--------------------------------------------------------------------------CHAIRPERSON: This is a commencement of a further hearing of the Amnesty Committee, being held at the ETC Conference Centre in Port Elizabeth. As requested, we will place ourselves on our record for the benefit of those who have to prepare a typed copy.

The Committee consists of myself, Judge Wilson, Judge Miller and Judge Motata. Would the rest of you please put yourselves on record.

MR MBANDAZAYO: Thank you, Chairperson and Honourable Members of the Committee. My name is Lungelo Mbandazayo, I'm representing the applicant in this matter. Thank you.

MR FROST: May it please this Honourable Committee, Mr Chairman. I, Allan Frost, appear for the victim in this matter, Mr Petrus Barnard.

MS THABETHE: Thank you, Mr Chair and Honourable Members of the Committee. My name is Thabile Thabethe, I'm the Evidence Leader for the TRC. Thank you.

CHAIRPERSON: Right, what are we commencing with?

MS THABETHE: Mr Chair, we are commencing with the application of Mr Nxholiseko Mbangi.

MR MBANDAZAYO: Thank you, Chairperson. I was just in the meantime trying to get the frequencies for the languages.

CHAIRPERSON: Are your problems sorted out?

MR MBANDAZAYO: Yes, Chairperson. Chairperson, we are ready. Can Mr Mbangi be sworn in, Chairperson?

NXHOLISEKO MBANGI: (sworn states)

JUDGE MOTATA: Duly sworn in, Chairperson.

EXAMINATION BY MR MBANDAZAYO: Thank you, Chairperson. Chairperson, I will start and lead the applicant from page 4 of his statement which is in the bundle.

Mr Mbangi, is it correct that you are 27 years of age?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Is it correct that you joined the PAC in 1985, in Uitenhage?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Under the Chairperson of Mr Jantjies.

MR MBANGI: Yes.

MR MBANDAZAYO: Is it correct that in 1992 you became involved in this incident because you wanted to assist the organisation in preparation for the first elections?

MR MBANGI: That is correct.

MR MBANDAZAYO: Is it also correct that you were also an APLA cadre?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Can you tell the Committee when you joined APLA?

MR MBANGI: I joined APLA in 1985.

MR MBANDAZAYO: Where did you join APLA in 1985?

MR MBANGI: In Uitenhage.

MR MBANDAZAYO: Is it correct that in 1985, APLA was a banned organisation and its mother body the PAC?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Then can you tell the Committee how did you join the banned organisation?

INTERPRETER: I'm still waiting on the applicant.

JUDGE MILLER: I think if you could just repeat your question, Mr Mbandazayo.

MR MBANDAZAYO: I'll do that, Honourable Member.

Mr Mbangi, can you tell the Committee how did you join a banned organisation in 1985? That is APLA.

MR MBANGI: I joined although it was banned, but I became a member of the APLA.

MR MBANDAZAYO: Were there any members of APLA in 1985, in Uitenhage?

MR MBANGI: The organisation was banned. Though people were members, but the organisation itself was banned.

MR MBANDAZAYO: Okay. Can you tell the Committee about Mzawuabanthu Stokwe. Who was Mzawuabanthu Stokwe?

MR MBANGI: Mzawuabanthu Stokwe was the Commander, but he was coming from the exile after being trained and then I met with him. He is the one who initiated the mission. I used to receive orders from him. I would take orders from him.

MR MBANDAZAYO: Can you tell the Committee about Mxdisi Mbotjwa.

MR MBANGI: Mxdisi Mbotjwa knew nothing about the organisation. They were recruited by myself, but I never involved them in this mission. I did not tell them anything about the mission.

MR MBANDAZAYO: Is it also the case with Luyanda Mdamu?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Now how did you manage to involve people who did not know about a mission, in a mission?

MR MBANGI: It was very difficult for me to tell them because they would change their minds later and they would be used by the white people.

MR MBANDAZAYO: Did your Commander know about this, that these people were not members of APLA, nor members of a task force?

MR MBANGI: Yes, he was fully aware, because I recruited them together with my Commander, and my Commander knew about me, but he knew nothing about them.

MR MBANDAZAYO: Now your Commander was Mzawuabanthu, is it correct according to you?

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Now if your Commander was Mzawuabanthu Stokwe, who was Mandu Befile?

MR MBANGI: He was his High Commander.

MR MBANDAZAYO: Now can you tell the Committee what happened on your arrival at Mr Barnard's farm.

MR MBANGI:

JUDGE MILLER: Sorry, are you saying all three of you shot him? You say "we" pointed a firearm and "we" shot him. What was the position?

MR MBANGI: He drew his firearm while he was already pointed with a firearm by the deceased, therefore the deceased shot him, because he had his firearm out also.

MR MBANDAZAYO: Okay. How were yourselves armed?

MR MBANGI: Pistol and a parabellum.

MR MBANDAZAYO: How many firearms did you have on the day in question?

JUDGE MILLER: Sorry, are you talking about him singular, Mr Mbandazayo, or between the three of them? I think if you can just deal with them individually.

MR MBANDAZAYO: Thank you, Chairperson.

As the Chairperson indicated, Mzawuabanthu, how was Mzawuabanthu armed?

MR MBANGI: Mzawuabanthu had a firearm and the others had knives. I also had a knife. Befile had a firearm also.

MR MBANDAZAYO: Also Befile was present there? The High Commander you are talking about.

MR MBANGI: There are two Befiles, except for the High Commander, Dadasi, the one who was shot, my Commander, his name is also Befile.

MR MBANDAZAYO: So only one person was armed with a firearm.

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: Now am I correct that when you went there to pull off this mission at Mr Barnard's farm, you were aware of the situation in the farm?

MR MBANGI: Yes, because we've been there before to surveil the place.

MR MBANDAZAYO: And you knew that there's a possibility that he was also armed.

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: And despite that, knowing that he's well armed, in any event you decided that only one person should be armed amongst you, with a pistol.

MR MBANGI: Yes, it was right, we thought that he was going to surrender when we arrived there.

MR MBANDAZAYO: Now you have already indicated that Mr Barnard was shot by your Commander, how was your Commander shot? Who shot him?

MR MBANGI: Mr Barnard was driving in a lorry. We were coming on foot next to the kombi. He shot him as he was in the lorry, and he fell and then he died.

MR MBANDAZAYO: Now you have already indicated that only one person was armed, was it only firearm which you used or?

MR MBANGI: Yes.

MR MBANDAZAYO: You were only carrying one firearm.

MR MBANGI: Yes, that is correct.

MR MBANDAZAYO: In your statement you indicated that Mandu Befile gave you two firearms, 9mm pistols.

MR MBANGI: We did not take the other pistol with, we only took one.

MR MBANDAZAYO: Now Mr Mbangi, some of your colleagues who went to the farm together with yourself, made statements in which they deny that what you went there to do had anything to do with politics, what do you say to that?

MR MBANGI: That is not coming as a surprise to me, because they were used, co-opted by the boers, so that is not a surprise to me.

MR MBANDAZAYO: Are you saying that they made up the fact that they went there to buy a goat? The only thing they know is that your reason for going to Mr Barnard's farm was to buy a goat.

MR MBANGI: I dispute that, we did not go there to buy a goat.

MR MBANDAZAYO: Is it not correct what they are saying, because you have already told the Committee that you never told them what was the reason for them going there.

MR MBANGI: What we went there to do was to get weapons and money. We did not go there to buy a goat, we did not have money to buy a goat or sheep.

MR MBANDAZAYO: Now after the mission who did you report to?

MR MBANGI: It became extremely difficult because my Commander had died, but the first person was his High Commander, my Commander's High Commander, Mr Mandu. That's the first person that was visited.

CHAIRPERSON: Sorry, I'm a little confused, can I clear up something? Maybe I didn't hear it when my microphone wasn't working.

Did you have a weapon at any stage?

MR MBANGI: There was only one weapon, the one that was with Dadasi, the deceased.

CHAIRPERSON: And did you have it at any stage?

MR MBANGI: No.

CHAIRPERSON: So you did not have a weapon at any stage on that day?

MR MBANGI: No, I never had a weapon.

JUDGE MILLER: Sorry, Judge Wilson.

Didn't you say you had a knife?

MR MBANGI: To me a weapon is something else. The firearm was with the deceased. The only weapon that I had was a knife, not a firearm.

CHAIRPERSON: You see in the statement that you have put up you said:

Is that correct?

MR MBANGI: Yes, that is correct.

CHAIRPERSON: And you then say:

MR MBANGI: Yes, I can hear that.

CHAIRPERSON: Did you?

MR MBANGI: No, Sir. I was sentenced in 1993 and I'm still in jail even now. It's impossible for me to remember exactly what happened in 1993.

CHAIRPERSON: Come, come, if you had shot somebody you would have remember it, and that is what you say you did. And you said this in March of this year.

MR MBANGI: Yes, that is correct.

CHAIRPERSON: Can you explain how you came to say it?

MR MBANGI: As we were leaving the farm after the mission, Barnard's son shot my Commander, I also shot him back. He was in the veranda.

CHAIRPERSON: But a few minutes ago you told me you did not have a weapon, a firearm, now you say you did have one and you shot him back. Do you remember that you took an oath to tell the truth?

MR MBANGI: I only got hold of the firearm from Mr Barnard. After he was shot by Mzawuabanthu, I took his weapon. That doesn't mean that I went there with a weapon, I only went there with a knife and after Barnard was shot by my Commander, I took his firearm.

CHAIRPERSON: Perhaps your counsel will let you explain further if he feels he can.

MR MBANDAZAYO: Thank you, Chairperson.

Mr Mbangi, I asked you - before the Chairperson asked you the question, I asked you to tell the Committee what actually took place in Mr Barnard's farm. And as correctly said by the Chairperson, you did not mention that after you shot Mr Barnard, you took his firearm. Can you then tell the Committee exactly everything that happened on the day in question, from your arrival at the scene, at Mr Barnard's farm.

JUDGE MILLER: But if that is so, Mr Mbangi, then in your statement, the very last sentence on page 4, you say:

Now you said you had Mr Barnard's weapon, why then did you say you couldn't get away the weapons?

MR MBANGI: What do you mean when you say that we didn't manage to ...(intervention)

JUDGE MILLER: If you take a look at your statement, page 4 of the bundle, the very last sentence, and I'll read it:

Now you on what you've just told us now, you say you picked up Mr Barnard's weapon and you shot at Mr Barnard's son. Now what did you do with Mr Barnard's weapon then when you'd finished shooting and you'd left the farm?

MR MBANGI: My Commander was shot and I was chased by the police on that veld and I couldn't get to the township with this firearm. I had to abandon this firearm because two police vans were after me. That's how I lost Mr Barnard's firearm.

JUDGE MOTATA: Did you have the firearm when Mr Barnard's son started shooting at you, when you did not see him, whilst repairing a vehicle or a motorbike?

MR MBANGI: Yes, the firearm was with me at the time.

JUDGE MOTATA: You had already taken Mr Barnard senior's firearm by then.

MR MBANGI: Yes, that is correct.

JUDGE MOTATA: You may proceed, Mr Mbandazayo.

MR MBANDAZAYO: Thank you, Chairperson.

Now Mr Mbangi, can you clarify this point for me. After you shot Mr Barnard, is it correct that you retreated, you went away?

MR MBANGI: Yes, that is correct, we left the place.

MR MBANDAZAYO: Your Commander was shot whilst you were leaving the place, is that correct?

MR MBANGI: Yes, after turning our backs on the farm, that's when he was shot at.

MR MBANDAZAYO: Can you tell the Committee - you have already told the Committee that your mission was to repossess firearms and money and kill Mr Barnard, but at that time you had not yet got the firearms and money, why did you go away without accomplishing your mission?

MR MBANGI: Because of the time constraint and things didn't go according to plan, because on your minds we thought that this was going to be a very disciplined operation, the white man was going to surrender as expected, but the white man refused to surrender and we had to run away without accomplishing the mission.

CHAIRPERSON: But the mission was to kill the farmer.

MR MBANGI: No, we didn't go there to kill the farmer.

CHAIRPERSON: Well let me read from your statement again:

MR MBANGI: The intention was not to kill, we only went there to get money and weapons. We didn't go there to kill Mr Barnard.

CHAIRPERSON:

It makes it clear there that your intention and instructions were, to go there to kill him and to rob him of weapons and money. You say so.

MR MBANGI: We didn't go there to kill, we only went there to get the weapons and the money, that is all. It happened as an accident.

CHAIRPERSON: Why did you say in your statement that you prepared, that you were instructed to go to his farm and kill him?

MR MBANGI: We were not instructed to kill. Even my Commander didn't mention anything about the killing, but it just happened as an accident.

CHAIRPERSON: So your statement is false.

MR MBANGI: This part of the killing I don't have any knowledge suggesting that we went there to kill.

