC as legitimate targets by Mr Mac Maharaj, by Mr Modise, Mr Valli Moosa etc. Do you support and embrace those submissions about policemen and police stations as legitimate targets identified by the ANC at the time for the broader political reasons dealt with in the first and second submissions of the ANC to the TRC?

MR MSIBI: Yes, I fully embrace those submissions.

MR DEHAL: And did you at the time of your reconnaissance, discussions on this operation relative to this police station and the eventual decision to attack the police station have regard to the broader spectrum of legitimate targets within the country, hard targets, soft targets, eventual injuries to policemen and you embrace that?

MR MSIBI: That is correct, I do.

MR DEHAL: With that knowledge you proceeded with this application?

MR MSIBI: That is correct.

MR DEHAL: Today, how do you feel about the injuries to these two policemen?

MR MSIBI: Basically I feel sorry that people got injured but it's unfortunate that it had to happen due to the situation the country was in, this was an act that could not be avoided.

MR DEHAL: Being apologetic for their injuries inasmuch as they do not oppose your application you say that it was at the time an accepted operation, legitimate and you carried it out fully, wanting to pursue it?

MR MSIBI: That is correct.

MR DEHAL: Thank you Mr Chairperson. Do you wish that I deal with the other operation at the same detail level or - there are no persons injured in that operation, there's no opposition as well.

CHAIRPERSON: Only for the sake of the record. I see on page 24 it's also referred to, Msibi having driven a car and parked opposite the road - that was not the applicant, it was a policeman at the station?

MR MSIBI: Correct, yes.

CHAIRPERSON: Yes I think you could proceed with the second operation.

MR DEHAL: Mr Msibi, can we just deal briefly now with that second explosion, you know the explosion at Glencoe railway station in Dundee?

MR MSIBI: Yes I do.

MR DEHAL: In your application for amnesty you broadly spoke about the Glencoe railway station, that you said there were two broad reasons, main reasons why you chose them, you talked about economic sabotage, you talked about economic sabotage, you talked about the coal, the lifeline between Vryheid, Glencoe and Shlabane Coal Mine and you talked about Dundee being very politically active, that the police concentrated all their efforts there and that targeting the Glencoe area it would effectively mean that the police would have to divert their resources, do you remember that?

MR MSIBI: Yes I do.

MR DEHAL: Now let's deal with some detail. How was this operation carried out? I know that you said you were not personally involved in this operation. Do you know what the details were as to how it was carried out? Can you tell or were you not there?

MR MSIBI: What I can inform the Committee is that the planning of the Glencoe operation was basically done by myself with the consultation of my senior commanders in Swaziland and Mr Tshika here. I think what was happening in that area, at Glencoe/Dundee area was that Sibongele, that's a Black township next to Dundee, was very active in the area and that was the only place that was active in the area at that time and most of the police resources were concentrated in that area because I think in their minds it looked like a black spot of the area and they had to work it out and considering that we thought that we need to activate other areas around Dundee politically so that to stretch the resources of the police which will give a breathing space to the activities that were taking place in Dundee and at the same time the people of Glencoe and the surrounding areas, Vryheid, to be actively involved in the political struggles that were taking place in the area.

One other consideration that we made was that we believed that Shlobane and the other areas, that is the coal mine around Vryheid and the other areas where it's a coal area, the whole area of Northern Natal, we believed that these were the coal mines that were supporting basically the Sasolburg Oil Refinery that was taking place there. I think on several occasions that oil refinery had been attacked, South Africa was in the process of trying to break the oil embargo by producing their own oil from coal so we thought it was a legitimate economic target to make sure that the coal that Sasolburg was waiting for from the mines could not reach them by blowing up the railway lines so as to make sure that nothing comes out from the coal areas to Sasolburg.

The execution of the operation, I was not there but I was fully informed of what took place and I knew exactly what was going to take place.

MR DEHAL: You gave instructions for this operation to be carried out pursuant to receipt of instruction from Swaziland's structures, command structures, that is was a legitimate target and it ought to proceed?

MR MSIBI: That is correct.

MR DEHAL: For the reasons, broadly speaking, politically that you've just dealt with?

MR MSIBI: That is correct.

MR DEHAL: Now was a limpet mine used or was there more than one limpet mine used?

MR MSIBI: I may not be exactly sure of how many limpet mines were used but the end result which was communicated in restructuring was to cause a damage that will cost more days to repair so it might have been one or more than one limpet mine used.

MR DEHAL: Was it intended to derail the trucks itself or was the railway lines intended to be destroyed?

MR MSIBI: It was the railway lines that were intended to be destroyed.

MR DEHAL: And these instructions to carry out the operation were given by you to second applicant and second applicant had the discretion to decide on who he would embrace from all the cells, the various cells, to help him in the execution?

MR MSIBI: That is correct.

MR DEHAL: So more than that you cannot give any further details?

MR MSIBI: That is correct.

MR DEHAL: Did you support second applicant on his application for amnesty on this operation?

MR MSIBI: That is correct, I fully support it.

MR DEHAL: Thank you. Thank you Mr Chairperson.

CHAIRPERSON: Any questions?

CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, thank you, I have a few. Mr Msibi, in your affidavit on page 4, paragraph 14, you state that your operations or the instructions that you were given were directed purely at existing government structures?

MR MSIBI: Maybe I should have said the then existing government structures.

MS MTANGA: What was the position of the policemen who worked in those structures in regard to these instructions?

MR MSIBI: It's very unfortunate, as I said before, because the ANC submissions made it clear that the police were seen as a legitimate target. In most cases the policemen were used to defend the apartheid laws that were being executed and they were the people who were the first line in defence of apartheid. That's how they were viewed so as much as we saw that some people get hurt but as I said it was an unfortunate situation that it had to happen that way. I think it's basically why the issue of armed struggle was also coupled with the political education, it was also necessary to educate those policemen for them to understand not to defend the apartheid policies but unfortunately it had to go concurrently, it couldn't wait and then started then.

CHAIRPERSON: I think it's common cause, the Committee is aware of, that policemen were regarded as legitimate targets.

MS MTANGA: What was your plan and your attitude towards people who had been at the police station at that time or in the vicinity of the police station?

MR MSIBI: I think if you look at the timing of the attack it was meant to make sure that as few as possible innocent people would be at the police station at that time. We were actually trying to avoid a situation by where you will find that civilians were caught in the crossfire which I think and am still convinced by now that at least we successfully achieved that objective.

MS MTANGA: On page 100 - sorry, on page 64 of the bundle, we have an affidavit by Mr Mazibuko, Mavena Ismail Mazibuko and further on page 100, there's a reference in the indictment to the attack on the vehicle of Mr Mazibuko.

MR DEHAL: Sorry, can I just get to that page?

MS MTANGA: Okay.

MR DEHAL: What page is that?

MS MTANGA: The affidavit is on page 64 and the reference on the indictment is on page 100.

MR DEHAL: What paragraph of page 64?

MS MTANGA: I'm just dealing with the affidavit in general, that Mr Mazibuko was shot at during that incident at the police station and according to page 100, that is in the court documents, it was alleged that this person was shot by Tembinkosi who was said then is accused number three. What is your attitude towards that?

MR MSIBI: Firstly, unfortunately, it is in Afrikaans and I don't understand Afrikaans and the second point, I'm not sure because firstly I was not arrested - of the legitimate of this indictment, it came out in Mr Tshika's trial.

MS MTANGA: Okay, if I may just explain to you, Mr Mazibuko has attended this hearing, he was a civilian driving a vehicle, Toyota bakkie, NN9436 as described on page 64 and his evidence is that he was shot at by a person and he was with a friend in that vehicle and he was shot at during the incident at the police station and he was not wearing any police clothes, he was just an ordinary civilian driving his car.

MR MSIBI: I think I said earlier on that the timing of the attack was meant to minimise the civilian population being caught only in the crossfire. According to my knowledge and according to what Tembinkosi - I'm sorry, Mr Tshika told us, after his revisiting the police station the following day is that we were not aware of any civilian that got hurt during the operation.

MS MTANGA: My next question is you've indicated that the area of oSizweni, was some political activity in the area?

Just excuse me for a second? Okay, you say in your affidavit, that's page two paragraph 10:

And you further go on and say you wanted to generate political interest in the ANC but I'm more interested on the first issue where you say there was a general outcry about how can we be treated by the police. According to the two affidavits of the two policemen, that is Mr Ndwandwe and Mr Msibi, those are on page 32 and page 30 of the bundle, they testified that the area of oSizweni was very quiet politically and there was no such conflict between the community and the police. What do you say to this?

MR DEHAL: Sorry, before he answers, least the record reads incorrectly, they have not testified, the questioning in that regard is incorrect, all they've done is deposed to affidavits to that effect, that is untested versions. I also see that present in there and against that background ...(intervention)

CHAIRPERSON: They've been put as affidavits statements in affidavits and he's being asked for his comment?

MR DEHAL: Yes except that it's not testimony.

CHAIRPERSON: Yes, well it's a statement and on the affidavit it's not testimony in a court but it's evidence before us, you've been given copies thereof and we would attach, we'll decide what value can be attached because you're not in a position to cross-examine them and to test their affidavits.

MR MSIBI: That's correct, there was no political activity in the oSizweni area but as to the brutality of the then KZN in the area that's what prompted us to take that action.

MS MTANGA: Can you help me understand, when you say there was brutality by the police, if there was no political activity in the area how would this brutality come out or how did you see it coming out?

MR MSIBI: The brutality in that area basically, as I said, there was no political activity in the area, it was - I think you should realise that the Newcastle area the establishment of KZN Police. There was animosity between the community and then that structure and for the KZN Police to stamp authority, on several occasions people were raided at night for no apparent reason, people were beaten on the streets, if you find a girl standing with a boy they will be beaten up, taken, arrested for the night and all those things. That was not political but these were the brutalities that were committed by KwaZulu Police to the general community.

MS MTANGA: Thank you. Chairperson, can I be allowed to just have a minute or two consultation with Mr Mazibuko?