JUDGE MOTATA: But if you have regard to the actual application you made, that is page 2, would be 10(b):

then you say:

MR MBANGI: I do not understand you, Sir.

JUDGE MOTATA: Loosely translated it is that you said he was white and there was an adage, probably, loosely from the PAC, that "Kill the farmers", and you were obeying that instruction from the PAC.

JUDGE MILLER: And that statement is contained in the application form which you filled in when you made application. It appears on page 2 of the bundle of documents.

MR MBANGI: At the time the land was in the hands of the whites and we were fighting against the whites, any white person at the time, because they were also the instruments of the apartheid.

JUDGE MILLER: But you see, this is the whole point we're trying to get at, Mr Mbangi, you've said now that it was not your intention to kill Mr Barnard when you went to the farm, your only intention was to obtain money and firearms, whereas in your application form you say the prime intention - if one takes it as a whole, was to kill Mr Barnard, in accordance with the slogan "Kill the farmer, kill the Boer", and in your statement which you made later, the one that appears on page 4, again you specifically say:

now you say at this hearing, that it wasn't your intention. What we're trying to find out from you is, first of all, what was your intention, was your intention when you went there, to kill the farmer? If it wasn't, why did you say so in your application form and in your statement? That's all we're trying to get at. We're trying to resolve this confusion which you yourself have created.

MR MBANGI: This is the police statement, the Investigator in this case, isn't that? Isn't this a police statement, Sir?

JUDGE MILLER: I don't know, it's ...(intervention)

CHAIRPERSON: No, you've been read now from your application for amnesty, dated the 3rd of May 1996.

JUDGE MILLER: And then the other statement that is referred to, is a statement that was made by yourself on the 2nd of March of this year, 2000, at the St Albans Maximum Prison.

MR MBANGI: What I'm saying, Sir, is that we didn't, or I didn't go there to kill Mr Barnard, please don't make me say it. I didn't go there to kill, I was just obeying the orders from my Commander, only to get weapons and the money. I was never given an order to kill, but it happened as an accident as it happened.

JUDGE MILLER: Yes, Mr Mbandazayo.

MR MBANDAZAYO: Chairperson, that's the evidence of the applicant.

CROSS-EXAMINATION BY MR FROST: Sir, you still haven't answered the question as to how you were recruited as a member of the PAC, will you please answer that question.

MR MBANGI: Please repeat your question, Sir.

MR FROST: Sir, you still haven't answered the question as to how you were recruited as a member of your political party. Will you please answer that question.

MR MBANGI: I joined APLA in 1985, I was recruited by Dadasi, my Commander.

MR FROST: How were you recruited, Sir?

MR MBANGI: He told me, he explained to me about this organisation, about the rights of the organisation.

MR FROST: Well can you explain to us what you were fighting for.

MR MBANGI: The battle was aimed at the whites, we were fighting for the land.

MR FROST: Sorry, to kill the whites?

MR MBANGI: Yes, because those were the people who were oppressing us.

MR FROST: Can you explain the structure of your political party?

MR MBANGI: Sir, I want to tell you this, I was just taking orders from my Commander. I was just fighting here inside and I was never trained in the exile. My Commander was giving orders and he also had his High Commander, but our battle was towards the whites, we were fighting with the whites. Everyone was aware of that.

JUDGE MILLER: Sorry, Mr Frost, if I may just intervene briefly.

Mr Mbangi, was there a separate recruitment in APLA, or was your recruitment into PAC and APLA one transaction, or did you first become a member of the PAC and then later became a member of the armed wing, APLA?

MR MBANGI: Please explain. It's one organisation as far as I know.

JUDGE MOTATA: No, my colleague is asking you a simple question, that there is the political organisation which is Pan Africanist Congress and there's the armed wing, Azanian People's Liberation Army, which process took place, were you firstly recruited into the political wing and thereafter into the armed wing of that political organisation? It's a simple question. And they are different.

MR MBANGI: I first became the PAC member.

JUDGE MILLER: Mr Frost.

MR FROST: Sir, were you addressed by anyone other than the deceased, Stokwe, as your Commander?

MR MBANGI: It's only my Commander who gave me the briefing.

MR FROST: And other than him giving you a briefing, you actually have no idea how the PAC or APLA was structured, is that correct?

MR MBANGI: No-one told me anything about that.

MR FROST: How did you come to meet Stokwe, as a friend?

MR MBANGI: Yes, he came as a friend.

MR FROST: Now your High Commander that you referred to Defile, what are his full names?

MR MBANGI: We used to call him Mandu.

JUDGE MILLER: Do you know what his full names are, besides Mandu?

MR MBANGI: No, he was just a High Commander to my Commander, not my Commander. He was not my Commander, but he was just a High Commander to my Commander.

MR FROST: And how were you aware of this?

MR MBANGI: My Commander told me because he was also taking orders from his High Commander, and then he would later bring down the instructions to us.

MR FROST: Now you were also known as Lonki, is that right?

MR MBANGI: Yes, that is correct.

MR FROST: Now I've been favoured just now with a statement from Mandu, and I want to read one of the paragraphs of that statement. Mr Chairman, it's not an exhibit at this stage, may I hand it in as an exhibit? Unfortunately I don't have copies, I don't know if - may I hand it in as an exhibit at this stage.

CHAIRPERSON: Yes, certainly.

MR FROST: It's a statement by Sydney Kwaziso Mandu Nonje Befile.

CHAIRPERSON: Is it headed: "Mbangi's Application" The first page on the top right.

MR FROST: Yes, that is so, Mr Chairman. That is the applicant.

CHAIRPERSON: Exhibit A.

MR FROST: As the Panel pleases.

Now Sir, I'm referring to the typed statement, page 1 thereof, it's unfortunately not numbered, but three paragraphs from the bottom it states:

Can you comment on this?

MR MBANGI: It's a surprise to me that I am a brother to him, I know nothing about that.

MR FROST: Can you think of any reason why he would refer to you as being his brother?

MR MBANGI: He's a friend, but he was actually older than me and he was just a friend. Maybe that's what he meant.

MR FROST: So he was also a friend of yours together with Stokwe.

MR MBANGI: Yes.

JUDGE MILLER: Sorry, just while you're there, Mr Frost. In the same statement, and I just read, this is a statement made by Mandu, whose name is actually Sydney Xabiso Nonoi. He says:

Do you have any comment on that?

MR MBANGI: There is nothing to comment about.

JUDGE MILLER: Mr Frost.

MR FROST: Now Sir, the persons that went with you, with yourself and Stokwe, you recruited them you said. I refer to Mzawuabanthu Stokwe and Mbotjwa.

MR MBANGI: Yes, that is correct.

JUDGE MILLER: That's the persons you're referring to, isn't it Mxdisi Mbotjwa and Ntamo, not Stokwe.

MR MBANGI: I recruited Mxdisi Mbotjwa and Luyanda Mdamu.

JUDGE MILLER: Page 4, in the middle.

MR FROST: Yes, thank you.

Now how did you recruit them, Sir?

MR MBANGI: I involved them in this mission.

MR FROST: Was this their first recruitment? Let me rephrase that, sorry. Is this the first time ...(intervention)

MR MBANGI: Yes, it was the first time for me to recruit them.

MR FROST: So did you inform them for what purpose they were being recruited?

MR MBANGI: Yes, I told them about the job, the mission.

MR FROST: Now what did you tell them about the mission?

MR MBANGI: I told them that we were going to the farm, to Mr Barnard's farm and we were going there to get the weapons and the money, but killing would come by accident, and they were willing to take the job. That's how I recruited them.

MR FROST: You see, Sir, I understood your evidence earlier, to be that they were unaware of the fact that they were going to rob, because if they knew that they might change their minds and then they might end up co-operating with the police. That was the effect of your evidence.

MR MBANGI: We didn't tell them that we're doing it for the organisation. They had no knowledge about the organisation, they only knew that we're just a group of people going there to rob weapons and the money, but they didn't know that we were doing it for the benefit of our organisation.

MR FROST: Now can you explain to us why, after you recruited them, you did not tell them that it was for the benefit of the organisation?

MR MBANGI: It would be difficult for them because if -they wouldn't be willing to do it if they were not doing it for their personal benefit but for the organisation. They wouldn't do it.

JUDGE MILLER: Sorry, Mr Frost.

What was the arrangement with them, what sort of cut would they get of the proceeds from the robbery? Would they get an equal share, would you all divide it up equally? What was the agreement?

MR MBANGI: They were going to get money, but they were not going to get weapons, weapons were going to be given to the organisation.

JUDGE MILLER: So if you got money from the robbery, would they - you say there were five of you, is that right?

MR MBANGI: Yes.

JUDGE MILLER: Would they have got one-fifth share each? If you got R1 000, would each of them have got R200?

MR MBANGI: We were going to give the three of them money and we'd take the remainder to the organisation.

JUDGE MILLER: Sorry, Mr Frost.

Now there was yourself, there was Stokwe, there was Mbotjwa and there was Mdamu, who was the fifth person?

MR MBANGI: Dadasi.

JUDGE MILLER: Dadasi. What are his names?

MR MBANGI: Dadasi Befile Stokwe.

JUDGE MILLER: So was he the brother of Mzawuabanthu Stokwe?

MR MBANGI: Yes, they were brothers.

JUDGE MILLER: Yes, thank you.

CHAIRPERSON: He was the brother of Stokwe, your leader?

MR MBANGI: Yes.

CHAIRPERSON: Is he also known as Mzawuabanthu Briza Stokwe?

MR MBANGI: No, Dadasi Stokwe and Mzawuabanthu Briza Stokwe are two different people.

MR FROST: Now Briza Stokwe, who is he?

MR MBANGI: Briza Stokwe, that is ...

MR FROST: Sorry, who is Briza Stokwe? I didn't hear an answer. Mzawuabanthu Briza Stokwe.

MR MBANGI: That is him, that is Briza Stokwe.

JUDGE MILLER: Sorry, I'm a little bit confused here, because if one takes a look at page 8, there we have a person reflected as an accused person in a trial, in the indictment, is Mzawuabanthu Stokwe.

MR MBANDAZAYO: Chairperson, I think the difference lies at the spelling. The other one is M-z-w-a, the other one is M-z-i-w-a.

JUDGE MILLER: The names are extremely close, it's just that "i". That clears the confusion, thank you Mr Mbandazayo. Mr Frost.

MR FROST: Thank you.

Sir, when you went to rob Mr Barnard, what was the plan?

MR MBANGI: We first discussed this, after that we left for Mr Barnard's farm to do the job.

MR FROST: Why did you choose Mr Barnard?

MR MBANGI: The target was suggested by my Commander, and I cannot say why did he choose Mr Barnard, but I just took the order from him.

MR FROST: Is it not so that what you robbed was a - or the place you robbed was an empty piece of ground with a kraal with goats and a truck standing on it?

MR MBANGI: What do you mean when you say it was just a piece of ground with nothing important? Please explain that.

MR FROST: That this wasn't a piece of ground with a farmhouse on, where the farmer, Mr Barnard, lived, it was just a place from which he sold goats.

MR MBANGI: There was a farmhouse next to Mr Barnard's premises. He was not in the house, he was in the kraal. There was a big yard there and there was a house next to Mr Barnard's premises and he was in the kraal, not in the house.

MR FROST: You see, Sir, I want to put it to you that the place you robbed wasn't a farm, it was a place constituting a piece of ground on which there was a kraal and on which Mr Barnard's truck was parked, from where he was selling goats.

MR MBANGI: I am not going to argue with you about that because I'm telling you that there was a farmhouse there. Mr Barnard's son came from that house.

MR FROST: I also put it to you, Sir, that Mr Barnard's son who is sitting next to me, will testify at this hearing that his father's farm, Mr Barnard, was some kilometres away from where he was shot and killed and that he, Mr Barnard's son was nowhere near on the day in question.

MR MBANGI: ...(no English interpretation)

MR FROST: He does have two sons.

JUDGE MILLER: Maybe if you can just clear it before you put that, where was the other son?

MR FROST: He was in Krugersdorp at the time.

JUDGE MILLER: Perhaps if you could just repeat what you had put, for comment by the applicant.

MR FROST: I want to put it to you Sir, that Mr Barnard's farm, the man that was shot and killed, was some kilometres away from where he was killed. Let me put that to you first of all.

MR MBANGI: I am not going to dispute that, but I'm telling you that there was a house next to Mr Barnard's lorry.

JUDGE MILLER: Yes, but didn't you say that you shot at Mr Barnard's son after you picked up the father's gun?

MR MBANGI: Yes, I said so, because he was coming out of that house. I cannot say whether it was Mr Barnard's son or not, I didn't have time to check that, but he came out of the house trying to protect Mr Barnard, and he was also a white man.

CHAIRPERSON: Sorry, are you now saying you cannot say if it was Mr Barnard's son or not, but up to now you have testified again and again that it was his son that you shot. Do you now say you don't know?