CHAIRPERSON: Yes, would you like us to have a short adjournment?

MS MTANGA: No Chairperson.

CHAIRPERSON: Okay.

MS MTANGA: Thank you Chairperson. Mr Msibi, there are two question that Mr Mazibuko would like to put to you. The first one being that what political objective were you seeking would you say was sought in the attack of his car because his evidence is that he was driving far away from the police station, driving from a different direction from the police station and he was attacked by someone who could see that he was a civilian?

MR DEHAL: Sorry, Mr Chairperson, I have difficulty with that question because we've already got on record a question dealing with this person Mazibuko, and the answer from the applicant was at best he was caught in crossfire, "I did not know of him, he was not identified."

CHAIRPERSON: He could tell us that, he could tell us that that could be his answer to the - allow him to give his answer, it's a legitimate question. Let her ask it and allow him to answer it, it's not necessary for you to interrupt and give the evidence.

MR DEHAL: No, I'm not giving the evidence, I'm simply saying what's on record. What's on record is that he's already ...(intervention)

CHAIRPERSON: She could ask him about it again, I would allow the question.

MR DEHAL: Thank you Chairperson.

MR MSIBI: I think as I said earlier on it might have been a civilian caught in the crossfire but what then surprises me is as you referred on page 64, I can't read Afrikaans, but you say to me he mentioned Tembinkosi, that surprises me. It was dark at night, he was driving ...(intervention)

MS MTANGA: May I correct you? He was said to be the accused number three who actually shot at Mr Mazibuko, that's what the court documents say there?

MR MSIBI: Unfortunately I'm not aware of that. I was there in the operation, I didn't see that action taking place.

MS MTANGA: Are you ...(intervention)

CHAIRPERSON: Sorry. You yourself didn't shoot at him?

MR MSIBI: No.

CHAIRPERSON: You're not aware whether there could be a straight bullet hitting the car?

MR MSIBI: There could have been a straight bullet because there was a crossfire, the police were also back at us.

CHAIRPERSON: Yes and on Mr Mazibuko's version or on the police version they linked this bullet to Mr Tembinkosi but you're not aware, he wasn't with you at the time?

MR MSIBI: He was with me at the time.

CHAIRPERSON: Yes but not next to you in the sense when the shooting took place, he was shot and he ran into the bushes?

MR MSIBI: That is correct.

CHAIRPERSON: So you were separated at one stage?

MR MSIBI: That is correct.

CHAIRPERSON: You don't know what he did at that stage when he ran into the bushes, maybe he got frightened and he started shooting at people?

MR MSIBI: That is correct.

CHAIRPERSON: Yes.

MS MTANGA: Thank you Chairperson. The second question that Mr Mazibuko would like to put to you is he wants to know if are you aware that after this incident his vehicle disappeared to this day and he doesn't know what happened to it. It was a subject matter of being evidence in court against your co-applicant Mr Tshika and it disappeared and it could not be traced. Are you aware of this?

MR MSIBI: I'm not aware of that. Maybe to clarify some matters because it might leave another impression on this Committee is that my units, under no circumstances were they involved in any criminal activity because I would regard that as a criminal activity. Thank you.

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

CHAIRPERSON: Mr Msibi, I'm glad that you informed us that your units weren't involved in criminal activities. You never authorised any criminal activities yourself, authorised them to rob for instance a shop or anything like that?

MR MSIBI: No.

CHAIRPERSON: Thank you.

ADV BOSMAN: Mr Msibi, at the time when you fired did you simply fire to scare off any resistance or did you fire regardless of whether someone could get killed or wounded in the attack?

MR MSIBI: I think it would be a joy of every soldier if you can fire and get no resistance because it means you can get whatever you want without any resistance. We wished there could be no resistance but we knew there was going to be resistance.

ADV BOSMAN: Did you foresee a possible death of a person?

MR MSIBI: Yes we did.

ADV BOSMAN: Just bear with me one moment, Chairperson?

As far as this vehicle is concerned did you observe a vehicle at any time whilst this attack was on the go?

MR MSIBI: No, the only vehicle we observed was a police vehicle that was parked at the gate when we arrived.

ADV BOSMAN: And the firearms that you were carrying, I take it that those were unlicensed firearms?

MR MSIBI: That is correct.

ADV BOSMAN: So for purposes of the law you were in unlawful possession of firearms?

MR MSIBI: That is correct.

ADV BOSMAN: Yes, thank you. Thank you Chairperson.

CHAIRPERSON: And that would form part of your application in this case, part and parcel of the amnesty you're seeking?

MR DEHAL: That is correct.

CHAIRPERSON: Being in possession of the firearms connected with this particular attack?

MR DEHAL: And generally firearms with all operations. You see, as a commander he brought into the country lots of firearms, ammunition, limpet mines, explosives and was the conduit pipe for the transferral of these things.

CHAIRPERSON: Would that be covered by his application?

MR MSIBI: He speaks broadly and generally about that, yes.

CHAIRPERSON: He is speaking about contravention of the Terrorist Act and in the indictment referred to there was mention of a lot of weapons being involved in different attacks and he is referring to the case, so it would be covered I think?

MR DEHAL: Yes.

CHAIRPERSON: Thank you.

RE-EXAMINATION BY MR DEHAL: Mr Chairperson, could I just for the sake of clarity and again least the incorrect impression be created, if the record read later, deals with just two aspects emanating from my learned colleagues questions?

Mr Chairperson, the first, second submissions of ANC and the Security Force hearings day one are aspects that deal at length with the type of activities the applicant is involved in. I did not want earlier to deal with them for fear that I'll burn the record but I want to ...(intervention)

CHAIRPERSON: Would you kindly refer us to the pages, it would be sufficient.

MR DEHAL: Thank you. Firstly, Mr Msibi, you see here on the further submissions and responses by the ANC to questions raised by the Commission for Truth and Reconciliation, 12th May 1997, on page 17, do you recall this having been said in the submissions at the conclusion? Do you mind just reading this part, I'll show you from here to here? It's just one paragraph.

MR DEHAL: Thank you. You said earlier that you embraced these submissions?

MR MSIBI: That is correct.

MR DEHAL: Do you repeat the sentiments expressed herein to the victims as well?

MR MSIBI: That is correct.

MR DEHAL: Now if I may take you to the Security Force hearing transcript day one on the 12th May 1997, held at Cape Town, on page 68 onwards Mr Tim Modise after Mr Valli Moosa spoke was the one who dealt with police personnel as legitimate targets generally. Do you mind just reading this one paragraph here when the Chairperson asked Mr Modise questions about the policemen, the Modise then talks about it?

MR MSIBI: It reads as such:

MR DEHAL: Do you embrace that generally as an acceptable explanation as well?

MR MSIBI: That is correct.

MR DEHAL: Do you see thereafter ...(intervention)

CHAIRPERSON: Mr Dehal, I've told you that for the purposes of this hearing we accept that the police were legitimate targets, so I don't think you need go into that further. We've heard lots of evidence about that and we have all through the hearings - if we've got any problem with that, we'll really put it to you and tell you listen, deal with this, but I've got no problem as far as the targeting of the police station was concerned in the sense that police were legitimate targets.

MR DEHAL: Thank you. Mr Chairperson, I'm indebted to you, in fact it saves me a lot of time. Can I just deal at a tail end with that aspect but at a different - at a tangent level? It's just one last aspect.

Mr Msibi, you see here after in this transcript of the first days Security Force hearings Mr Modise is then questioned about some good policemen that existed and he speaks about the good policemen were blurred by the actions of those who were brutal and that in fact all policemen were given the task of finding the ...(indistinct) persons and eliminating them. You were aware of this were you not?

MR MSIBI: That is correct.

MR DEHAL: And that generally the police were the front-line of the counter-mobilisation struggle strategy against our offensive?

MR MSIBI: That is correct.

MR DEHAL: Thank you. Mr Chairperson, that is all. If I may just repeat that this applicant has embraced, endorsed and asked that his application for amnesty be read in conjunction with the first day, the second day's submissions and the Security Force hearings. Thank you.

CHAIRPERSON: Thank you. Any further questions? Are you calling the second applicant?

MR DEHAL: Indeed yes. Thank you.

CHAIRPERSON: I'm not aware of time at this stage.

MR DEHAL: It's twenty past twelve.

CHAIRPERSON: Okay. Let's proceed with the second applicant.

MR DEHAL: Mr Chairperson, the second applicant will testify in Zulu and may he be sworn in?

TSUKU TSHIKA: (sworn states)

EXAMINATION BY MR DEHAL: Thank you.

CHAIRPERSON: Mr Dehal, if you - I'll leave it to you but if you've prepared a statement you could hand it in, I assure we wouldn't take recognisance of what's not relevant in this but it may assist you in leading and it may assist us in dealing with the matter.

MR DEHAL: Mr Chairperson, I'm pretty sure it will assist a great deal if I were to hand the statements. Could I ask for a short adjournment at this stage so I could clean it up the best I can, namely to delete the correct aspects in consultation and not the others. I did not intend to hand it in so once that's prepared I could send it to you in chambers and see whether we've got ...(intervention)

CHAIRPERSON: Yes, if possible I thought we may be able to finish before lunch time with the evidence, I don't want to delay things.

MR DEHAL: I'd be at most five minutes.

CHAIRPERSON: Okay, thanks.

MR DEHAL: Thanks.

CHAIRPERSON: Would it shorten the proceedings if you use the statement instead of the oral evidence?

MR DEHAL: It would indeed, yes. Rather, it would help to follow it from your perspective, thank you.

ON RESUMPTION

TSUKU TSHIKA: (s.u.o.)

MR DEHAL: Thank you.

ADV BOSMAN: For the record then that would be Exhibit B then?

MR DEHAL: Indeed.

CHAIRPERSON: As far we could grant forgiveness, we're forgiving you.

MR DEHAL: Thank you. The applicant has been sworn in I presume?

CHAIRPERSON: Yes.