MR MBANGI: I am taking him as Mr Barnard's son who was trying to protect the father. I don't know whether he was a father or not, but I regard him as Barnard's son.

MR FROST: Sir, I want to put it to you that the deceased, Mr Barnard, the firearm that he had on him that day was never taken away from him, that it was recovered there from him at the scene.

MR MBANGI: I took Mr Barnard's firearm and I abandoned it a distance from the scene.

MR FROST: Sir, where were you going to get the weapons from that you went to rob?

MR MBANGI: We were expecting him to take us inside the farmhouse, the house that I'm referring to.

JUDGE MILLER: Mr Mbangi, was the first time you had been to that place?

MR MBANGI: It was for the second time because I had been there before and it was for the second time during this mission.

JUDGE MILLER: So you're saying you went there for the first time just to do some surveillance, and then you went back for the mission?

MR MBANGI: Yes.

JUDGE MILLER: Mr Frost.

MR FROST: Now why is it that two of your accomplices or persons that went with you - I'll refer to the statements, pages 39, 40, 41, 42, the statement of Mbotjwa and Stokwe, why would they say they went there to buy a goat?

MR MBANGI: That's what they said in court, because they turned against me, they became State witnesses and I was the only person who was sentenced out of five of us. That is not surprise to me when they changed the story and said that they went there to buy goats. And the three of them are not in jail, I'm the only one who is in prison, whereas the five of us were there on that mission.

MR FROST: So is it not so that you also denied any participation in this crime, in your trial in the High Court?

MR MBANGI: Yes, I suppose to deny that because that was in court and I knew that I was going to be sentenced. I had to protect myself, I couldn't say yes, I killed a white man during the days of oppression.

MR FROST: And after you were convicted and found guilty by the court, when you were asked with regards to the mitigation of sentence, did you not tell the court that you did this in compliance with your political organisation's orders?

MR MBANGI: During those days I couldn't mention such things because we were under the apartheid regime.

JUDGE MOTATA: But Mr Mbangi - if I may come in Mr Frost, this sentence was heard, if I'm not mistaken, if I'm looking at the record, page 33, on the 10th September 1993, and the organisations, the banned organisations were unbanned in 1990, and there was already talk about a new dispensation? Wouldn't I be right?

MR MBANGI: Yes, that is true, Sir, the organisations were unbanned, but we were still oppressed, we were still under this apartheid regime.

JUDGE MOTATA: What I'm saying is that there was talk that let's get a better South African, in other words, amongst the parties. That's what I'm saying, because if you look at it, immediately the following year there were elections, hardly a year thereafter when you were sentenced.

MR MBANGI: That is true. Yes, we were on our way to the elections before that, but we were still oppressed, but we were still preparing ourselves to get into the apartheid regime.

JUDGE MOTATA: You felt even on the 10th of September 1993, if you had said "I did what I did to obtain money to further the aims of the Pan Africanist Congress", the then regime would have come down hard on you.

MR MBANGI: I was afraid to mention that because the government of the day was a very bad one. I didn't want to victimise myself.

JUDGE MOTATA: Thank you, you may continue, Mr Frost.

MR FROST: Sir, on page 3 of your application, paragraph 11(a), you were asked, translated, whether the crimes that you committed that you're applying for amnesty, basically whether they were - whether someone had told you to commit those crimes.

MR MBANGI: No-one told me to do those things.

JUDGE MOTATA: Which things?

MR MBANGI: These that I'm talking about.

JUDGE MOTATA: The evidence that is before us, nobody told you to say that, or which things are you referring to? I just want some clarity, I'm now confused, totally confused. I don't know about my colleagues now. Could you explain yourself, what things are you referring to now?

MR MBANGI: The mission, I was involved in the mission for the benefit of the organisation. After I was sentenced, the government of the - during the government of democracy I decided to apply through the TRC for amnesty, to talk about this incident. I was not doing this for a personal gain, but I was doing it for my organisation.

JUDGE MILLER: But I think what the point here is, Mr Mbangi, if you take a look at question 11(a), as it appears on page 3 of the papers, it's a portion of the application form that you signed when you made application for amnesty, and question 11(a) says, or is to the effect: "Did you act on the instruction or order of any person?" Right? Your answer is:

now today when you gave evidence you said the only reason you went to the Barnard's, to Mr Barnard there, was because you received an order from your Commander, Stokwe. That is what Mr Frost is asking you. Why did you say you didn't receive any order from any specific person in your application form, but here you say that you acted under orders from your Commander. That is what he's trying to find out from you. It's not a trick question or anything, it's just two contradictory statements. We want to know what is your stand now.

MR MBANGI: I am saying, my Commander would identify the targets and I would obey orders from him and I would do as told.

JUDGE MOTATA: Do you follow the question, Mr Mbangi? Do you follow the question? You are referred to page 3, look at page 3, and what you are saying there - the question is:

and you say:

That's what you said on the form you signed on the 3rd of May 1996. That's the question. What did you mean by that, that you were not given orders?

MR MBANGI: I do not understand what is here, because I was given orders for everything that I did. I wouldn't take initiative and do anything without instructions.

JUDGE MOTATA: Mr Frost.

MR FROST: Now you've told us that the deceased was your Commander and he was the one that gave you the orders, this is what you've told us today, remember?

MR MBANGI: Yes.

MR FROST: Now if I can refer you to page 6 of the second statement you appear to have made, on the 23rd of March 2000, about the fifth paragraph from the bottom you say:

MR MBANGI: Mandu Befile was a High Commander to my Commander and my Commander would get instructions from him and then he would further command me. I knew nothing about the High Commander, I only knew about my Commander, who would give me instructions, my immediate Commander.

MR FROST: The High Commander being your friend, who in his statement denies being a Commander.

MR MBANGI: My Commander was my friend, the deceased Mr Stokwe.

MR FROST: I'm talking about your High Commander, Mandu Befile, your friend.

MR MBANGI: Mandu was the High Commander of the deceased.

MR FROST: But he was your friend and your High Commander.

MR MBANGI: My Commander was the one who was also my friend.

MR FROST: Sir, just to return to your statement of the 23rd of March 2000, that same paragraph where you say:

what do you mean by that in your statement?

MR MBANGI: Which statement are you referring to Sir?

MR FROST: On the 23/03/2000, page 6, fifth paragraph from the bottom. It starts with:

What do you mean by the "operation as APLA members"?

MR MBANGI: APLA was under the PAC, so it was falling under the PAC, that is APLA.

MR FROST: But Sir, I understood that you weren't a member, or you didn't have formal training from APLA.

MR MBANGI: I got my training inside, not outside, not in exile.

MR FROST: Sir, and once again in this statement, this latest statement of the 23/03/2000, the very next paragraph you say:

Wasn't that your intention, to rob and kill?

MR MBANGI: Our intention was to rob his weapons, not to kill, but it just happened when we got there.

MR FROST: Sir, I want to put it to you without wasting time, that you have not made a full disclosure of the true facts.

MR MBANGI: Which truth do you want except for the one I have just told before the Commission?

MR FROST: I further want to put it to you that the act, the commission that you made by robbing and killing Mr Barnard, was not associated with a political objective.

MR MBANGI: You are the one saying that, but I'm saying that it was politically motivated.

MR FROST: Finally I want to put it to you that it was definitely not in the furtherance of your political struggle, if you belonged to such a political party at the time.

MR MBANGI: I did what I did to further the struggle of the organisation, not my own personal intentions.

MR FROST: That is what I finally want to put to you Sir, it's that what you did you did for your own personal financial gain. It may well have been that Mr Barnard died unfortunately, but the robbery at least was committed for pure financial gain for yourself.

MR MBANGI: I'm not going to dispute that, but what I'm saying is that we were there furthering the interests of the organisation.

MR FROST: Thank you, Mr Chairman and Members of the Panel, I have no further questions.

CHAIRPERSON: If I could just clarify one point on this question of personal gain. In your amnesty application on page 3, the question is:

and your answer is:

The next question is:

and the answer it:

So you are there saying that you got a reward of R1 700, is that correct? Is that what you have said in your amnesty application?

MR MBANGI: No, that is not correct, we did not get any money. There was no chance for us to get money, so ...(intervention)

CHAIRPERSON: But you have said there "a reward in an amount of R1 700. The definite amount you've put into your application.

MR MBANGI: I don't have any knowledge about that money.

CHAIRPERSON: Well how did you come to put it in your amnesty application?

MR MBANGI: This also surprises me now, this amount of money.

CHAIRPERSON: Well continuing for a moment, if I may, on the question of the money, wasn't the intention to rob Mr Barnard at this kraal where he went to sell goats?

MR MBANGI: Our intention, we went there to rob money and the weapons, but not to kill.

CHAIRPERSON: But it was where he sold goats, wasn't it?

MR MBANGI: Yes.

CHAIRPERSON: And you said that at your trial, in the statement you made. Didn't you?

MR MBANGI: Yes, this incident happened where Mr Barnard was selling the goats, all of this happened there.

CHAIRPERSON: Yes, he was driving a thing you called a "skaap lorrie", a sheep truck, a goat truck. That's correct, isn't it?

MR MBANGI: Yes, that is correct.

CHAIRPERSON: Right, I'll leave that for the moment. One other point, you said that these people who were with you became State witnesses, they turned against you.

MR MBANGI: Yes.

CHAIRPERSON: That is not true, is it, they were accused people at the trial and they remained accused until two of them were found not guilty.

MR MBANGI: They were used by the investigators of Louis le Grange, against myself, because I was not with them at the awaiting trial, they were separated from me, they were kept at a separate place.

CHAIRPERSON: At the trial they were accused people, weren't they, and they gave evidence in their own benefit?

MR MBANGI: Yes.

CHAIRPERSON: And I think you have been asked, Mzawuabanthu Stokwe, Briza Stokwe and Mbotjwa, both have made statements saying they went with you to buy a goat. You came and asked them to accompany you to buy a goat. You know that, your lawyer would have shown you the statements.

MR MBANGI: Yes, I know, that's what they are saying.

CHAIRPERSON: And that is almost exactly what you said at your trial, as one can see at page 28, that you were asked to go with them to buy goats.

MR MBANGI: Yes, that's what I said during the trial.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS THABETHE: Thank you, Mr Chair.

Mr Mbangi, can you explain to the Committee Members how it came about that you were chosen to do this mission?

MR MBANGI: My Commander, Dadasi, came to me and he said that he wanted three people, so he asked me to look for those three people and I found Mxdisi, Briza and Luyanda Mdamu, and then that's how we became to do this act together.

MS THABETHE: You have indicated that you were all APLA cadres, do you still maintain this?

MR MBANGI: Three of us were recruited by myself, Dadasi, Mxdisi, that day.

MS THABETHE: Wasn't that the same Commander?

MR MBANGI: Yes, he was my Commander. Mxdisi and Briza and ...(indistinct).

MS THABETHE: On page 41 of the bundle, Briza has indicated that he never took part in politics and was never recruited to be an APLA member by any party. Can you comment on that?

MR MBANGI: I read his statement, I read Briza's statement and Briza, they were used even before and they are free now, so I'm not surprised about what he is saying here.

MS THABETHE: My question is, he says he never took part in politics and he was never recruited to be an APLA member, are you disputing that? Just that fact.

MR MBANGI: Yes, I'm disputing that.

MS THABETHE: Tell me, why would Mzawuabanthu Stokwe lie about the fact that he was an APLA member or not? Why would he lie about that?

MR MBANGI: He even lied about myself. I am where I am today because he is one of the people that lied about myself.

MS THABETHE: What lie did he tell about you, because I thought in court you said the same thing?

MR MBANGI: We didn't say the same thing, we were put in separate places. He is the one who turned against me, he became a State witness.

JUDGE MOTATA: May I just interpose here, Ms Thabethe.

Look at page 12 of the bundle, Mr Mbangi. We have there the following people who were charged:

This Stokwe, is it the same person you are talking about right now?

MR MBANGI: ...(no English interpretation) Briza.

JUDGE MOTATA: Is that Briza you are talking about?

MR MBANGI: Yes.

JUDGE MOTATA: You see the question is that he's charged as well, forget that he was in a separate cell to you, but he appeared and at the end he was discharged. How could he lie about you when he was charged, until when this happened - the thing we have before us is a transcript of the proceedings and this is the judgment given by Judge ...(indistinct) and he found him not to be guilty after he was charged with you throughout. How could you say he lied about you?

JUDGE MILLER: He certainly wasn't a State witness.

MR MBANGI: Yes Sir, we were all charged, the five of us were charged and one died, one was arrested on the spot, on the place of the incident, that was Mbotjwa, and Mbotjwa was the one who was sentenced three or five years suspended. Luyanda and Briza were the ones who blamed me about all this, they said that I was the one who took them to this place, but they were also charged, but they were found not guilty, even though they were not innocent because they were involved in this incident, but they were discharged.

JUDGE MILLER: Sorry, to get back to Ms Thabethe's question. What lies did Stokwe say at the trial? Because on your own evidence, you yourself did take them, you recruited them to take them there. If you hadn't had done that, they never would have gone to that place where goats were being sold. What lies did they tell?

MR MBANGI: I am here to tell the truth today, but at the court during the trial I didn't tell the truth, but now I'm telling you as it happened, but during those times I couldn't tell it like I'm telling it now.

JUDGE MOTATA: But according to you, Mr Mbangi, you did not tell them that the mission you were executing was for the purposes of the PAC, that is for the elections and all that, you told that you were going there to rob guns and money. Let's forget about the accidental killing. And according to you, the money would have been shared amongst the five of you and the guns taken to the PAC. Did I heard you correctly this far?

MR MBANGI: Yes, that's what I said, Sir.

JUDGE MOTATA: So they knew nothing then, and you agreed when you were asked, that the money you were going to share wouldn't be taken to PAC, they would keep it for themselves. Isn't it so?

MR MBANGI: We were doing this for the organisation, but they were going to get the money because they knew that we were going to rob money, but we knew that we were doing that for the benefit of the organisation.

JUDGE MOTATA: So if you had got R1 000, as my colleague had asked you, you'd be getting R200 each. And the others were non-members of the PAC, how were you going to benefit the PAC to get money for elections?

MR MBANGI: We would take that R1 000 back to the organisation. If we got the R1 000, we'd take it back to the organisation. It was not our intentions to personally gain.

JUDGE MOTATA: The people who were non-members and who didn't know that you were doing it for PAC, what would they get out of it?

MR MBANGI: We would give them something to satisfy them, and then we would give them a green light, but we would give them money and then take the remainder, take it to the organisation.

JUDGE MOTATA: How would PAC benefit out of the guns, because the money was for elections, how would they benefit from the guns?

MR MBANGI: It was going to be the PAC that was going to take the decision what to do about the money and the weapons.

JUDGE MOTATA: Did your Commander say that the PAC needed guns and money for elections?

MR MBANGI: Yes.

JUDGE MOTATA: And he did not explain to you what the guns would be used for, in the elections?

MR MBANGI: No, he didn't.

JUDGE MOTATA: You may proceed, Ms Thabethe. Sorry to have taken so long.

MS THABETHE: Thank you.

It's correct, Mr Mbangi, isn't it, that it's the policy of APLA or the PAC, that when there is a mission that is going to be done, it's first planned properly?

MR MBANGI: Yes, that is correct.

MS THABETHE: Did this happen with you?

MR MBANGI: Yes, we planned. We cannot just do something without planning first.

MS THABETHE: Who did you plan it with?

MR MBANGI: With the people that were going to do the job.

MS THABETHE: I'm confused, Mr Mbangi, you're saying you planned this thing with the people who were going to do the job, and minutes before you said you did not - or you confirmed the fact that you did not inform them of what the mission was going to be about, which one is true between those two?

MR MBANGI: What I did not tell them is that we were going to do this for the benefit of the organisation, but they knew about the mission or about what was going to be done, but we didn't tell them that we were doing this for the benefit of the organisation.

MS THABETHE: You are changing your story now, Mr Mbangi, do you realise that?

MR MBANGI: What do you mean I'm changing my story?

MR MBANGI: Initially you had said Mr Stokwe and Mxdisi Mbotjwa were correct in saying that you went there to buy goats, because they did not know what your mission was, now you are saying they knew what the mission was. Isn't that a contradiction?

MR MBANGI: They knew, but what they didn't know was that they were doing this for the benefit of the organisation, but they were aware of the job that was going to be done.

MS THABETHE: I won't take this any further.

JUDGE MILLER: Ms Thabethe, if I may just intervene while you're talking about this question of planning.

You say that missions were well planned. You've told us, Mr Mbangi, that there were five of you to go and carry out this robbery, right?

MR MBANGI: Yes.

JUDGE MILLER: You've also said that amongst the five of you, you only had one firearm and that was in the possession of your Commander, Stokwe, is that correct?

MR MBANGI: Yes.

JUDGE MILLER: You also said in the statement here that Mandu had given you two firearms, but you only took one with you. Now I want to know, seeing that there's five of you going to do a robbery, you've been given two guns, why do you only take one gun?

MR MBANGI: What happened is, the person who took the firearm is the deceased, our Commander. He is the one who took the gun.

JUDGE MILLER: Do you know why only one gun was taken when you say that Mandu made two guns available?

MR MBANGI: I was just obeying the orders of my Commander, I was doing what he told me to do, so I had no right to dispute or to argue with him.

JUDGE MILLER: Yes, thank you. Ms Thabethe.

MS THABETHE: Thank you, Mr Chair.

Mr Mbangi, Mr Befile has informed us that you are brothers, in that you have the same mother, are you disputing this fact?

MR MBANGI: ...(no English interpretation)

MS THABETHE: Mandu Befile.

MR MBANGI: We are not brothers, Mandu has got his own mother and I have my own mother.

MS THABETHE: Okay. I want to go back to the list of people you went with, was Vuyani Befile there?

MR MBANGI: No, Mxdisi Mbotjwa was the one who was there.

MS THABETHE: Do you know who Vuyani Befile is?

MR MBANGI: Yes.

MS THABETHE: And are you saying he was not there?

MR MBANGI: He was there during the mission, but the police didn't include him. It was only the four of us who were charged. From the time that we were arrested they could not find Vuyani, so it was very difficult for us to mention him.

MS THABETHE: So in actual fact there were six of you, not five of you, isn't it?

MR MBANGI: Yes, that is correct.

MS THABETHE: Now on page 4 of your statement, the last sentence, you've indicated that the late Mzawuabanthu Stokwe was shot dead, do you still maintain this?

MR MBANGI: Yes, he was shot there.

MS THABETHE: But Mr Mbangi, Mr Mzawuabanthu Stokwe is still alive.

JUDGE MILLER: Are you sure you're not making the same mistake that I made earlier, Ms Thabethe?

MS THABETHE: I'm sure about this, Mr Chair.

JUDGE MILLER: Oh, so both Mr Mziwuabanthu and Mr Mzawuabanthu, they're both still alive?

MS THABETHE: It's the same person, Mr Chair.

JUDGE MILLER: Okay, sorry. Carry on.

MS THABETHE: Mr Mbangi, Mr Mzawuabanthu Stokwe is still alive, are you sure it's Mr Mzawuabanthu Stokwe who was shot dead?

MR MBANGI: Yes, I'm sure it was Mzawuabanthu Tata Stokwe, and there is also Mzawuabanthu Stokwe.

MS THABETHE: So are you saying there are two Mzawuabanthu Stokwes now?

MR MBANGI: Yes, their names are similar.

JUDGE MILLER: Ms Thabethe, if you take a look at page 28 and page 4, this is what Mr Mbandazayo pointed out to me earlier. Accused number 3 at the trial is Mzwua... Do you see? Take a look at page 28.

MR MBANDAZAYO: Yes, Chairperson, I ...(intervention)

JUDGE MILLER: And then the one mentions - sorry, Mr Mbandazayo, the one mentioned on page 4, the spelling is different.

MS THABETHE: Mr Chair, the way I understand it, I stand to be corrected, is that the person who died is Dadasi Befile/Stokwe. It's not clear, but Mzawuabanthu Stokwe, there's only one Mzawuabanthu Stokwe.

JUDGE MILLER: Yes, but Mziwuabanthu and Mzawuabanthu are two different names? That's what I'm trying to say. If you take a look at ...(intervention)

MR MBANDAZAYO: Yes Chairperson, what I'm trying to get at, when somebody is narrating to you, you will get it as the same name, you will think that he's talking about Mzawuabanthu, yet it's Mziwuabanthu. That's where the difference is.

JUDGE MILLER: It's like Steven in English, if you say Steven or Steven, it could be spelt p-h or with a v?

MR MBANDAZAYO: Yes, Chairperson. The mistake is that someone who was taking the statement thought that Mzawuabanthu is the same person, otherwise the other one who would die, it is Mziwuabanthu. M-z-i-w-u-a, he's the one who died. Nickane: Dadasi Stokwe. Then Mzawuabanthu Stokwe, the brother, is the one who is alive, who was also charged. That is M-z-a-w-u-a.

JUDGE MOTATA: For my own clarification, if I may come in here. We know that there is a Mzawuabanthu who has been charged, is it Mziwuabanthu, or Mzawuabanthu who was charged with Mr Mbangi?

MR MBANDAZAYO: It's Mzawuabanthu, M-z-w-u-a. That's the Mzawuabanthu who was charged.

JUDGE MOTATA: And Mziwuabanthu is the one who got killed at the scene?

MR MBANDAZAYO: Yes, Chairperson.

JUDGE MOTATA: So let me get it right then. At the scene of the mission, to use Mr Mbangi's statement's wording, is that there was Mbotjwa, himself, Mziwuabanthu, Mzawuabanthu, Madolo and Befile.

MR MBANDAZAYO: Yes.

JUDGE MOTATA: Now it's clear.

MS THABETHE: What is that other surname, Stokwe?

MR MBANGI: Stokwe.

MS THABETHE: Not Befile?

JUDGE MILLER: No, the last one is Vuyani Befile I think.

MR MBANGI: Yes, it's Stokwe.

MS THABETHE: I'm asking you because earlier on you said it's Tata Befile Stokwe. Is that correct?

MR MBANGI: Tata se Stokwe.

MS THABETHE: Not Tata se Befile Stokwe?

MR MBANGI: No.

MS THABETHE: Okay. Thank you Mr Chair, I'm indebted to you. If you can bear with me, Mr Chair.

Okay, you've also indicated that your intention when you went to this farm, was not to kill Mr Barnard, is that correct?

MR MBANGI: That is correct.

MS THABETHE: Now why did you kill him?

MR MBANGI: That just happened when we were there, because Mr Barnard didn't want to surrender, he wanted to fight back. So that's how it happened.

MS THABETHE: If I may go back a bit, you indicated that you had planned this mission, how did you plan to execute it? In other words, where were you going to get the weapons and the money from?

MR MBANGI: We were going to get the weapons and the money from Mr Barnard.

JUDGE MOTATA: Where? If I may come in. Where? Because now he's at this place where there are goats and in his lorry and the house is further away from there, where, when you went to him? Was he was at where he was selling goats or sheep?

MR MBANGI: The house was next to his truck, so we thought that Mr Barnard was going to surrender and then we'd take him to the house, but it didn't happen that way.

JUDGE MOTATA: So he's shot dead, why didn't you proceed to the house to get the money and the weapons?

MR MBANGI: It was due to time constraints, we had no time to go inside and it was not our intention to shoot at him, so that's why we decided to leave the place after that happened.

MS THABETHE: If you went there to rob only, and you're telling us now as I understand, Barnard's truck was parked right next to the house, is that correct?

MR MBANGI: That is correct.

MS THABETHE: Why didn't you wait for him to get out of his truck?

MR MBANGI: Get out how?

MS THABETHE: I thought you shot him while he was still inside the truck and he fell in the truck.

MR MBANGI: Yes, he was in the truck, he was shot in the truck.

MS THABETHE: "Get out" means open the door and climb out, why didn't you wait for him to do that if he had come with his vehicle to his home?

MR MBANGI: The door of the truck was opened, Mr Barnard was accepting money and there were sheep and goats at the kraal. He was accepting money and the door was opened, his feet were outside. His firearm was on the truck, on the ceiling of the truck.

MS THABETHE: So he was doing business there, selling goats.

MR MBANGI: Yes.

MS THABETHE: He wasn't parked outside his home.

MR MBANGI: The house was next - he parked next to the house.

MS THABETHE: Well if he was selling goats from his home, why did he need to park the truck there?

MR MBANGI: The truck was also in his land.

JUDGE MILLER: Mr Mbangi, could you indicate a distance how far the truck was from the house? Can you indicate a distance in the room, or is it further than this, any distance in this room? Just approximately.

MR MBANGI: I can say that the house is here where I am sitting and then the truck was parked next to the corner of the room.

JUDGE MILLER: Of the room, where you see that "No Smoking" sign in the light there?

MR MBANGI: Yes.

JUDGE MILLER: That would be 30 paces, about 30 paces.

MR MBANDAZAYO: I would 13 metres. I'm using the marking on the door ...(indistinct - no microphone) about 13 metres.

JUDGE MILLER: Do you agree? 15, say.

MS THABETHE: We're going to adjourn in a few minutes and I will then invite counsel to pace it off.

MS THABETHE: Can I proceed? Just a few.

Mr Mbangi, I want to put it to you that it was not necessary for you to shoot Mr Barnard.

JUDGE MILLER: He said Stokwe shot him. You mean the son?

MS THABETHE: Yes.

JUDGE MILLER: What do you mean?

MS THABETHE: Do you mean you in the singular, or you as a group?

MS THABETHE: You as a group. They were all in this together and it just happened.