EXAMINATION BY MR DEHAL: Thank you. Mr Tshika, you are the second applicant in this matter. You do know the first applicant do you not? He was your commander for these operations that we are dealing with today, correct?

MR TSHIKA: Yes I do.

MR DEHAL: Your application for amnesty is contained within this bundle on pages 12 to 18. If I may just take you to your copy of the bundle, that is your application, you confirm that?

MR TSHIKA: That is correct.

MR DEHAL: Do you see that throughout your application given the ...(indistinct) of information you had, namely the absence of the indictment, you could not give much information about the dates of the incidents, the various incidents in it's individual detail, the persons who were injured, the names, places, etc, correct?

MR TSHIKA: That is correct.

MR DEHAL: But what I see you did is that on page 13 you referred to - you may look at my copy because we're seated next to each other. On page 13 you refer to Durban and Newcastle incidents. So that encompasses the application, your general application for amnesty for all those incidents in Durban and Newcastle, correct?

MR TSHIKA: That is correct.

MR DEHAL: And when in the proceedings paragraphs you dealt with convicted of Terrorism Act No, that of 1982, were you referring to the indictment itself and not just the one count of terrorism but all of those counts you regarded them as terrorist activities as viewed by the then government?

CHAIRPERSON: Well he is referring to the court case, so he is incorporating at least the acts referred to in the indictment.

MR DEHAL: Thank you. That was the point being made, thank you.

Yes and then generally, in the last paragraph, you say on page 14, paragraph 10(a) that your political objective sought to be achieved was to liberate the oppressed majorities, to overthrow the racist apartheid government and to put into power non-racial democratic elected government, correct?

MR TSHIKA: That is correct.

MR DEHAL: And in the next paragraph, the last paragraph of this application, you say that the political opposition to the apartheid policy was being suppressed and you objectives of the ANC political terror acts was to change this?

MR TSHIKA: That is correct.

MR DEHAL: Now before we proceed with your statement, you've heard the testimony of the first applicant, your then commander, do you confirm the correctness of his testimony insofar as it relates to you and insofar as it relates to the counts for which you seek amnesty?

MR TSHIKA: That is correct.

MR DEHAL: Mindful of course of the fact that today we are dealing only with the two incidents, the attack on oSizweni Police Station on the 10th October and the explosion at Glencoe railway station in Dundee, will you please proceed through Exhibit B, you statement, and deal with those? I think you have a copy there in front of you? Can I take you through that statement?

MR TSHIKA: Yes.

MR DEHAL: Firstly, these two operations are operations that you personally participated in, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: Secondly, in the oSizweni Police Station operation you carried out that operation under the command of the first applicant and with one Tembinkosi, correct?

MR TSHIKA: That is correct.

ADV BOSMAN: May I just alert our sound technician that I have no sound here please? Thank you, you may proceed.

MR DEHAL: Thank you ma'am. Mr Tshika, in Exhibit B you deal with the general background and you begin by saying that you're an adult male residing at 27 Flat Grown Road, Caversham Glen, Pinetown, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: You say you apply for amnesty for the incidents that occurred in Newcastle around 1986, those are the two Newcastle explosions, namely the one on the 11th November 1986 in Newcastle Court and the one around '96, also 11th November '96, sorry, at the Game Centre in Newcastle?

MR TSHIKA: That is correct.

MR DEHAL: In addition to those you also apply for amnesty for the three Durban incidents and you detail them there but of course we're not dealing with those today?

MR TSHIKA: That is correct.

MR DEHAL: You say that you were arrested and tried at the Pietermaritzburg Supreme Court in 1987 for the above acts, that Judge Broome was the presiding judge who convicted and sentenced you to 15 years of imprisonment, correct?

MR TSHIKA: That is correct.

MR DEHAL: The indictment contained in the bundle is an indictment that dealt with your trial on those days. You recall that indictment, you confirm that that is the indictment that you faced?

MR TSHIKA: That is correct.

MR DEHAL: Of course some of those counts referred solely against you and some of those counts solely against accused number three in that indictment?

MR TSHIKA: That is correct.

MR DEHAL: Then you deal with the general background, you say that you joined the ANC early in 1985 and you were a member of the Congress of South African Students known as COSAS in Lamontville?

MR TSHIKA: That is correct.

MR DEHAL: You took an early interest in politics and became increasingly unhappy with the prevailing conditions in the country in the 1980s?

MR TSHIKA: That is correct.

MR DEHAL: And then around 1985 you received training in South Africa, that's within the borders of South Africa, this course of training dealt with the handling of limpet mines and detonators?

MR TSHIKA: That is correct.

MR DEHAL: A gentleman, referred to as Belgium, was then your commander?

MR TSHIKA: That is correct.

CHAIRPERSON: Are you aware of his real name?

MR TSHIKA: I do not know his real name because we used the code names.

MR DEHAL: Do you know whether this Belgium is still alive or is he late?

MR TSHIKA: I do not have knowledge thereof.

MR DEHAL: But in Durban in the greater Durban area the general command was Mr Sishle Mbongo, correct?

MR TSHIKA: That is correct.

MR DEHAL: And Mr Sishle Mbongo was the upper commander of all ANC structures in Durban, beneath him was Belgium, Belgium gave instructions to Xondo and Xondo gave instructions to you and Belgium on occasions gave instructions to you?

MR TSHIKA: That is correct.

MR DEHAL: So the instructions that you really received for these operations in Durban were from Xondo and Belgium but this is just a brief statement you're making, you want to deal with it more fully when those operations are dealt with in your subsequent amnesty application, correct?

MR TSHIKA: That is correct.

MR DEHAL: You say that about this time when you dealt with Belgium, Sishle etc, you were an ordinary MK member. To the best of your knowledge Sishle gave instructions to carry out these attacks in Durban?

MR TSHIKA: That is correct.

MR DEHAL: I want you to then skip the subsequent pages - sorry, paragraphs 6, 7, 8, 9 and 10 because you don't want to deal with those now, that deals with other operations which we are not dealing with today. At the middle of paragraph 10 in page 2 you start off by saying -

This is the Xondo we've just referred to, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: You say that you had learnt that Security Force members were wanting to arrest you as well. As a result you immediately left the country for Swaziland, your eventual destination was Angola so as to undergo further MK training there?

MR TSHIKA: That is correct.

MR DEHAL: When you arrived in Angola you received further machinery training, you also went to East Germany and received further training there as an MK operative?

MR TSHIKA: That is correct.

MR DEHAL: After this training you returned again to Angola and then went - made your way to Swaziland. Whilst in Swaziland you met with Ralph and Charles Ndaba, two comrades who were also MK members?

MR TSHIKA: That is correct.

MR DEHAL: These two members that we've just referred to namely Ralph and Charles Ndaba then advised you the position in Newcastle and of Bafana Ndaba's death. They advised you that they had chosen you to replace Bafana in the mission and you accepted this position?

MR TSHIKA: That is correct.

MR DEHAL: You then met with the first applicant and arrangements were made for Msibi, the first applicant, to fetch you from Lothair?

MR TSHIKA: That is correct.

MR DEHAL: The first applicant, Msibi, met you at Lothair subsequently and you then proceeded to Newcastle?

MR TSHIKA: That is correct.

MR DEHAL: This is Newcastle in the northern Natal area where these operations, these two operations we're dealing today were carried out, correct?

MR TSHIKA: That is correct.

MR DEHAL: At Newcastle, first applicant Msibi and you made arrangements for you to visit him on a weekly basis to obtain briefings. It was your task to train and recruit new cell members, you educated the new cell members generally in politics and in the use of explosives and detonators. You also imparted the political ideology of the ANC to them, correct?

MR TSHIKA: That is correct.

MR DEHAL: You recall Msibi, the first applicant having testified to the effect that he was not visited by other cell members apart from you, this for logistical and security reasons so that his identity would not be exposed to any low ranking cell members in the unlikely event of them being arrested hence securing the commander, was that correct?

MR TSHIKA: That is correct.

MR DEHAL: You continue to say that Msibi always discussed the various targets that he had chosen with you and after lengthy discussions Msibi would then inform the command structure in Swaziland of the proposed targets. After his briefings in Swaziland he advised you of the command structures decision and you carried them out to the cell members?

MR TSHIKA: That is correct.

MR DEHAL: In view of the fact that Msibi, the first applicant, was not openly available to the cell members, these cell members had rather viewed you as being their leader for they did not know about Msibi's involvement, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: You then say that around or about August 1986, Msibi, the first applicant advised you that Swaziland command structures, that's the seniors outside the country, the ANC, had approved that the oSizweni Police Station attack, you were aware that he had chosen this as a target so that you could obtain the firearms that were stored at this police station, correct?

MR TSHIKA: That is correct.

MR DEHAL: You say you viewed the police generally as being government tools in carrying out the apartheid policy, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: Now at this stage may I just pause and ask you, you recall some of the excerpts we read from the Security Force hearings, the first day hearings where Mr Tim Modise and various governmental officials gave evidence about policemen as targets, even some good policemen, despite being regarded as the forefront of the apartheid regime and therefore targeted, that was the general view of the ANC and you understood that as being the guidelines, correct?

MR TSHIKA: That is correct.

MR DEHAL: And secondly, do you embrace, do you endorse as correct that the first and second submissions of the ANC contained in these bundles inasmuch as we have not gone through them to save time and to prevent burdening the record, do you confirm the ANC stance in regard to police stations, policemen, governmental buildings and places like railway stations being legitimate targets. Do you embrace their view thereon and do you agree that your activities of these two targets fell within the purview of those guidelines?

MR TSHIKA: Yes I do.

MR DEHAL: Thank you. You then proceed to say that it was agreed between the first applicant and yourself that you will carry out this operation as other cell units did not have the requisite experience to handle an attack of this nature and that after careful reconnaissance surveillance, you had agreed to attack the police station at night because there would be then only two policemen on night duty? Agreed?

MR TSHIKA: That is correct.