I want to put it to you, Mr Mbangi, that there were six of you, you could have overpowered Mr Barnard and got the weapons and the money that you were looking for, it was not necessary to kill him. What is your response to that?

MR MBANGI: What I'm saying is, it was not our intention to kill him, but Mr Barnard drew out the weapon from the truck, so when he was doing that, it was then that we shot, that my Commander shot at him. But it was not our aim to kill him.

MS THABETHE: Are you suggesting now that your Commander killed him in self-defence?

MR MBANGI: Yes, I can say that because he was taking out a firearm, so there was no other way.

MS THABETHE: And should I take it that you are saying you couldn't overpower him, the six of you?

MR MBANGI: No, if ...(intervention)

JUDGE MILLER: Ms Thabethe, we heard that he said that the two of them went to the truck, the others went to the kraal.

MS THABETHE: Okay. I'll withdraw the question then, Mr Chair. Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: I'm not sure what arrangements are made for the various interested parties to obtain refreshments over the luncheon period, whether they do so here or whether they have to go back to the city, in which case they will take more time.

MS THABETHE: Mr Chair, I would like to ascertain that from Joe, our Logistics Officer, I'm actually not sure as well.

CHAIRPERSON: I'm wondering what time we adjourn till. It is now five minutes past, should we say quarter to two, if we aren't here by then we'll have to wait, if we are ready to go on at quarter to two, we will do so. Does that suit you?

MR MBANDAZAYO: Yes, Chairperson.

CHAIRPERSON: We'll now adjourn.

NXHOLISEKO MBANGI: (s.u.o.)

CHAIRPERSON: Right, shall we continue? Had you finished?

CHAIRPERSON: Yes, Mr Chair.

CHAIRPERSON: Any re-examination?

RE-EXAMINATION BY MR MBANDAZAYO: Only on one aspect, Chairperson, only on what came out that there was a sixth person, which of course all the time we had five people.

Mr Mbangi, can you tell the Committee why didn't you tell them about the sixth person?

INTERPRETER: The speaker's mike is not on.

MR MBANGI: Accused number 6 was not found by the police, so his name was not mentioned from the start when the trial started in front of the judge.

MR MBANDAZAYO: Mr Mbangi, didn't you come to the Commission to tell the Commission what happened on the day in question, the whole truth about what actually took place? We understand why he was not mentioned in court, because this person was not charged, but now here you said you wanted to disclose everything regarding this particular offence, why didn't you mention this person, this sixth person?

MR MBANGI: It is because when the trial started, the investigators did not include accused number 6, so that it why I decided not to mention his name but to mention those that were charged with me.

MR MBANDAZAYO: That is all, Chairperson.

CHAIRPERSON: Thank you. Before my colleagues get a chance, there is one question that I would like to ask you. I think we've all seen it, but it hasn't been specifically put. You made two statements, the second statement being on the 23rd of March of this year, is that so? Page 6 and 7. You've seen it?

MR MBANDAZAYO: Yes, Chairperson.

CHAIRPERSON: Now on page 7, in the second paragraph you say:

MR MBANGI: He gave it to the deceased, Mandu gave it to the deceased.

CHAIRPERSON: That is not what you say in your statement.

MR MBANGI: But what I know is that there was only one weapon and it was given to the deceased.

CHAIRPERSON: And it has been put to you that you did not take Mr Barnard's weapon and you have told us, and it also appears in your statement, that you didn't take any of the weapons or any of the loot from Mzawuabanthu Stokwe. Is that correct?

MR MBANGI: Yes, that is correct, Mzawuabanthu Stokwe was the one with the firearm.

CHAIRPERSON: Well what firearm did you use?

MR MBANGI: I was having a knife with me. I found the firearm in Mr Barnard's possession.

CHAIRPERSON: Where did you find it? In Mr Barnard's possession?

MR MBANGI: Mr Barnard fell down and his firearm also fell down and then I took it.

CHAIRPERSON: Thank you.

JUDGE MILLER: Just one very quick question. Was this your first operation as an APLA cadre?

MR MBANGI: Yes, it was my first operation.

JUDGE MILLER: Thank you.

CHAIRPERSON: Thank you.

CHAIRPERSON: Any further evidence?

MR MBANDAZAYO: None Chairperson.

CHAIRPERSON: Mr Frost?

MR FROST: Mr Chairperson, Members of the Panel, the victim's family opposes this application and the victim's son, Mr Petrus Frederick Barnard will testify to the opposition and also to certain factual issues pertaining to the evidence of the applicant. To gainsay such factual issues.

CHAIRPERSON: Well as I understand the applicant's concession that he does not oppose most of what was put to him because he doesn't really know who this person was that he called Mr Barnard's son, I trust it won't take us too long.

MR FROST: It won't take too long, Mr Chairperson.

CHAIRPERSON: Your full names please.

MR BARNARD: Petrus Frederick Barnard.

CHAIRPERSON: Do you have any objection to taking the oath?

PETRUS FREDERICK BARNARD: (sworn states)

EXAMINATION BY MR FROST: Mr Barnard, you're the son of the deceased, or one of the sons of the deceased, is that correct?

MR BARNARD: Yes.

MR FROST: Now on the 20th of November 1992, when the deceased was shot and killed, where did this take place?

MR BARNARD: It's on a farm just outside Uitenhage, at Rooihoogte.

MR FROST: Was it the deceased's farm?

MR BARNARD: No, it a friend of the deceased hired the farm from the man.

MR FROST: Can you tell us what the property looked like? Was it built up?

MR BARNARD: No, it was just wire kraals that were used to sell goats. There was one bush in the corner, at the corner of the border fence and the rest was just flat clean ground.

JUDGE MILLER: Sorry, Mr Barnard, the nearest house from those kraals, how far would you indicate such house to be?

MR BARNARD: It was the neighbour on the next door's farm, about 300 metres, with a gravel road in-between.

MR FROST: So there was an actual gravel road separating the kraals from where this neighbouring house is.

MR BARNARD: Ja, there's a boundary fence next to the road on the farm that my father was, and then there's another boundary fence on the other side of the road, that's the boundary fence of the fence of the next farm.

MR FROST: What business did your father - or if any, what business did he do on this property?

MR BARNARD: Every Friday morning at approximately 9 o'clock he will load the lorry with goats and sheep and then he will go up to the kraals there and sell it till say about 5 o'clock, then he will come back to the farm and the next morning round about six, then I would load the lorry up, my father will take the bakkie and then they will go up there and sell goats till 1 o'clock and then they will be coming back to the farm.

MR FROST: Can you tell us approximately how far was this place where your father sold goats, to his actual farm where he lived on?

MR BARNARD: It's round about seven kilometres away from the farm.

MR FROST: Now on the particular day in question, on the 20th of November 1992, did you at all visit your father at this premises where he was selling goats on that day?

MR BARNARD: Yes, I work at the Transnet ...(indistinct) and I left at quarter to four from my workplace and I went straight up to my father. We spoke and I drank some cool-drink with him and say about quarter past four to - round about quarter past four I left him, 'cause he was busy building a house for him and I have to take the builders back to town, and I left him that time.

MR FROST: Do you know whether your father was armed on that day?

MR BARNARD: Yes, he always a revolver, 38 revolver with him, but not on his person himself, he always stuck it away in the truck between the two front seats.

MR FROST: Now did you receive a report later that day that your father had been shot?

MR BARNARD: Yes. On my way to town when I was busy bringing the builders back to town, one of our bakkies came to me and stopped me and said my father was shot and I immediately just dropped the builders there at the spot and I went up to the kraals where my father was selling goats.

MR FROST: What did you find when you got there?

MR BARNARD: When I - there's a gate that you can drive into where the lorry was standing and I took that road, and as I approached the truck I just saw my father's feet sticking out of the door and I climbed out of the bakkie and went to him. He was lying in front of the truck.

MR FROST: Inside the truck?

MR BARNARD: Inside the truck on the front seat, and his revolver was lying on the floor next to the lorry's gear lever, on the floor.

MR FROST: So you confirm that he was not dispossessed of his firearm?

MR BARNARD: No.

MR FROST: Would it also be so that he got cash money for the goats that he would sell to persons while being there?

MR BARNARD: The only cash that he had on him was the money he kept to give the people change, a few notes and a few coins. The other money was put in a safe, like a - there was like a safe that you can throw your money through it and the key wasn't in the truck, it was left at the farmhouse.

JUDGE MILLER: So any money that he got from the selling of goats or sheep, was any of that taken? Did you determine at any stage?

MR BARNARD: No.

JUDGE MILLER: It was all in that safe.

MR BARNARD: The money was in the safe and the change that my father kept was in his pockets.

MR FROST: Now you also attended the trial ...(intervention)

JUDGE MILLER: Sorry, just before you leave the scene, Mr Frost, if I could ask a question.

Did you determine or did you learn that anybody else had been shot when you were at the scene?

MR BARNARD: No, nobody else was shot.

MR FROST: Were any firearms robbed from any person at the scene or taken from any person at the scene?

MR BARNARD: No, the only firearm that was on the scene was my father's 38 special and then the firearm that was used to shoot my father.

MR FROST: Did the killing of your father have any affect on your family life?

MR BARNARD: Yes, it affected my mother very much, 'cause she still battles to sleep properly and for a few years after my father's death, she couldn't sleep, she was always staying awake during the night and it took her, I don't know, a couple of years to get back to her sleeping pattern, and she still battles with the death of my father.

MR FROST: And I presume it affected you negatively as well.

MR BARNARD: Yes.

MR FROST: Do you formally oppose the application by the applicant?

MR BARNARD: Yes.

MR FROST: That is the evidence, Mr Chairman.

CHAIRPERSON: Cross-examination?

CROSS-EXAMINATION BY MR MBANDAZAYO: Yes, Chairperson, it's not cross-examination, it's just clarity.

Mr Barnard, let me first say to you that I'm sorry for what you went through during the time of your bereavement when you lost your father.

MR BARNARD: Thanks.

MR MBANDAZAYO: Now what I want to know is, where you indicated that your father was selling these goats, was there anything like a farm stall, like some makeshift house or building, which was around that area?

MR BARNARD: There was nothing, no building or structure near the kraals, it's just the truck, say five paces away from the kraal, where the people that buy the goats come and pay. That was all that was on that piece of land there.

MR MBANDAZAYO: Who was helping your father, was there any other person except your father, or were there some labourers?

MR BARNARD: There were, I think, if I can recall it correctly, I think there were three or four labourers at the kraals that day, plus the chap that's - the ground that we were selling from, that gentleman was there and his son was also there at the time of the shooting.

MR MBANDAZAYO: Will you be in a position to indicate what do they say? Are they the people maybe who returned fire after they had - or is there anything that they did? That is the other two gentlemen.

MR BARNARD: No-one that was there at that moment had a firearm except my father and the other gentleman that was also killed.

MR MBANDAZAYO: Now lastly, Mr Barnard, you have heard what the applicant is saying, that the reason why he went there was not to kill your father, but was to take money and arms and they were acting on behalf of the PAC, their organisation, as ordered by their Commander. What do you say to that?

MR BARNARD: If they wanted they arms and money, why didn't they just ask for it, why did they have to shoot my father?

MR MBANDAZAYO: As you heard, they thought that he was resisting, he tried to pull his gun and that's why they shot him.

MR BARNARD: Nobody tried to pull my father's gun away or had a gun. The driver's door was locked, my father was lying in the truck, nobody could get to the gun, except to climb into the lorry, and nobody did try to get into the lorry.

JUDGE MILLER: But I think what Mr Mbandazayo is saying is, maybe your father took out his gun when he saw this person with a gun, because you say the gun was found next to the gear lever and it normally wasn't kept there, it was kept between the seats. So how would the gun have got to be next to the gear lever, unless your father had taken it.

MR BARNARD: Maybe my father saw that he had a gun and took out his gun, we wouldn't know because I wasn't there at the specific time, but my father wasn't a violent man, so he didn't shoot somebody for nothing. So if the guy produces a gun, my father would presumably take out his gun and try to defend himself. That's the only thing.

CHAIRPERSON: Was the other person lying there dead when you arrived?

MR BARNARD: Ja, the one that shot my father was shot, he was lying, I think, about 20 - no, 15 paces away from the truck in the gravel road. He was lying there with his gun.

JUDGE MILLER: And the only conclusion is probably, although we know you weren't there, was that he was shot by your father.

MR BARNARD: Ja.

CHAIRPERSON: Did anyone examine your father's revolver and see if there was a fired cartridge in it?

MR BARNARD: I don't know if they examined his revolver, but his revolver was taken away for I don't know how long and it was in the police' possession, I think for over a year, so I presume they would have done tests on the revolver, Sir.

MR MBANDAZAYO: I'm indebted to the Committee, Chairperson.

My last question will be, are you opposed to the amnesty by the applicant because you feel that it was not politically motivated, or because he had not made a full disclosure of what actually took place?