MR DEHAL: There were just three of you that went across, Msibi the first applicant, yourself and one Tembinkosi was part of the ANC cells, MK cells at the time. You took Tembinkosi to remain outside as a lookout and Msibi and you would attack the police station on the inside and obtain the weapons. On your arrival at the station, first applicant Msibi then threw the grenade into the police station, the police retaliated and started shooting. Shots were then exchanged and you retreated into the bushes, correct?

MR TSHIKA: That is correct.

MR DEHAL: You say the following day you went to the police station in order to evaluate the situation and get information from the people around. You were informed that the police did not know their attackers, is that correct?

MR TSHIKA: That is correct.

MR DEHAL: Is it also correct that you did learn that some policemen were injured?

MR TSHIKA: That is correct.

MR DEHAL: Can I take you to paragraph 17, for 16 is to be ignored, you say in November 1986 Msibi, the first applicant, instructed that you and him and yourselves had to attack and place a bomb at the Glencoe railway station. Tembinkosi duly did so on a Saturday so as to minimise the number of casualties, is that correct?

MR TSHIKA: That is correct.

ADV BOSMAN: May I just interpose here Mr Chairperson? ...(indistinct)

INTERPRETER: The speaker's mike is not on.

ADV BOSMAN: The "we" in paragraph 17 -

Can we just get clarity on who the "we" are, it's not quite clear to me.

MR DEHAL: Sorry, I think we altered the subsequent "we" to Tembinkosi, perhaps what I should have done is altered the first "we". May I just explain that Msibi the commander had given instructions to the second applicant who is now testifying, to see to it that this operation was carried out and he then engaged Tembinkosi within his cell.

ADV BOSMAN: Thank you.

MR DEHAL: Is that correct?

MR TSHIKA: That is correct.

MR DEHAL: You then say that you were arrested in December 1986 in Ndadelene, is that Ndadelene?

MR TSHIKA: Madadene.

MR DEHAL: Madadene, thank you. Newcastle, by the Newcastle security branch. You were constantly interrogated and tortured by the security branch. You were detained for a further three months and you appeared at the Newcastle magistrate's court in June 1987. You were only aware of the injuries that was caused by your actions and activities during your trial. You were convicted and sentenced to 15 years imprisonment in Pietermaritzburg and later transferred to Robben Island and released four years later, correct?

MR TSHIKA: That is correct.

CHAIRPERSON: Did he receive indemnity or on what basis was he released?

MR DEHAL: He received indemnity, yes.

You also say then finally that you maintained that all the incidents were carried out with the intention to destabilise the apartheid government, you wanted to free the Black comrades and fought for your own belief. You are deeply sorry about injuries that was caused because of your actions and beliefs, your main objective at all times was not to injure the innocent people but to fight for freedom and you apologised to those that have suffered, correct?

MR TSHIKA: That is correct.

MR DEHAL: You've heard about this gentleman who claims that he was shot at during the oSizweni Police Station operation. Do you know anything about him?

MR TSHIKA: No I do not.

MR DEHAL: Now if it is true that he was shot in this operation can you explain how it is possible that it might have happened that he was so shot at, his vehicle so damaged and him possibly so injured pursuant to, arising from this operation?

MR TSHIKA: Please repeat that question?

MR DEHAL: Sorry, if it is true that this man Mr Labena Mazibuko was indeed or did indeed suffer as he says he did arising from this oSizweni Police Station operation, can you explain how it may be possible that he came to be so injured? Sorry, I may be rephrasing that too broadly, you recall that the applicant Msibi in answer to my learned colleague the Evidence Leader's question said that he did not know about Mazibuko, that Mazibuko was not there to the best of your knowledge and that if Mazibuko was shot at it must have been in the crossfire, what do you say to that?

MR TSHIKA: I would confirm what Mr Msibi says.

MR DEHAL: Sorry, thank you. Did you see Mr Mazibuko on the day on which this operation was carried out, that's the oSizweni Police Station operation of the 10th October 1986. You were there, did you see him there? Did you see his vehicle there?

MR TSHIKA: No I did not, I did not see his vehicle.

MR DEHAL: Did you see any vehicle?

MR TSHIKA: I did see a police van parked outside the police station.

MR DEHAL: Is that the only vehicle you saw?

MR TSHIKA: That is correct.

MR DEHAL: And do you confirm the details relating to the arms that you carried, that your commander Mr Msibi, the first applicant, carried, the objectives for which you pursued this operation as testified to by Mr Msibi?

MR TSHIKA: Yes I do.

MR DEHAL: The Evidence Leader has asked Mr Msibi some questions about whether it may be - sorry, the Evidence Leader had asked Mr Msibi questions relating to the indictment and that on certain pages of the indictment there is reference to this Mazibuko. You were charged in this trial, this is an indictment that you faced, you recall the reference to Mazibuko, is that the first time you'd ever heard about this Mazibuko?

MR TSHIKA: I heard about him for the first time in court.

MR DEHAL: And is it correct that you had not testified in your trial and you were convicted purely on the state's witnesses testimony?

MR TSHIKA: That is correct.

MR DEHAL: If it is ever suggested to you that you had alternatively that you and Tembinkosi had, alternatively Tembinkosi alone had shot Mazibuko, would you deny that?

MR TSHIKA: I wouldn't deny it because I do not recall Tembinkosi firing at anyone when we fled from the police station.

CHAIRPERSON: Mr Dehal, we'll accept that but you're at risk now. If for instance there's a civil claim you're not admitting to admitting any offence so we can't give you amnesty for that, for the shooting at the car, you're aware of that?

MR TSHIKA: Yes.

CHAIRPERSON: But if it was included and foreseen then we can give you amnesty. If not and if the offence is denied we can't give you amnesty.

MR DEHAL: Yes, I was just going to embark on that second aspect now on the next question on the foreseeability aspect.

CHAIRPERSON: Yes.

MR DEHAL: Thank you. Mr Tshika, you've heard Mr Msibi say that in response to Mrs Bosman's question about the possibility - sorry, about the fact that when you got to the police station you must have expected that policemen could possibly die in this operation. You recall that, you agree with that, do you?

MR TSHIKA: Yes I do.

MR DEHAL: Do you recall also Mr Msibi's testifying that it may be possible, this is in response to Judge de Jager's question that Mr Mazibuko, this person was caught in the crossfire allegedly may have been caught in the crossfire as a result of a bullet ricocheting and catching on to him. A loose stray bullet or a bullet simply ricocheting onto him.

CHAIRPERSON: I didn't put it that it ricocheted, I said it may be that the car could have been struck by a bullet, a stray bullet or a bullet in a sort of crossfire but not one ricocheting that would involve hitting something and ricocheting to another, I've never put that.

MR DEHAL: I see but at the level that Judge de Jager is now correct, would you agree with that?

MR TSHIKA: Yes I would.

MR DEHAL: Now to that extent if at all it is true that Mr Mazibuko was involved - sorry, was injured in this operation you apologised to him for the injuries caused to him and you apply for amnesty for that?

MR TSHIKA: That is correct.

ADV BOSMAN: And then what about the possible malicious injury to property, Mr Dehal?

MR DEHAL: Sorry, the problem we have is that we did not go through Mr Mazibuko's Afrikaans statement and I said to the Evidence Leader that neither of my two clients nor I am so familiar with the Afrikaans so we heard for the first time today that his vehicle had gone missing.

CHAIRPERSON: When did you receive the bundle?

MR DEHAL: Fairly lately last week, I think on Thursday last week, on Friday last week.

CHAIRPERSON: And you couldn't prepare on the basis that you could get an interpreter to help you?

MR DEHAL: Certainly not in those last few days, yes. We'd got them I think on Thursday and we began consulting on Thursday with the one applicant on Friday, with the other applicant we were told that this witness was not going to be called so we didn't think it even important. We were even told today, this morning that he's not going to be called.

CHAIRPERSON: Well a victim can always on his own accord give evidence and we can't deny any victims a right to give evidence. The purpose of the whole Act is to accommodate victims. They are the persons losing rights, they're not gaining anything by amnesty so they're entitled to give evidence for whatever and we're obliged to give them the opportunity to give evidence if they want to.

MR DEHAL: I have no difficulty with that Chair, my only difficulty is that we did not pay much weight to this page 64 onwards given it's Afrikaans content, especially given the fact that we were told he would not be called.

CHAIRPERSON: Well it was in the charge sheet too? He was charged with this.

MR DEHAL: Yes but ...(intervention)

CHAIRPERSON: So he was aware of it.

MR DEHAL: No, no, no, I think we're at cross purposes here. Yes, he was aware of Mazibuko, he said so, he said - the present applicant says he heard of him for the first time at the trial. What we are dealing with now if Ms Bosman's question about the injury to property, namely the car of Mr Mazibuko. Now that's not the ...(indistinct) in the indictment to the best of my knowledge and it's an aspect ...(intervention)

CHAIRPERSON: If the car was shot wasn't it damaged and wouldn't that be injury to property, malicious injury to property?

MR DEHAL: Yes.

CHAIRPERSON: So we're arguing really about something that's been known since 1996, it's about 14 years.

MR DEHAL: And I think just one question would solve that problem. Mr Tshika, to the extent that you concede, confirm that Mr Mazibuko may well have been caught in the crossfire and injured thereby and to that extent you seek amnesty therefore and you're apologetic to him, likewise on the same basis if his vehicle was damaged in the crossfire do you apologise for that and seek amnesty therefore?

MR TSHIKA: That is correct.

MR DEHAL: Thank you. I take you to your application for amnesty in the bundle itself. I just wanted to deal with one aspect. Do you see your bundle pages 12 onwards? On page 13 at the bottom you start with the last word or the last two words you say "I do" and then you go onto the next page, you say:

Do you recall saying that?

MR TSHIKA: Yes I do.

MR DEHAL: Now this amnesty that you received before your release from Robben Island, was that the general political amnesty that all Robben Island prisoners received pursuant to the ex-State President Mandela's release when all of you were given amnesty and allowed to be released from Robben Island?

MR TSHIKA: That is correct.

CHAIRPERSON: I think you should pay attention to the question whether there's still any offence? Wasn't the offence sort of expunged by the indemnity and wouldn't -I think it's Section 43 of the Act, say that that should be acknowledged and there's no offence any more?