MR BARNARD: I oppose it because he doesn't disclose the truth. Why didn't he mention the sixth person and why did he always - there's contradiction in his statements, so I oppose the application.

MR MBANDAZAYO: Thank you, Mr Barnard.

MR BARNARD: Thank you.

MS THABETHE: No questions, Mr Chair.

MR FROST: No re-examination, Mr Chairman.

CHAIRPERSON: Thank you. Was Mr Mostert senior present there that day?

MR BARNARD: Yes, Sir, he was standing next to my father, next to the truck by the door.

JUDGE MILLER: Is he the owner of that piece of ground?

MR BARNARD: He's not the owner, he hired it.

JUDGE MILLER: Oh, he was the Lessee.

MR BARNARD: Yes, Sir.

JUDGE MILLER: You say his son was also there.

MR BARNARD: Yes, Sir.

CHAIRPERSON: Thank you.

MR FROST: That is the evidence for the victim.

MS THABETHE: I have no questions, Mr Chair.

CHAIRPERSON: Not questions, are you going to lead any evidence?

MS THABETHE: No, I'm not going to lead any evidence.

CHAIRPERSON: Has anybody spoken to the Mosterts?

MS THABETHE: Sorry, Mr Chair? Has anyone spoken to the Mosterts?

CHAIRPERSON: Mosterts.

MS THABETHE: No, Mr Chair.

CHAIRPERSON: His evidence appears to conflict directly with that of the applicant, going by what the evidence that was set out in the judgment in the trial.

MS THABETHE: Mr Chair, we relied mainly on the evidence of the other co-perpetrators, as opposed to that of the applicant.

CHAIRPERSON: Very well, does that conclude all the evidence that we're to hear?

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: Argument?

MR MBANDAZAYO IN ARGUMENT: Thank you, Chairperson.

Chairperson, I'm not intending to bore you with my argument, trying to come up with solutions to questions that you might have. Mine is suffice to say to the Committee that we have placed enough evidence before the Committee, and the applicant has given evidence and also through cross-examination he has put forward the reason and why he was involved in the incident. And as such, Chairperson, I don't want to dilute his evidence. As I indicated that it's suffice to say that the Committee will be in a position to reach a fair and a just decision on this matter, on that evidence. Thank you, Chairperson.

CHAIRPERSON: You are happy that we should decide on the evidence of the applicant?

MR MBANDAZAYO: Yes, Chairperson.

CHAIRPERSON: Do you wish to say anything?

MR FROST IN ARGUMENT: Mr Chairperson, the position is the same, save to say that his evidence is riddled with contradictions considering his statements. It's my submission that he did not make a full and open and honest disclosure to this Panel, and neither is he supported anywhere for the fact that he did this with a political motive. Those are my submissions.

MS THABETHE IN ARGUMENT: Thank you, Mr Chair. My submissions are that it appears from the applicant that this was - even though the applicant says it was planned, but it appears that it was not properly planned and it looks like what appears to be an APLA unit, was actually not an APLA unit, because there were some members who did not belong to the APLA that allegedly were also involved in this operation.

Furthermore Mr Chair, it appears that the killing was - the act was committed purely for personal gain, of robbing the farmer as he was selling goats and it appears, or it's probable, supported by the statements of Mzawuabanthu Stokwe, who was also there on that day, and Mxdisi Mbotjwa, who was also present on that day, that the intention of going to Mr Barnard's farm was to buy goats and not to further the objectives of the

PAC, and my submission, Mr Chair, is that this amnesty application should be refused. Thank you.

CHAIRPERSON: We'll take time. We'll proceed now to the next matter.

MS THABETHE: Thank you, Mr Chair, as the Committee pleases.

CHAIRPERSON: Which is the next matter?

MS THABETHE: It's the application of E T Dlamini, Mr Chair.

JUDGE MOTATA: In what language is he going to testify, Mr Mbandazayo?

MR MBANDAZAYO: Xhosa, Chairperson.

ECTIM ZIWAWU DLAMINI: (sworn states)

CHAIRPERSON: Thank you. For the sake of the record, the Committee remains the same, the applicant's counsel is the same and the victims are represented by Ms Thabile Thabethe, and she also appears on behalf of the Amnesty Committee.

MS THABETHE: Correct, Mr Chair.

EXAMINATION BY MR MBANDAZAYO: Thank you, Chairperson.

Mr Dlamini, is it correct that you were born on the 20th of September 1960, in Port Elizabeth?

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Is it also correct that you became involved in politics in 1983?

MR DLAMINI: That is correct, Sir.

MR MBANDAZAYO: And you were involved in Azanyo.

MR DLAMINI: That is correct.

MR MBANDAZAYO: Which was the youth wing of the PAC.

MR DLAMINI: That is correct.

MR MBANDAZAYO: Now Mr Dlamini, is it correct that before you were convicted of this offence, it as not your first time to go to prison?

MR DLAMINI: That is correct.

MR MBANDAZAYO: Can you tell the Committee about your other incidents.

MR DLAMINI: During the 1986 violence we were arrested because we were fund raising to send the youth to the exile. I got arrested in 1986. I was arrested for armed robbery because we were fund raising to send the youth to the exile.

MR MBANDAZAYO: Yes, what was the other incident?

MR DLAMINI: The one that you are talking about now?

MR MBANDAZAYO: Was the only incident in which you were convicted of before this one?

MR DLAMINI: Yes, that is the only incident that I was involved in.

MR MBANDAZAYO: Now Mr Dlamini ...(intervention)

CHAIRPERSON: Sorry, was that a political incident? You said you were raising money to send youth to exile.

MR DLAMINI: Yes, it was politically motivated, Sir.

CHAIRPERSON: On behalf of who? What political party?

MR DLAMINI: We were students and it was during the times of violence and we wanted to send the students to the exile.

CHAIRPERSON: Carry on.

MR MBANDAZAYO: Now can you then tell the Committee, how long did you stay in prison?

MR DLAMINI: About three years and eight months, or ten months.

MR MBANDAZAYO: Now when did you join APLA?

MR DLAMINI: I joined APLA in 1991.

MR MBANDAZAYO: Under whom did you join APLA?

MR DLAMINI: Under Bonekele Filita.

MR MBANDAZAYO: Did you undergo any military training?

MR DLAMINI: Yes.

MR MBANDAZAYO: Where?

MR DLAMINI: In the Transkei. The name of the place was eTafalofefe.

MR MBANDAZAYO: From when until when?

MR DLAMINI: It was about two months. It was called a crash course.

MR MBANDAZAYO: Now which year was that?

MR DLAMINI: In 1991.

MR MBANDAZAYO: Am I correct to say that it was the same year in which you were released from prison?

MR DLAMINI: That is correct, Sir, that is true.

MR MBANDAZAYO: And you were released, if I'm correct, on the 4th of July 1991.

MR DLAMINI: That is correct.

MR MBANDAZAYO: How long after you release did you meet Mr Filita?

MR DLAMINI: I met Mr Filita a day after my release.

MR MBANDAZAYO: And according to you, you immediately went to Transkei.

MR DLAMINI: Yes.

MR MBANDAZAYO: And after how long did you come back?

MR DLAMINI: After two months.

MR MBANDAZAYO: Now can you come now to this incident.

MR DLAMINI:

MR MBANDAZAYO: Now were these people you were involved with, members of your unit?

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Who was the Commander of this unit of yours?

MR DLAMINI: It was myself.

MR MBANDAZAYO: How long have you been a unit? How long had you been together as a unit before you executed this mission?

MR DLAMINI: After coming back from Transkei, I became the member of that Unit, Repossession Unit.

MR MBANDAZAYO: Was the unit already existing?

MR DLAMINI: Yes, Sir.

MR MBANDAZAYO: Did they themselves, the other members of the unit, had they been involved in any other operation except this one?

MR DLAMINI: I am not aware of the other operations that they were previously involved in, but this was the operation that I was with them.

MR MBANDAZAYO: What happened to them after the incident? I understand you were eventually arrested, what happened to the other members of the unit?

MR DLAMINI: When I as in prison in 1992, I heard that Mzimeni Pale and Tando Kondlo, Mbvuyise Mpande were shot at in Rocklands on the 11th of February. There was a shooting between them and the police. Mzingati Pagela was shot on the 9th of June 1995, then he died in Victoria Hospital in Alice. And with Mandla, I heard that he passed away during a shooting between himself and the police.

MR MBANDAZAYO: So all you are telling the Committee is that all the members of your unit, including the Regional Commander, passed away.

MR DLAMINI: Yes, Sir, that is correct.

MR MBANDAZAYO: You are the only one who is still alive.

MR DLAMINI: Yes.

JUDGE MILLER: Sorry, Mr Mbandazayo, if I could just ask one question at this stage, before you move on.

You said that this unit was in existence before you joined it, you've also told us that when you came out of prison you were almost immediately sent to Transkei for a crash course, which lasted two months and then you came back. Why were you appointed the Commander of the unit, when you had no operational experience as such, when the other people were already members of it? How did it come about that you were the Commander and not one of the other members?

MR DLAMINI: It is because of the skills that were identified from me during the training.

JUDGE MILLER: Yes, Mr Mbandazayo?

MR MBANDAZAYO: Thank you, Chair.

Now after the operation itself, what did you do with the money and the weapons?

MR DLAMINI: I gave the money to the Regional Commander, Mandla, and the firearms. If you are a combatant, after being given some - after taking something from the enemy, you have to take it straight to your officer.

MR MBANDAZAYO: Now how long after the incident were you arrested?

MR DLAMINI: I was arrested on the 13th of December 1991.

MR MBANDAZAYO: And the other members were never arrested.

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Now I understand you went to court and you were charged and convicted of this offence.

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Did you mention in court that you were a member of APLA?

MR DLAMINI: No, that was never mentioned.

MR MBANDAZAYO: And that you were doing it for the benefit of your organisation?

MR DLAMINI: I never mentioned that too.

MR MBANDAZAYO: Why didn't you mention it?

MR DLAMINI: Solely because we didn't have any respect for that government, the old government, because it was a government of boers and we did not recognise that government because we regarded them as illegitimate.

MR MBANDAZAYO: Before I make a follow-up to that answer, let me ask you this question, do you know who was heading the Repossession Unit within APLA?

MR DLAMINI: It was Tabelo Patrick Maseko. His combat name was Njebe.

MR MBANDAZAYO: Now did you know him personally?

MR DLAMINI: I once saw him.

MR MBANDAZAYO: Now you know him that he was also arrested, eventually arrested.

MR DLAMINI: Yes, I met him in prison.

MR MBANDAZAYO: Now the reason why I'm asking that question is because when - during that same period when he was arrested, he immediately told the police that he's a member of APLA and all what he was doing he was doing it on behalf of APLA. Of the PAC. And it was almost the same period in which you were also arrested.

MR DLAMINI: Please repeat your question, Sir.

MR MBANDAZAYO: The reason why I'm asking you the question, why didn't you mention that you were a member of APLA and you were doing it on behalf of PAC, it's because Tapelo Maseko, as you correctly put him, was the head of the Repossession Unit and he was arrested around the same period and immediately when he was arrested he told the police and the Court that he's a member of APLA and all what he was doing he was doing it on behalf of APLA and for the benefit of the PAC. Now my question is, why was it difficult for yourself to tell the police and the Court that look, what I was doing, I did not do it for personal gain, I was doing it on behalf of my organisation? So that should be taken into account.

MR DLAMINI: It is because we were not told to give information to the enemy, therefore I was following that rule, that I was not allowed to give anything, even if it's information to the enemy.

MR MBANDAZAYO: Now you heard in court that somebody died as a result of your action, am I correct? You mention it, Mr Nicol(?).

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Now what do you say now to the victims about the incident, that they lost somebody who was a breadwinner within the family because of your actions?

MR DLAMINI: I sympathise with the family, but I was just following the orders.

MR MBANDAZAYO: Now just before I finish, in your application form you mention a name of the person who gave you an order as Zakes Mbambatha and now you are telling the Commission about Mandla.

MR DLAMINI: The name that was familiar to me was Mandla, the pseudo name. I didn't know his real name and I was not allowed to ask the person's name as a soldier, because there were so many problems, people would be turned into askaris. I knew him with his pseudo name that was Mandla.

JUDGE MILLER: Sorry, are you saying Mr Dlamini, that Zakes Mbambatha are the same person?

MR DLAMINI: The only name that I knew was Mandla.

JUDGE MILLER: Yes, but when you filled in this form, did you know that Mandla was Zakes Mbambatha?

MR DLAMINI: I am saying I cannot dispute that his real name was Zakes Mbambatha. I didn't ask his name. The only thing that I knew was his pseudo name.

JUDGE MILLER: But this is your form, this is your application form which you signed and you say that you got the order from Zakes Mbambatha.

MR DLAMINI: Yes, this is one person.

CHAIRPERSON: Who is he?

MR DLAMINI: Zakes Mbambatha.