MR DEHAL: Mr Chairperson, that is my understanding but the applicant had raised this with me and I couldn't find any parallel provisions apart from Section 43 to seek reliance upon but we made some investigations and found that the so-called SAP69 still referred to previous convictions and to that extent that it was not expunged, we considered it prudent to pursue this application.

CHAIRPERSON: Yes but we could only give amnesty for an offence or a delict still existing?

MR DEHAL: Yes, I'm not too sure whether ...(intervention)

CHAIRPERSON: And the inscription on a SAP69 isn't an offence or a delict that amnesty may result if once amnesty is granted that it's expunged?

MR DEHAL: Expunged, yes. My problem is I'm not really au fait with what the ambit of those initial amnesty provisions were and whether they do indeed obliterate so-called activities, acts committed at the time to the extent that it does not then the amnesty is pursued with. Thank you.

Mr Chairperson, that is the evidence of this applicant.

CROSS-EXAMINATION BY MS MTANGA: Yes Chairperson, I do have, thank you. Mr Tshika, at the time you left the police station were the three of you all together at the time you retreated from the operation?

MR TSHIKA: That is so.

MS MTANGA: You've heard the evidence of Mr Msibi when he stated that at some point during the operation Tembinkosi disappeared and then he reappeared later. Do you recall that?

MR TSHIKA: Yes I do recall that.

MS MTANGA: When did he reappear?

MR TSHIKA: When the exchange of fire began we were not all standing at one place, we were at different positions. When we retreated he as the commander had the responsibility to ensure that we were all there, accounted for. We then retreated together but fled in separate directions and later re-converged at a certain spot.

MS MTANGA: At the time you were retreating was there a point when you and Mr Msibi were actually walking together away from the police station without Tembinkosi?

MR TSHIKA: If I recall correctly yes there was and there was also a time when I was just alone. We were not fleeing in formation.

MS MTANGA: And what I also want to know is as you were retreating from the police station where were your firearms that you were carrying. I believe the evidence of Mr Msibi was that you had AK47s and some magazines. Where were those weapons?

MR TSHIKA: I had mine in my possession.

MS MTANGA: And did the two other persons have firearms, do you remember?

MR TSHIKA: The weapons were not left on the scene, they had their firearms as well.

MS MTANGA: I wish to put it to you, Mr Tshika, that Mr Mazibuko is going to testify that the point of attack, the point where he was attacked by two people, two kilometres away from the police station and the two people who were attacking and were carrying firearms similar in appearance, he cannot describe what kind of firearms they were and they tried to stop his vehicle, fired a shot at his vehicle but he didn't stop, he ran away. Do you recall this incident?

MR TSHIKA: No, that is difficult to recall because when we went to the police station we had long overcoats on to hide our firearms and when we retreated from the police station we still had those same long overcoats under which we had hidden our firearms. As we were fleeing we might have encountered police along the way so we had ensured that they did not realise that we were the attackers.

MS MTANGA: What you are saying now actually ties up with what Mr Mazibuko is saying, he alleges that the two people who fired shots at him were carrying firearms that were hung on their shoulders across their bodies and these people tried to stop him, they fired shots at him and he ran away. What do you say to this?

MR TSHIKA: As I've mentioned before I do not know anything about that.

MS MTANGA: I further wish to put it to you that Mr Mazibuko will take a stand and give evidence to this effect and that will be the sense of his evidence that this took place two kilometres away from the police station and that he has heard the evidence of Mr Msibi saying that if this did occur it should be regarded as a ...(indistinct) that occurred as a result of the crossfire and the position that Mr Mazibuko is going to take is that an incident that took place two kilometres away from the police station cannot be regarded as resulting from that crossfire. What do you say to that?

MR TSHIKA: Please repeat that question?

MS MTANGA: Mr Mazibuko will testify that if this incident took place two kilometres away from the police station it cannot be regarded as an incident that was consequent to crossfire that took place at the police station and therefore it should be regarded as a separate incident where he was just fired at by two people carrying firearms hung around their bodies?

MR TSHIKA: I do not know about that.

MS MTANGA: You heard the questions that I put to your co-applicant, Mr Msibi, that after this incident, the vehicle that's the subject matter of this application now, the vehicle driven by Mr Mazibuko disappeared and this vehicle was to be used as evidence in your trial against you and your co-accused. Do you know anything about the disappearance of that vehicle?

MR TSHIKA: No, I do not know anything about it.

MS MTANGA: This is the end of my questioning, Chairperson. Thank you.

CHAIRPERSON: At this stage could I enquire from the staff and the representatives, should we continue for another say twenty minutes or would you like an adjournment now or could we finish perhaps with the whole application?

MR DEHAL: Mr Chairperson, insofar as we are concerned, if the evidence of Mr Mazibuko is going to be very minimal and not too long, say twenty minutes, then I don't mind proceeding through the lunch break and then we can adjourn for the day but if it's going to be unduly lengthy then surely we should do that later.

CHAIRPERSON: I can't imagine it being lengthy because of the substance he is giving evidence about it seems to be very short?

MR DEHAL: I agree.

CHAIRPERSON: What about the rest of the staff? The interpreters? Would you prefer us going on or would you prefer an adjournment now? Yes, if they're in agreement we'll carry on, if not kindly advise us?

INTERPRETER: We do not mind carrying on until we've completed the application.

CHAIRPERSON: Thank you. Mr Dehal, any re-examination?

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

CHAIRPERSON: In the Glencoe railway attack were you only sort of carrying a message from Mr Msibi to Tembinkosi or did you partake in the attack itself?

MR TSHIKA: I only passed on the message to Tembinkosi, I did not accompany him when he went to place the explosive.

CHAIRPERSON: So you weren't present when the explosion took place?

MR TSHIKA: No I was not.

CHAIRPERSON: Thank you.

ADV BOSMAN: I have no other questions, Chairperson.

CHAIRPERSON: Right, any further witnesses?

MR DEHAL: Mr Chairperson, that concludes the evidence insofar as these two counts alone are concerned of both these applicants, thank you.

CHAIRPERSON: Thank you. Are you calling Mr Mazibuko?

MS MTANGA: Yes Chairperson, as the Committee pleases I would like to call Mr Mazibuko.

CHAIRPERSON: Would he give evidence in Zulu?

LABENA ISMAIL MAZIBUKO: (sworn states)

EXAMINATION BY MS MTANGA: Thank you Chairperson. Mr Mazibuko, would you state your full names for the record?

MR MAZIBUKO: Labena Ismail Mazibuko.

MS MTANGA: Mr Mazibuko, are you employed?

MR MAZIBUKO: No, I'm unemployed.

MS MTANGA: At the time of this incident were you employed?

MR MAZIBUKO: I had just recently been retrenched when this incident occurred. I had just completed repairs to my vehicle because I was aware I was going to be unemployed a short while. At the time I had not even completed payments for the repairs to my vehicle.

MS MTANGA: Can you please tell the Committee what happened to you on that day when you and your vehicle was shot at?

MR MAZIBUKO: My home is close to the police station and from the police station my home is in a northerly direction. I left home with my brother-in-law, Mishak Radebe, and we were proceeding to his house. The route towards his house passes by the police station. It was late, after dusk. We went to his place and we spent some time there. On our way back we were not aware that the police station had been attacked at that time. There was a site where ash was dumped on our way back. As I came across and I was driving along a route outside the township, as I came upon there I saw two people.

MS MTANGA: Mr Mazibuko, can you try and - when you give evidence, can you try and give distances, estimate the distances that you are talking about? You said you left your home going to Mr Radebe’s house? How far is this house from the police station?

MR MAZIBUKO: The house is more than two kilometres away because I was shot at at a distance of about two kilometres from the police station. The house could be half kilometre away from the spot at which we were shot at.

MS MTANGA: So is it your evidence that from your house you go past the police station and then you get to the point where you were attacked and then you get to Mr Radebe’s house?

MR MAZIBUKO: Yes that is so.

MS MTANGA: Okay carry on, you can carry on with your evidence?

MR MAZIBUKO: As I approached I saw ...(intervention)

CHAIRPERSON: Could you just wait a minute so that they could interpret to us what you've said?

MR MAZIBUKO: As I saw these two person they were trying to stop me and I was surprised because there were gold lines running across their bodies and I could see that they were carrying something that looked like bags so I slowed down and the vehicle proceeded slowly.

CHAIRPERSON: Could I have clarity about this, you say they had gold lines across their bodies. Would that be the same that sometimes you'll find during a road block, people carrying a sort of - not that kind of thing that would illuminate at night and warn you there's a roadblock for instance?

MR MAZIBUKO: No, I was surprised because I do know that which is used by the police but that looked like horizontal lines, that is why I did not stop immediately, I just slowed down so the car proceeded slowly. They must have thought I was stopping but when they realised that I did not stop but was passing, a shot was fired and it went through just above the rear wheel. In fact it went up through the canopy straight towards me. I just saw a ball of fire right in front of my face. So the bullet whizzed past me. I just saw a ball of fire and that was the bullet. We then proceeded, went past the police station. On my arrival at home I was eager to relate the story that somebody has shot at us. When we arrived at home all the lights had been turned out. It was dark. When we enquired what was going on we were informed that there was an exchange of fire at the police station and we were surprised because we had also been shot at. At that time we were using the phones, the type of phones that would go through the post office, we would request a number, so we had to request from the switchboard whether it was possible for us to use the road again because some people had shot at us on that road. They wanted to know who had shot at us and what had happened so we went, took the van there and the police questioned me greatly and searched my body whether I had been shot at or not. One of them even said that I was a lucky man because the bullet was right at the foot of the van and he took it from there and showed it to me. So he asked me to go point out the spot where I had been shot at which I did and they took photographs of that place and they also took photographs of the spot on the vehicle where it had been shot. Thereafter my vehicle was stolen. To this day I do not have a vehicle, I used this car for my business. I thought the applicants were going to admit to this, but they have denied ever having done it so I do not know how one is supposed to forgive them because they did shoot at me.

CHAIRPERSON: Right, Mr Mazibuko, was your car stolen after the arrest of the applicant while he was awaiting trial?

MR MAZIBUKO: I would say it was after that because after the incident it was widely reported in the media. Before the matter came to trial the car was stolen.

CHAIRPERSON: No, I understand, yes. You see if he was in jail then, in all fairness he couldn't be the thief? It must have been somebody else?

MR MAZIBUKO: I cannot say whether he was already arrested at that time because this happened shortly after the incident. I cannot say whether he had already been arrested or not but I suspected that my vehicle might have been stolen for that reason. I thought perhaps that they had stolen it because it could have been used as evidence.

CHAIRPERSON: No, I understand that too that you suspected that. You couldn't recognise any of the people shooting at you?

MR MAZIBUKO: No, I did not recognise them.

CHAIRPERSON: Even today you may have suspicion but as you sit there can you be sure it's one of the people sitting over there that shot at you?

MR MAZIBUKO: Yes it is them because the police said that the people who had shot at me had been caught and they were the people who were mentioned in court, that they were Tshika and Msibi.

CHAIRPERSON: Yes I think perhaps the police also suspected it to be them but if really we sit down we can't say that they're the guilty persons. Wouldn't we be doing an injustice to them if on the evidence presented here we sort of accept that they are the guilty persons? We may suspect that and it may be so but on the evidence before us and on the proof the incident wasn't - couldn't have been crossfire because it's two kilometres away and then it wouldn't fall within the ambit of the offence they're seeking amnesty for and as they deny shooting at somebody two kilometres away, that wouldn't be part of the application and if you later receive evidence about people involved there it may be, we'll consider it but it may be that even you could be free to proceed with action against them? I don't know whether you're following but that's my personal view at this stage and my colleagues could express their opinion too but if there's anything else you want to add please go ahead and tell us about it?

MR MAZIBUKO: I do understand what the judge is saying but they were convicted of shooting at my vehicle. What I would like to know is how could they be convicted of a crime that they did not commit? How can Mr Tshika be convicted of a crime that he did not commit because he was convicted in court for shooting at me.

ADV BOSMAN: Mr Mazibuko, was the bullet that was found in your car, was that before the trial court?

MR MAZIBUKO: Please repeat that question?

ADV BOSMAN: Was the bullet that was found in your car, which struck your car, was that before the trial court? Do you know?

MR MAZIBUKO: Yes it was evidence in court because it was mentioned that the bullets or the cartridges that were found at that police station were the same as the bullet that was found in my car and they had the cartridges at the time when I was approached, that is why I insist that it was them.

MS MTANGA: Mr Mazibuko, how long after this attack on your car was your car stolen, can you remember?

MR MAZIBUKO: I do not recall, that was about two months or one and half months that the incident, I'm just not sure of the exact time.

CHAIRPERSON: I see in the court papers that they say the bullet matched the firearm carried by Tembinkosi and they say it's an allegation here, it's not the evidence itself. On the date at near the place mentioned near the police station accused number three, that was Mr Tembinkosi, fired a shot with an AK47 machine rifle but the vehicle of Mr Labena Mazibuko, the bullet struck the vehicle behind the right hand door penetrating the vehicle narrowly missing the said Mr Mazibuko. So it seemed not that the present application fired the shot but it was fired by Mr Tembinkosi and you've heard the evidence that while the shooting took place, Mr Tembinkosi sort of had a shock and he ran away. Now that's the evidence we're having at present but we're talking cognisance of what you're saying and if there's any further evidence you want to add to it we'll also consider that in dealing with the application and if we're not satisfied that this forms part of the application and that the applicants are accepting responsibility therefore, then of course we can't grant amnesty for that. But that would affect a part of their application and not the whole application. There we'll have to consider other elements as well.

Thank you and if there's anything further you want to add please do so.

MR MAZIBUKO: I can state that the people who shot at me were two individuals, it was not just one person but we have only referred to one person here. It was obvious that I was shot by two persons who were together. Thank you.

CHAIRPERSON: Thank you. Mr Dehal?

CROSS-EXAMINATION BY MR DEHAL: Thank you. Mr Mazibuko, look at page 65 of the bundle. 64 and 65. That is an Afrikaans statement, or a statement in the Afrikaans language being your statement and signed by you on page 65, do you agree with me?

MR MAZIBUKO: Yes.

MR DEHAL: Sorry, I don't hear the interpretation?

CHAIRPERSON: He said yes.

MR DEHAL: Oh sorry, thank you. Do you speak Afrikaans, do you read Afrikaans?

MR MAZIBUKO: Yes I do understand Afrikaans.

MR DEHAL: Can you read paragraph 7 on page 65 into the record? Read it loud in Afrikaans.

CHAIRPERSON: Oral interpreted - it's alright.

MR DEHAL: No, no, read it into the record, what does it say?

MR MAZIBUKO: "I do not know the persons who shot at me and I do not believe that I will recognise them."

MR DEHAL: Now you do understand that paragraph well, don't you?

MR MAZIBUKO: Yes I do.

MR DEHAL: And you stand by that?

MR MAZIBUKO: As I mentioned before I did not see who they were, I still insist that I did not see them.

MR DEHAL: You still insist as you sit here today that to the extent that you did not see them you cannot again identify them because that's what the paragraph says?

MR MAZIBUKO: That is correct.

MR DEHAL: So in answer to Judge de Jager's question as you sit there today you do not know really who shot at you, even these two applicants, the first and the second, you cannot say they shot at you because you didn't see them. You agree with me? That's really what you said in paragraph 7. You must agree with that?

MR MAZIBUKO: Yes that is correct. As they also mentioned they had dressed in such a way that they would not be recognisable but it was their cartridges that indicated who they were. The cartridges were evidence that pointed to the fact that I had also been shot by them.

MR DEHAL: Now before Mr Msibi gave evidence this morning the Evidence Leader had consulted with you at the back, do you remember? That's before she cross-examined Mr Msibi? The lady seated next to you is the Evidence Leader, she had talked to you before she cross-examined Mr Msibi, do you remember that?

MR MAZIBUKO: That is correct.

MR DEHAL: In consulting with you, you told her what had happened, you told her how it happened, do you remember?

MR MAZIBUKO: Yes I did.

MR DEHAL: You see, what worries me is that when she, the Evidence Leader cross-examined Mr Msibi, she said there was one person that had shot at you, not two persons and she referred to Tembinkosi. Now that accords with the indictment, Tembinkosi is the third accused in the indictment. Would you say those were your instructions to her? Those must have been your instructions to her otherwise she would not have put it to Mr Msibi, correct?

MR MAZIBUKO: I told her that there were two people who shot at me. Even in court I did testify to that effect. I did not see who they were, I could not recognise them. Even now I cannot say I recognise them because they were also dressed in a fashion that made recognising them impossible but I only say it is them because of the cartridges that were picked up from the police station as well as the bullets that was found in my car. Those two managed that is why I am convinced that it was them who shot at me. That is why I said I could not recognise their faces.

MR DEHAL: Yes now - sorry, the difficulty I have now is this ...(intervention)

CHAIRPERSON: Mr Dehal, shouldn't we analyse what we're busy with? If you're applying for amnesty for the shooting at the car then you should admit that it could be a bullet coming from your people. If that's not the case then you didn't commit an offence and you can't grant you amnesty for that so then it would fall outside the ambit of your application. If you would admit, your clients would admit that this bullet possibly could have been coming from you then of course there's another scenario and we could give you amnesty but on the evidence now that this shooting occurred two kilometres from the police station, could this be considered as part of your applicant's application, your version that even if it was a stray bullet it must have been I suppose in the vicinity of the - so on the evidence before us would you submit that even if we accept his evidence now that it occurred two kilometres from - it would still fall within a possible - possibly in the ambit of your application, being a stray bullet fired at the police station?

MR DEHAL: I see those difficulties as well but may I just say that the reason I'm cross-examining this witness on the lines I am doing is this, if one reads the indictment as I thought you did, Chair, together with his statement and together with the general background of the documents it seems that the Attorney-General, Mr Mike Imber had understood clearly from his statement, this witnesses statement and possibly from his brother-in-law's statement which we do not have, that the vicinity of the shooting must have been in the immediate vicinity of the police station otherwise paragraph 40 and 39 would not have read the way it did on page ...(intervention)

CHAIRPERSON: No, that may be what Mike Imber thought at that stage. On the evidence before us now there's no way we -I mean we - he's very firm on it, that it occurred about two kilometres away.

MR DEHAL: One of two things then can happen. Either we accept his evidence at that level and then our applications for amnesty do not stand because it only stands insofar as it is approximal consequential cause arising from our ...(indistinct). Now we've not come here today saying this is an event that occurred as a result of our activity, we're saying given the cross-examination, if indeed you find that it occurred there, we apply for amnesty for that because it was an anticipated consequence but to the extent that it's now distanced away from the scene to a two kilometre spot we said we never did that, none of our men did that and my cross-examination is designed to show that he may well be mistaken because Mr Mike Imber is a very senior man, with the statements before him he would never have misconstrued it as being in the immediate vicinity.

CHAIRPERSON: Right.

MR DEHAL: Thank you. Mr Mazibuko, I want to suggest to you that you may be mistaken about this distance of two kilometres away but before I do, can I just seek some clarity. At the time your car was shot at, was your brother-in-law, Mishak, still in the vehicle with you?

MR MAZIBUKO: Yes.

MR DEHAL: Okay and was he in the front seat of your vehicle?

MR MAZIBUKO: Yes he was with me, it was a bakkie that I was driving.

MR DEHAL: And you were the driver?

MR MAZIBUKO: Yes.

MR DEHAL: Now were you on your way back home or were you still on your way to Mr Mishak's home when you were fired at?

MR MAZIBUKO: We went to his home, he was there to do something and then later we left his home and we were on our way to my home. I do understand that some of you are saying it wasn't them. I saw them, they were approaching towards the eastern direction. They were on foot and I thought they were about to hi-jack me.