JUDGE MILLER: So how did you put Zakes Mbambatha when filling in this form, if you didn't know that Mandla was Zakes Mbambatha at that time? When did you learn for the first time that Mandla is in fact Zakes Mbambatha?

MR DLAMINI: I learnt that after some time, after this - after I had mentioned this name here.

JUDGE MILLER: I can't understand how you can put a name in your application form when you don't know who the person is. You're saying when you filled in your application form in December 1996, you didn't know who Zakes Mbambatha was?

MR DLAMINI: The only name that I knew was Mandla.

JUDGE MILLER: Perhaps if Mr Mbandazayo could try to clear this up, because I'm confused. He says on the one hand, that the only name he knows was Mandla, but yet here he says his real name is Zakes Mbambatha.

MR MBANDAZAYO: Through you, Chairperson, that's what I was trying to solicit, as to what actually is Zakes Mbambatha.

JUDGE MILLER: Yes, I think if you can carry on, just find out.

MR MBANDAZAYO: Because he mentioned Mandla now, what I was asking, but in his application form he also mentioned the name of Zakes Mbambatha, who also is not his real name. If I read it correctly.

JUDGE MILLER: Perhaps if you could just clear up this confusion between Mandla and Zakes.

MR DLAMINI: Those were the names that were used, referring to him.

CHAIRPERSON: Who used these names? Who used the names Zakes Mbambatha?

MR DLAMINI: The soldiers.

CHAIRPERSON: Who were they talking about?

MR DLAMINI: They were talking about Mandla.

CHAIRPERSON: So you now say that other people talking about the person you knew as Mandla, called him Zakes Mbambatha.

MR DLAMINI: Yes, Sir, that is correct.

JUDGE MILLER: Mr Mbandazayo.

MR MBANDAZAYO: Thank you, Chairperson, that's all I have for now. Thank you.

JUDGE MOTATA: Before you step off, Mr Mbandazayo, I think in the further particulars somewhere - I'm trying to find it, I read he's applying for car theft. When he was requested for further particulars, or am I making a mistake? I'm trying to find it, but I cannot at the moment.

MR MBANDAZAYO: Well Chairperson, I've read the further particulars, but I was guided by the application form. In the application form there's nothing which - it refers to an armed robbery only.

MS THABETHE: Page 12 of the bundle.

MR DLAMINI: If I'm not mistaken, correspondence that I received before, I was asked to specify about the incident that I was applying for and I explained that and I told them that it was car theft, murder and robbery. Because even when I was sentenced, I was sentenced for three offences.

JUDGE MILLER: Page 12, Mr Mbandazayo, paragraph 1, the second paragraph 1. There are two paragraphs marked one, this is the second one.

MR MBANDAZAYO: Thank you, Chair.

So the car theft you are referring to here is the car which was used in the -when you committed the robbery?

MR DLAMINI: Yes.

JUDGE MILLER: So who stole that car, Mr Dlamini?

MR DLAMINI: I am the person who issued the order to Mzimeni to arrange for the car.

JUDGE MILLER: Sorry, I just want his name, if you can repeat his name please. You told us that you issued an instruction for him to arrange transport, now who was this person who stole it, what was his name? Just mention it again.

MR DLAMINI: Mzimeni Pale.

MR MBANDAZAYO: Chairperson, at page 9 ...

JUDGE MILLER: Yes, I've got it.

CHAIRPERSON: Also on page 6 in his original application he says he is asking for amnesty on a charge of theft. "Armed robbery, murder and theft". And he explains at the other page, page 12 is it, that the theft that he means is car theft.

JUDGE MILLER: And you weren't present when the car was stolen, or were you?

MR DLAMINI: I was not present.

CHAIRPERSON: Didn't you steal it?

JUDGE MILLER: No, he said Pale did, Mzimeni Pale.

CHAIRPERSON: Page 12, is that your reply to questions? Is that your reply on page 12?

MR DLAMINI: Yes, Sir.

CHAIRPERSON: 'Cause question 2:

and your answer is:

MR DLAMINI: As a person who had issued the order to Mzimeni to steal the car, I had taken the sole responsibility because I was the Commander of the unit. That is why I am taking full responsibility for stealing the car.

CHAIRPERSON: Right.

MR MBANDAZAYO: Now finally, Mr Dlamini, the second offence you are talking about, that is this one you have been convicted of, there's also the first one. Why didn't you apply for amnesty for the first one? The one you committed in - you were released in 1991, July.

MR DLAMINI: Please repeat the question.

MR MBANDAZAYO: Why didn't you apply for amnesty in that offence for which you were released in 1991?

MR DLAMINI: It is because I have already served the sentence and I decided that it was not necessary for me to ask for amnesty.

MR MBANDAZAYO: But is it your evidence that both instances were politically motivated?

MR DLAMINI: Yes, that is correct.

MR MBANDAZAYO: Is it also your evidence that the offence for which you are applying for amnesty you did not personally gain anything, you handed everything to your Commander, Mandla?

MR DLAMINI: Yes, that is correct, Sir.

MR MBANDAZAYO: Is there any other thing you would like to add to your evidence, which you think that you have left out?

MR DLAMINI: No, there's nothing else, Sir.

MR MBANDAZAYO: That's the evidence of the applicant, Chairperson. Thank you.

MS THABETHE: Mr Chair, may I please ask for a very short adjournment?

CHAIRPERSON: Very well. We'll take a very short adjournment.

ECTIM ZIWAWU DLAMINI: (s.u.o.)

CROSS-EXAMINATION BY MS THABETHE: Thank you, Mr Chair, I'm indebted to you.

Mr Dlamini, can you tell us what instructions were given to you? What were the exact instructions given to you with regard to this robbery?

MR DLAMINI: I was told to go there and repossess money. I was told to go and repossess.

MS THABETHE: And of course you say you did a reconnaissance, what did you observe during this reconnaissance?

MR DLAMINI: I saw how they transported their money from the bank and all the process of the company as a whole.

CHAIRPERSON: How often did they transport money from the bank?

MR DLAMINI: I went there on a Friday, the 28th, so I don't know about other days. I just went there on Friday and I also observed what was happening in that area as a whole.

MS THABETHE: Maybe I misunderstood you, Mr Dlamini, didn't you say earlier on that you did the reconnaissance for a month?

JUDGE MILLER: I don't think he said a month, but he said he went back - I was under the impression Mr Dlamini, that you didn't only go there once, when you were giving your evidence earlier.

MR DLAMINI: I said that I made a reconnaissance from the 24th. I went there to observe the process of that company and the whole building as a whole, and then the following day I went there again to reconnoitre that whole area, and then again on a Friday I observed Mr van Niekerk, when he was coming with the money from the bank.

JUDGE MILLER: Yes, because my note is: "On the 24th of September I went to the company to inspect the processes. Went again the next day and did so until the 28th of September."

That is what my note is.

CHAIRPERSON: Mine is the same.

JUDGE MILLER: So my impression was that you went there from the 24th every day until the 28th.

MS THABETHE: Then let me rephrase the question. Would I be correct if I say you did the reconnaissance then for five days?

MR DLAMINI: I reconnoitred the place for that whole week. I've also mentioned that in my statement, that I've reconnoitred that place for the whole week.

JUDGE MILLER: Well what Judge Wilson was asking you then was, how many times did you see money being transported during your reconnaissance?

MR DLAMINI: I saw that on Friday, on the 28th.

JUDGE MILLER: Sorry, just before you proceed, just for my own benefit, Mr Dlamini. What sort of premises were these? Was it a house or was it a factory? Was it in the industrial area or was it out in the countryside, what is the situation? Because I don't know it at all.

MR DLAMINI: This company, it is a company that is in Korsten, amongst other factories, so it's within the industrial area of Korsten.

CHAIRPERSON: Also to help on this, would they be the sort of company that would employ labourers, who would be paid on a weekly basis?

MR DLAMINI: That is so, according to my reconnaissance.

MS THABETHE: And you say on this Friday you saw Mr van Niekerk coming back from the bank.

MR DLAMINI: That is correct.

MS THABETHE: And then when you went back now to execute the mission, how did you intend getting the money from Exmico or from the messenger, the person who had gone to the bank?

MR DLAMINI: I was going to point a firearm at this person and then tell this person to give me the money.

MS THABETHE: And is it correct that that's what you did?

MR DLAMINI: Yes, that is so.

MS THABETHE: You pointed the firearm at him, you asked him to give you the money, correct?

MR DLAMINI: I pointed him with the firearm, I told him to put the suitcase down, to lift up - to put his hands at the back of his head and then he didn't obey my order, and then I observed that he was going to his waist, trying to draw a firearm, that is when I shot at him two times.

MS THABETHE: Now I'm a bit confused here, you point him with a firearm, you tell him it's an armed robbery and according to my instructions and also your evidence, he throws the suitcase at you, correct?

MR DLAMINI: That is correct.

CHAIRPERSON: Didn't you say "he tried to hit me with the suitcase"?

MS THABETHE: Well Mr Chair, my instructions are ...(intervention)

MR DLAMINI: He hit me with the suitcase and he was reluctant to my orders, he didn't obey my orders. I ducked the suitcase with ...(intervention)

MS THABETHE: Well my instructions are that he didn't hit you with the suitcase, he was acting - just hang on until I finish.

JUDGE MILLER: Just repeat your question.

MS THABETHE: Yes. My instructions are that he didn't hit you with the suitcase, he was responding to your order that he must give you the suitcase full of money.

MR DLAMINI: As the person who was there, he hit me with the suitcase, because he didn't want to obey the orders that I was giving him. He was reluctant to obey the orders. As a person who was there, who was present at the scene and I was the one involved in the operation.

JUDGE MILLER: You talk about a suitcase, how big was it, could you just give an indication with your hands?

MR DLAMINI: ...(no English interpretation)

JUDGE MILLER: So it's more of a briefcase?

MR DLAMINI: ...(no English interpretation)

JUDGE MILLER: Ja, but it's not a big suitcase that you go on a journey with, it's a ...

MR DLAMINI: No, it was a small suitcase to put a lunch box in, it's like a lunch box suitcase. There are different suitcases. It is the one that looks like a lunch box suitcase.

JUDGE MILLER: I think what the applicant is describing is the type of suitcase a child at primary school will have, the one that you have to put on its bottom and then you open it upwards, lift the lid upward. A small briefcase size case.

MS THABETHE: Isn't it correct, Mr Dlamini, that this suitcase is the suitcase that was full of money that you were demanding, or that you were robbing from him?

MR DLAMINI: Can you please repeat your question.

MS THABETHE: Isn't it correct that the suitcase we are talking about was full of the money that you were demanding, or that you were robbing from him, from Mr van Niekerk?

MR DLAMINI: ...(no English interpretation)

MS THABETHE: Isn't is correct?

MR DLAMINI: Yes, it was full of money, the suitcase that he was hitting me with, that Mzimeni took. It had money.

MS THABETHE: I want to put it to you, Mr Dlamini, that the probabilities are that he wasn't hitting you with the suitcase, but he was giving you the suitcase full of money because you had announced that you were conducting a robbery, so he was responding to your orders to give you the money. What is your response to that?

MR DLAMINI: What I'm saying is he was not giving me the suitcase, he was hitting me with the suitcase, trying to disturb my attention. To show that he was not giving me the suitcase he was reaching for his firearm, that is when I shot at him. That's why I'm saying that he was not obeying my orders.

MS THABETHE: Now one of these acts of throwing the suitcase or pulling the gun, one of them happened first, what occurred first? Did he throw the suitcase first, then pull out his gun, or what happened exactly?

MR DLAMINI: What he did first, he hit me with the suitcase, that's what he did first, and then he was reaching for his firearm in his waist. That is when I shot at him, when he was trying to take out his firearm.

MR DLAMINI: Sorry. Mr Dlamini, when you say he hit you with the suitcase, whereabout did he hit you? Which part of the body?

MR DLAMINI: He was trying to hit me on the face, but I ducked.

JUDGE MILLER: And it's not a question of that he threw the case at you, did he keep possession of the case? Did he hold it while he tried to hit you, or did he throw it?

MR DLAMINI: He was throwing it, trying to hit me on the fact as I was facing him.

JUDGE MILLER: And did you see a firearm at all in his possession?

MR DLAMINI: He had a firearm on his waist, as a person who was responsible for the money.

JUDGE MILLER: Yes, Ms Thabethe.

CHAIRPERSON: When he threw the suitcase at you and you ducked, did it go over your back and land somewhere behind you?

MR DLAMINI: Yes, it went behind me and then I was facing him and I was watching his action.

MS THABETHE: I just want to find out from you, Mr Dlamini, if you conduct a robbery of a person who is carrying a suitcase full of money and you say to that person "This is an armed robbery", right, and the person throws the suitcase at you - because on page 2 of your application you actually said:

my question is, when you are conducting a robbery and you are robbing a person of his money and he throws that briefcase full of money to you, why didn't you take that briefcase and go, because that's what your intention was? Why did you shoot him?