MR DEHAL: No sorry, my question is a simple one. You are saying that you were returning from Mishak, your brother-in-law's home, at the time you were fired at. Now the following is also a simple question, did you pass the police station before you were fired at or had you still to arrive at the police station?

MR MAZIBUKO: I was on my way towards the police station.

MR DEHAL: How far away from the police station were you?

MR MAZIBUKO: Like I've already estimated, I said about two kilometres and they came from the houses, we met, they were from a dark place, it was dark where they were from and they came right in front of the car. I got scared, I slowed down.

MR DEHAL: Yes, now we've heard the rest, thank you. Now when you say the bullet hit your vehicle, I just want you to deal with the trajectory of this bullet. You say it hit the back of your vehicle, at the back wheel and how did it move to the front?

MR MAZIBUKO: I don't know how but the car kept on moving and the police called me when I was at home. He said he wanted to check my car and also to check myself if I was not injured and he found that cartridge in that car.

MR DEHAL: Yes but - sorry, earlier in your evidence in chief you said that a bullet had hit the rear of your vehicle if I recall correctly, had gone through the canopy, is it? So that it raises itself. You're pointing with your finger, going up this way to the canopy and then to the front?

MR MAZIBUKO: That's how the hole was, it was at the back and then it came out in the front.

MR DEHAL: So from the back it goes upwards to your canopy, down to the front and then lands near your accelerator pedal, correct?

MR MAZIBUKO: Yes, as I'm sitting here it penetrated through where I'm pointing now. They found it near my feet. I didn't even see it but the police found it there because the police traced the holes until to the accelerator pedals.

MR DEHAL: And which back wheel was it fired at? The right or left?

MR MAZIBUKO: Right because I was facing to that direction, they came on my right hand side and they fired from there.

CHAIRPERSON: We're not really - I don't think it's disputed that there was a bullet hole in the bakkie. Whether it entered and whether it made a curve, the fact is unless you say that you disputing the whole story there was no bullet hole at all? I don't think it would assist us in coming to any conclusion, whether it's the right wheel or the left wheel or the petrol pedal or the brake or wherever it landed up?

MR DEHAL: Chair, can I just say the reason for this is to show at the end on submissions that this witness is an unreliable and unreasonable witness, that his version even on the trajectory is so palpably false that no bullet could reasonably behave that way and therefore his ...(intervention)

CHAIRPERSON: But nobody could follow the trajectory of a bullet?

MR DEHAL: No when it's shot from the front, it wouldn't hit the back wheel.

CHAIRPERSON: No, you can't see a bullet. He is sort of making deductions that it entered and it entered the cab somewhere ...(intervention)

MR DEHAL: That's the point. That's the point.

CHAIRPERSON: Where did it enter the cab, where did it land up in the end? It entered the cab and it landed somewhere in the cab in front?

MR DEHAL: Yes, I agree, that's the point I'm making.

Mr Mazibuko, these people who fired at your vehicle, fired from the front of your vehicle as you looked at them, correct? That was your evidence?

CHAIRPERSON: No, he never said that.

MR MAZIBUKO: No I didn't say it so.

MR DEHAL: So where were they when they fired at you?

MR MAZIBUKO: They were in front when they tried to stop me, I slowed down and they thought I was going to stop but I passed them. As they realised that I was passing that's when they started firing. At that time they were at the back.

MR DEHAL: Okay, tell me, do you know what's two kilometres? Can you show us in this courtroom using the distance from this court to the outside? Or within these courts what's two kilometres?

ADV BOSMAN: ...(inaudible) reasonable, Mr Dehal?

MR MAZIBUKO: I don't quite know this area but if I may refer to oSizweni area because I know oSizweni area because there are boards at oSizweni which tells one three kilometres from wherever you are to oSizweni therefore that's why I know to estimate but this one it's less, it was lesser, that's why I estimated it as two kilometres because of that board that says three kilometres.

MR DEHAL: Sorry, on your evidence there is no possibility at all that you were fired at outside the police station or within it's immediate vicinity, that you do not accept, is that correct?

MR MAZIBUKO: It wasn't in the vicinity, it was not close.

MR DEHAL: Yes, thank you. Now again on your evidence you don't know why accused number three Tembinkosi came to be alone charged for the incident relating to the shooting on you?

MR MAZIBUKO: The reason I said so it is because they've repeated mentioned Tembinkosi alone but according to my evidence the people who shot at me were two, not one that's why I'm saying it wasn't Tembinkosi alone, there were two.

MR DEHAL: And then finally, Mr Mazibuko, you had as a matter of clarity only, you had earlier mentioned that these gentlemen, the two applicants were charged and convicted of this offence relating to you and therefore you say it's them. Now I just want to tell you that accused number - sorry, second applicant, Mr Tshika, has never been charged with a single incident, it was only accused number three, Mr Tembinkosi charged with it so he was not even convicted of it and insofar as the first applicant, Mr Msibi, is concerned he was neither arrested and therefore not even charged nor convicted or sentenced on the incident relating to you. Do you understand?

MR MAZIBUKO: Are you saying Tembinkosi was charged for this case, my case?

MR DEHAL: He was the only - Tembinkosi was the only one charged with the case relating to the shooting on you.

MR MAZIBUKO: That is why then I'm saying it might have been that it was an agreement between Tembinkosi and his colleague that Tembinkosi was going to take the blame alone but I know that they were two and I'm not working today because I was using my car to maintain my family but the people who shot at me were two, not one person.

MR DEHAL: Mr Chairperson, that concludes my cross-examination, I just want to confer with my clients, it seems like one wants to ask me a question. Bear with me?

Mr Mazibuko - sorry, thank you Chair. Mr Mazibuko, don't touch those buttons otherwise you switch mine off, okay? Following upon your incident, the second applicant, Tshika, was arrested by the Security Police and so was Mr Tembinkosi, that's after the incident on the oSizweni Police Station. Did the Security Police visit you and talk to you?

MR MAZIBUKO: When, after the incident? After the incident. I'm asking if they came to my house after the incident?

MR DEHAL: Well, did any Security Police visit you at any stage to discuss this matter with you? Whether they came to your house or you went to their office?

CHAIRPERSON: Or perhaps did any policeman visit you?

I don't know whether you want to know Security Police and whether there was a difference between the police visiting and operating there, whether there was a branch of the Security Police?

MR DEHAL: No Mr Chair, it seems like a policeman did deal with him because there's a J C van Niekerk who was a Lieutenant in the Newcastle Police Station who took his statement ten days afterwards.

CHAIRPERSON: Yes.

MR DEHAL: But we know that the Security Police were very active for the rest of us.

CHAIRPERSON: Yes, thanks.

MR DEHAL: Mr Mazibuko, the security branch, the Security Police, the special branch, do you remember them? Did they see you, did they visit you, did they discuss this matter with you?

MR MAZIBUKO: The last time I had contact with police it was when I was in the police station on the day of the incident. I never went to see them. We only talked about it on that day and I was questioned on that day and after that there were no police who came to my house and I never went to their offices.

MR DEHAL: So did you make your statement on the day of the incident, your statement to the police?

MR MAZIBUKO: Yes they did ask me and I explained to them and they took me to the place where I said the incident occurred.

MR DEHAL: Was your statement written out and signed by you on that day, the day of the incident, at the police station?

MR MAZIBUKO: I will say so because it happened a long time ago, I can't quite remember. I don't remember whether they've written it and they gave me another date to come to the police station. I'm not quite sure, I don't remember very well whether I was told or I was given another day to come to the police station but they never came to my house and I don't remember them calling me, I'll be lying.

MR DEHAL: Did you ever see Tembinkosi in custody, were you ever shown Tembinkosi's face by the Security Police or any other policemen as the person who was arrested relating to the shooting on you?

MR MAZIBUKO: First time I saw them it was in Maritzburg, in Pietermaritzburg Supreme Court and they were still young at the time and I even told the people in court that if the law allowed one to fight with someone who did something to them I will request that from the court to go out and fight with these men because they were still very young at that time.

MR DEHAL: Lastly, did you see this gentleman on my left at court? I'm pointing for the record to Mr Msibi, the first applicant.

MR MAZIBUKO: I'm not sure whether it was him but they were still very young. Maybe it was him but I don't know. Now they are grown up men and it's difficult for me to say yes.

MR DEHAL: Did you see the gentleman on my right, the second applicant, Mr Tshika, at court or do you have the same answer?

MR MAZIBUKO: As I've already mentioned I did say it's going to be difficult for me to recognise them and another thing, even after I've seen them in Pietermaritzburg they were young at that stage, they were very young, I only realised that they were young boys at that time.

MR DEHAL: Mr Chairperson, that concludes the cross-examination. Thank you.

CHAIRPERSON: Thank you. Any re-examination?

MS MTANGA: No re-examination Chairperson, thank you.

CHAIRPERSON: Thank you Mr Mazibuko. Thank you for coming and attending the trial and giving evidence here.

MS MTANGA: No further witnesses to call, Chairperson, thank you.

CHAIRPERSON: Are you ready to address us?

MR DEHAL IN ARGUMENT: Mr Chairperson, I do not intend to be lengthy as the evidence seems to indicate unequivocally that both the applicants have in fact made out a case for amnesty on the two counts that we are dealing with. Insofar was the first applicant is concerned, his role is a peripheral one except for the first count - sorry, for the operation dealing with the police station. To that ...(intervention)

CHAIRPERSON: If you could only assist us, how would you formulate the order you're asking for in both instances? Would you assist us in formulating an order that covers whatever you're asking for?

MR DEHAL: Yes Mr Chairperson, insofar as the first applicant is concerned, the two counts as we deal with would be the counts that would fall within the order namely the attack at oSizweni Police Station on the 10th October, the damage to the police station, the injury to the policemen.

CHAIRPERSON: Okay the attack at oSizweni?

MR DEHAL: At oSizweni Police Station.

CHAIRPERSON: At oSizweni. Malicious damage to property, is that correct?

MR DEHAL: Yes.

CHAIRPERSON: What else?

MR DEHAL: The injuries sustained to the two policemen, Mr Ndwandwe and Mr Msibi.

CHAIRPERSON: Yes?

MR DEHAL: And the second count insofar as ...(intervention)

CHAIRPERSON: Yes, I don't think that's all you're asking for, you're also asking for the illegal possession of explosives and firearms?

MR DEHAL: Correct, but I thought I'd deal with the second count first, that's the explosion at the Glencoe railway station in Dundee for Msibi, the first applicant taking political responsibility therefore, it's not been contested.

CHAIRPERSON: It's not Dundee.

MR DEHAL: Sorry, Glencoe. At Glencoe. I see the record says Dundee, that's incorrect as well and amnesty for all and any firearms, explosives, ammunition and other military weapons like limpet mines etc.

CHAIRPERSON: Yes?

MR DEHAL: That Msibi as commander brought into the country and disseminated into his command structures.

CHAIRPERSON: Alright?

MR DEHAL: Insofar as the second applicant, Mr Tshika, is concerned ...(intervention)

ADV BOSMAN: Before you proceed with that, may I just ask in regard to what you formulated as injuries sustained to two policemen. Would that be attempted murder or would that be assault to do grievous bodily harm, in legal terms how would you formulate that?

MR DEHAL: That would be attempted murder alternatively assault with the intent to do grievous bodily harm on the two persons whose names I gave.

ADV BOSMAN: Thank you, you may proceed.

MR DEHAL: Thank you. And then insofar as Tshika is concerned, Tshika the second applicant, the order would basically read that the first operation being the attack at oSizweni Police Station on the 10th October 1986, the malicious injury to property to the police station and amnesty for the injuries sustained to the two policemen, Ndwandwe and Msibi on the attempted murder alternatively assault and GBH of these two men and the malicious injury to property of the Glencoe railway station. These charges, however, may also be framed as high treason in the old days of the high treason.

CHAIRPERSON: Or acts of terrorism.

MR DEHAL: Or acts of terrorism in the indictment or sabotage as well within the old framework. And then lastly, if you accept my submissions relating to Mazibuko, then the order may well deal with him. The brief submission I have is I am convinced that Mr Mazibuko is either mistaken or lying. He is mistaken surely because Mr Imber, having regard to a detailed indictment which you will recall, Chair, in those days were formulated by senior security policemen, would have been - he is laughing now - senior security policemen would have formulated these dockets having regard to his brother-in-law's statement and indeed Mr Mazibuko's statement and the proximity of the incident relative to the police station would have been obvious. Mr Mike Imber, being the senior man he is, would not have made the mistake on page 100 of the bundle to cite the place as being in the immediate proximity of the police station. In the circumstances I would submit that if you, Chair, would accept and the Honourable Members accept, that Mr Mazibuko is either mistaken ...(intervention)

CHAIRPERSON: Where's his allegations?

MR DEHAL: On page 100.

CHAIRPERSON: Page 100?

MR DEHAL: Of the bundle, yes. Paragraphs 39 and 40 and that's to be read with the other submissions relating to this witness, Mike Imber records earlier.

CHAIRPERSON: On the date at near the place mentioned in paragraph 39, he's not saying in the immediate vicinity of the police station?

MR DEHAL: Yes but I'm pretty sure that near would not have intended to mean two kilometres either because if it had been two kilometres away this would have been cited as a separate count and kept distinguishable from the police incident as indeed Mr Mazibuko wants us to believe. In fact on Mr Mazibuko's own testimony the operation, not the operation because that would have been a criminal act, that that incident would fall immediately in the vicinity of his brother-in-law's house for it was half a kilometre away from that house.

CHAIRPERSON: Isn't it a fact that on the evidence before us the only shooting at a vehicle that we could give a - not a verdict but come to a conclusion about - occurred two kilometres away plus-minus from the police station. You people can't say or your applicants can't say where it occurred because they don't know?

MR DEHAL: Yes.

CHAIRPERSON: He is testifying about a board there indicating a distance, he's been driving a vehicle, he knows about the - he is not blindly estimating anything, I don't think there's any basis on the evidence before us on which we can accept any other distance than a distance about two kilometres away?

MR DEHAL: Well, if that be the approach then, Mr Chair, the attitude would be from the applicants' submission that we do not seek amnesty for that incident because we viewed it as being within the proximity on cross-examination by the Evidence Leader of the police station. In the circumstances there'll be no need in the order to even reject the application for amnesty because we're not seeking it. In the present context of it being two kilometres away, we say we are disassociating ourselves with that, it had nothing to do with us, neither any cell member of ours, nor we two had ever perpetrated that incident. It would be a criminal act and we did not do it. In the circumstances even if there be a civil claim for damaged by Mr Mazibuko, we would defend it on the basis that we had absolutely nothing to do with it, his uncontroverted testimony about his lack of identity of the persons will not help him succeed on any action against us.

Mr Chair, I don't want to submit or make any submissions on the first submissions to the ANC, the second and the first day security hearings, the credibility of the respective evidence and the weight to be attached to them all. I think that goes without saying that indeed the evidence of both the applicants relative to these counts is uncontroverted, unopposed and must be accepted within the purview of the Act itself, Section 20(i)(a) that evidence is clear and should be accepted and they ought to be granted amnesty.

To the extent that Mr Mazibuko has featured at the scene, he has not attacked any of the incidents for which we seek amnesty on any of the legs either as full disclosure or on the basis of proportionality or on any other basis. So to that extent there seems little point for me to make lengthy submissions unless you call upon me to address you on any particular aspect. Thank you.

MS MTANGA IN ARGUMENT: Thank you Chairperson. My position is that I'm assisting the victims who are not here today. In regard to the oSizweni Police Station as indicated on the affidavits of Mr Msibi and Mr Ndwandwe, I'm not opposing this applicant. On the Glencoe railway station there are no victims. And then my position in regard to Mr Mazibuko who is linked to the oSizweni Police Station attack, in as far as his evidence is concerned, this incident took place two kilometres away from the police station and on that basis it is his submission that it cannot be argued by the applicants that his attack was consequent to the crossfire that took place at the police station and therefore it falls outside the ambit of this act.

Further to that it is also his submission, my submission on his behalf, that the fact that the Attorney-General included this attack on the indictment and it could be specifically linked to one of the co-accused of the applicant, Mr Tembinkosi at that time. There must have been some legal basis or some evidence linking it to the three applicants or to this operation at the time. The Committee has heard the evidence of Mr Mazibuko, he clearly said that in court it was said that the bullet that was found inside his car was linked or positively linked to the weapons that were used at the police station at the time. Unfortunately, the Committee is not in possession of those documents or the court documents.

CHAIRPERSON: Would it satisfy both sides if we declined to grant amnesty, if we formulate amnesty on the basis excluding an attack on Mr Mazibuko's car which occurred two kilometres, plus-minus two kilometres away from the police station?

MS MTANGA: Chairperson, that position would be a position that affects the applicants. In as far as Mr Mazibuko is concerned if the applicants are applying for that incident his evidence is that the incident took place two kilometres away from the police station. In the event that the Committee ...(intervention)

CHAIRPERSON: I think that if we would formulate an order granting amnesty in respect of the attack excluding an attack or a shooting on the motorcar, of the car of Mr Mazibuko, which occurred plus minus two kilometres away from the police station.

MR DEHAL: Mr Chairperson, the difficulty I have with that is I would much rather the order not make any mention of Mr Mazibuko because it's not an application for amnesty we seek given the evidence that it is two kilometres away. I would rather we be silent on that and if Mr Mazibuko wishes to take it any further he may well do so otherwise he may well reply upon the wording on the order.

CHAIRPERSON: Yes but on the other hand it wouldn't be clear to a person reading the order if we include everything round that incident. It may be argued then that we indeed granted amnesty for the shooting on the car of Mr Mazibuko.

MR DEHAL: Well, I'd rather have it this way. You must remember Mr Mazibuko does not oppose the application for amnesty, he has not said that. He has not ...(intervention)

CHAIRPERSON: No, he was opposing.

MS MTANGA: Chairperson, he is opposing.

CHAIRPERSON: He is opposing amnesty as far as the shooting on his car is concerned?

MR DEHAL: Yes, but here we are dealing just with two incidents, we've not come here to deal with the shooting on his car, we're dealing with the police station and the railway station incident. On those two we do not have a single witness that opposes those two and those get granted.

CHAIRPERSON: He's not opposing that section but we should then give a clear order so that his rights wouldn't seem to be - in fact you're not asking for that so it wouldn't affect your rights?

MR DEHAL: Correct, then perhaps what I should say is differently, I'd rather have it this way, rather than saying that amnesty is not granted in regard to Mr Mazibuko's incident, perhaps for the Committee to say no finding is made on Mr Mazibuko's incident because if no finding is made then it doesn't show as though application is refused to the applicants because they don't seek amnesty?

CHAIRPERSON: Yes, well we'll consider that. Thank you. Anything further?

MS MTANGA: Nothing further Chairperson. Or just to mention that the basis for Mr Mazibuko to oppose would be that there is lack of full disclosure in regard to his attack. That ends my submission on his behalf.

CHAIRPERSON: Thank you. Thank you for postponing your lunch and I hope to see all interested persons tomorrow morning at 9 o'clock and not at 10 o'clock please.

MR DEHAL: Mr Chair, I'm not here tomorrow as I said earlier.

CHAIRPERSON: So then perhaps we'll be in a position to start at 9?

MR DEHAL: Mr Chairperson, could I just ask in regard to the balance of the matters, could we have them adjourned because they were set down for today sine die to be dealt with by another Committee as we were brief yesterday?

CHAIRPERSON: Yes so it's not a part heard as far as that is concerned. Any Panel could deal with it.

MR DEHAL: Thank you, I'm indebted to you.

CHAIRPERSON: Yes. Or do you specifically request another Panel?

MR DEHAL: No, I have no objections to this Panel, Mr Chair. I'd actually prefer this Panel.