MR DLAMINI: As a soldier a person can try to disturb you in what you are doing, so that when you turn away that person can take a firearm and shoot at you, so I was facing him and I was watching his action. I was watching what he would do after he threw that suitcase.

MS THABETHE: My instructions, Mr Dlamini, are that the deceased did not have a firearm that day, that his firearm was kept at home, at his home on that day. What is your response to that?

MR DLAMINI: What I'm saying is that according to the reconnaissance that I made he had a firearm and even the day that I shot him he had a firearm with him.

JUDGE MILLER: Sorry. Mr Dlamini, did you - just to get back to my previous question, did you actually see the firearm, or did you believe he had a firearm because of his movements? There's a difference.

MR DLAMINI: If I still remember well, Mr van Niekerk was wearing a white shirt, if I still remember well, the firearm was in his waist, so I could see the firearm because he was not wearing a jacket or a jersey on top of his shirt.

MS THABETHE: My instructions - unfortunately we couldn't get the whole court record, but my instructions are that in court evidence was led to the effect that Mr van Niekerk did not carry a firearm. What is your response to that?

MR DLAMINI: What I'm saying, according to my reconnaissance and according to what I saw that day, he had a firearm with him.

MS THABETHE: Do you remember in court where evidence was led that he did not have a firearm? Do you remember that or don't you?

MR DLAMINI: In court that evidence was not led that he had a firearm or not. I was there in court, that evidence was not presented in court. I can still remember most of the things that were argued there.

MS THABETHE: Well I will call a witness who is going to testify that in court this was said.

CHAIRPERSON: Look at page 23 - sorry, no, no.

JUDGE MILLER: Mr Dlamini, when this incident occurred, when you took the money, were there other people around besides members of your unit? Were there other people in the premises of Exmico Engineering, or was Mr van Niekerk alone there at the time? When I say were other people present, could you see any other people there?

MR DLAMINI: I saw the security guard and a coloured person who came to Mr van Niekerk, and others that were in front of the gate.

MS THABETHE: Mr Dlamini, further, I'm going to call a witness who is going to testify that Mr van Niekerk did not carry a firearm every day, he would carry a firearm if he had to go and fetch money from the bank, but on that day it was not his turn to go and fetch money from the bank, so he did not have his firearm with him, but he had left it at home. Would you like to comment on that?

JUDGE MILLER: Sorry, before Mr Dlamini comments on that. Are you saying that Mr van Niekerk didn't go to the bank on that day?

MS THABETHE: No, I'm saying they took turns.

JUDGE MILLER: Yes. And he didn't go that day?

MS THABETHE: He did go that day, but it wasn't his turn to go, he was just sort of high-jacked to go.

JUDGE MILLER: He was asked at the last minute to go.

MS THABETHE: At the last minute, yes.

JUDGE MILLER: But it would seem from what you've put, that the practice was, whoever went to fetch the money had a gun.

MS THABETHE: Yes.

JUDGE MILLER: So now it's not my turn to go today, but X's turn and he comes to me and says "Look, I can't go, will you go?" And I say "Yes, but give me your gun." Wouldn't that be the normal thing to do?

MS THABETHE: Those are not my instructions, Mr Chair.

JUDGE MILLER: Okay, so they say he went without a gun.

MS THABETHE: Yes, Mr Chair.

JUDGE MILLER: Just put it again to Mr Dlamini.

MS THABETHE: Do you want to comment Mr Dlamini?

MR DLAMINI: What I'm saying is, he had a firearm. It is very difficult for a person to go and fetch money and not have a firearm with him. A person who is used to doing that job. Because during my reconnaissance I saw on the 28th that he had a firearm with him and then again I saw him on the day of the incident, that he had a firearm.

MS THABETHE: On page 11 of your application, number 6, on:

you mention Mike Xlashimba Vuyimiza and Lesley Vuka Pikoli. How do they know of your activities?

MR DLAMINI: They know as the leadership. As I was asked whether they know, so my reply is that they are aware of each and everything that was happening.

MS THABETHE: I have a statement, Mr Chair, which I would like to hand in as Exhibit A, from Lesley Vuka Pikoli. I've given copies to my learned colleague, and I would like to refer to that statement, Mr Chair.

Mr Dlamini, in Mr Pikoli's statement he bears no knowledge of the operation in which his name is mentioned, and he says he doesn't even know who you are. What is your comment to that?

MR DLAMINI: He knows me.

MS THABETHE: Do you know why when he's in the leadership, he would say he doesn't know you whereas he actually knows you?

MR DLAMINI: Because there's these differences in the PAC now, maybe he is on Makwetu's side, so if I mention his name, maybe he's trying to deny. There are two sides amongst the PAC. As we all know, there are those that follow Makwetu and there are those that follow Magoba, so maybe he is on Makwetu's side, so that is why maybe he's denying this.

MS THABETHE: But weren't you acting on behalf of the organisation? Wouldn't he know that?

MR DLAMINI: Yes, I was acting on behalf of the organisation. He is not the only person that I mentioned and he is not the only person that knows about this. There are three of them, they know about this incident.

JUDGE MILLER: Sorry, Mr Dlamini, how do you know that Mr Pikoli knows of this incident? Did you speak to him personally, or do you just assume that he knew of it?

MR DLAMINI: When such an incident happened, a report would be given to the organisation.

JUDGE MILLER: So would you have reported to Mandla?

MR DLAMINI: Yes, I reported to Mandla.

JUDGE MILLER: He was the only person you reported to about this robbery?

MR DLAMINI: Yes, as he was the person who gave me the order.

JUDGE MILLER: And then he should have reported up the line, but you don't know personally who he reported to?

MR DLAMINI: I reported to the person who gave me the command, so he would report to those who was higher in position.

JUDGE MILLER: So you can't say yourself personally, that Mr Pikoli was ever informed of this operation? He should have been informed, but he might not have been.

MR DLAMINI: Yes, that is correct.

CHAIRPERSON: When were you arrested?

MR DLAMINI: 13 December 1991.

CHAIRPERSON: And this happened on the 24th ...

MR DLAMINI: 24th October.

CHAIRPERSON: Well did anybody higher up in the organisation congratulate you or thank you during the month of November and the beginning of December, for having obtained this large sum of money for the PAC?

MR DLAMINI: It was my Commander, the one that I reported to, he's the one who congratulated me.

CHAIRPERSON: Yes, but you're now assuming that he reported back and that it goes up the tree and they all get told, but you didn't get any reaction from anyone.

MR DLAMINI: It was only my Commander who congratulated me.

MS THABETHE: Can I proceed, Mr Chair? Thank you.

On page 15 of the bundle there are previous convictions in 1987, and you've indicated that these were political. On behalf of which organisation were you acting then?

MR DLAMINI: In 1987 I was already arrested, I was arrested on the 12th in 1986. So I was already sentenced in 1987.

MS THABETHE: Okay. It's written here that you were actually sentenced on the 5th of November 1987, so what I'm asking you is that - you have indicated earlier on that you were acting on political objectives, what I want to find out is, on behalf of which organisation were you acting then.

MR DLAMINI: I was a member of Azanyo, under the PAC. Azanyo was a student organisation. Because the situation was violent at the time, so we were fund raising in order to send people outside, because we didn't have money.

MS THABETHE: Didn't you say earlier on you joined the PAC in 1991?

JUDGE MILLER: Yes, he said that he was a member of Azanyo from 1983, I think it was, and then when he came out of prison he joined PAC ...(intervention)

MR DLAMINI: APLA.

JUDGE MILLER: ... APLA, at least, in August 1991, or whatever it was.

MS THABETHE: I'm indebted to you, Mr Chair, thank you. Mr Chair, if you would bear with me, I just want to make sure that I've covered all the ground.

Mr Dlamini, one more question. Do you know a person by the name of Mava?

MR DLAMINI: Sorry?

MS THABETHE: Do you know a person by the name of Mava?

JUDGE MILLER: Is that M-a-v-a?

MS THABETHE: Yes, M-a-v-a.

MR DLAMINI: Yes.

MS THABETHE: Who was he? Was he involved in your operation?

MR DLAMINI: Mava was not involved, I mentioned him because of the pressure from the police. I didn't want to reveal that this operation was an APLA operation, so I mentioned his name because the police were torturing me. They were pressuring me at the time, so I just mentioned his name. I know him, he stays in my neighbourhood.

MS THABETHE: So what did you - did you say he committed the offence, is that it?

MR DLAMINI: I said that he was one of the people that were with me during this incident, because I was tortured by the police. I didn't want to reveal the truth that the operation was politically motivated, so I just mentioned a person who was not aware of the operation.

MS THABETHE: Out of all the people in your unit and out of all the people you knew in the APLA, why did you choose him specifically?

MR DLAMINI: I couldn't mention the operations that were done by the organisation, because I was told that the soldier is not supposed to give out any information to the enemy, so I mentioned a person who was not even involved in APLA, who was not aware of this incident. I didn't want to mention a person who knew about this because I didn't want the police to know that it was politically motivated.

MS THABETHE: And of course, Mr Dlamini, we are talking here of 1993, that you did not feel free to talk about your organisation, is that correct?

MR DLAMINI: Sorry?

MS THABETHE: This was in 1993, when your organisation was actually unbanned. When you were not free to talk about it.

MR DLAMINI: Let me correct you. Even your bundle or the statements there tell you when I was arrested, so I don't understand now which 1993 are you referring to.

JUDGE MILLER: The arrest was in 1991, December and on page 23 the date of sentence was on November 1992.

MS THABETHE: Sorry, Mr Chair, I mixed up cases, I'm sorry. I'm indebted to you, thank you.

JUDGE MILLER: Sorry, the date of the arrest is 13 December 1991. That's page 17. Date of sentence 19th November 1992.

MS THABETHE: Thank you, Mr Chair, I have no further questions.

Sorry, Mr Chair, can I follow it up please?

You were arrested in 1991, and the organisations were banned in 1990, still at that time ...(intervention)

JUDGE MOTATA: Unbanned.

MS THABETHE: Unbanned, sorry yes.

JUDGE MILLER: But Ms Thabethe, we know that, we know for a fact when they were unbanned, but we also know that the conflict was waged, there was still violence, political violence until a much later date, particularly by the APLA and PAC, which came to end - I'm sure Mr Mbandazayo will correct me, but it was during January 1994.

MR MBANDAZAYO: 1994.

MS THABETHE: Thank you, Mr Chair. Even though I wanted to put it to ...(intervention)

JUDGE MILLER: Yes, no you can put it, but I'm just saying we know - we don't have to get the evidence from this witness as to when organisations were unbanned etcetera, it's a question of record.

MS THABETHE: Even though I want to put it to you, Mr Dlamini, that on the question that was led earlier on about APLA activists who were arrested almost at the same time as you, they came forward and they did mention the fact that they were acting on behalf of APLA, you did not feel free to say the same. Is that correct?

CHAIRPERSON: Is it fair to say that? Some APLA activists may have, but from our experience here, and I'm sure from yours, the vast majority were still denying any political motives.

MS THABETHE: Indeed, Mr Chair, but I would like him to explain personally why he denied when other people were coming forward.

MR DLAMINI: Because the APLA had not uplifted the armed struggle, so I was forced not to tell about what I did, because I was a soldier and I was following the orders of the fifteen points of attention not to surrender any information to the enemy.

MS THABETHE: Thank you, Mr Chair, I have no further questions.

MR MBANDAZAYO: No re-examination, Mr Chairperson.

CHAIRPERSON: Thank you.

MR MBANDAZAYO: That's the evidence of the applicant, Chairperson.

MS THABETHE: Thank you, Mr Chair. I would like to call Peter Hart.

JUDGE MILLER: Could you spell the name please.

MS THABETHE: Peter H-a-r-t.

JUDGE MILLER: Peter, with or without an "e".

MS THABETHE: P-e-t-e-r.

CHAIRPERSON: Do you have any objection to taking the oath?

MR HART: No.

CHAIRPERSON: What are your full names?

PETER LAWRENCE HART: (sworn states)

EXAMINATION BY MS THABETHE: Mr Hart, can you tell the Committee Members how you are related to Mr van Niekerk, the deceased?

MR HART: I'm married to his daughter since 1990.

MS THABETHE: Did you know Mr van Niekerk very well?

MR HART: Yes, I did.

MS THABETHE: On the day in question you were not present, isn't it correct? When he was shot.

MR HART: No, I wasn't present.

MS THABETHE: You have heard the applicant giving evidence today.

MR HART: Yes.

MS THABETHE: To the effect that Mr van Niekerk was shot because he tried to pull a firearm.

MR HART: Yes.

MS THABETHE: What is your comment on that?

MR HART: It was not Mr van Niekerk's turn on that fateful Friday, to go to the bank to draw wages. When he was at worked he was asked. The person who was supposed to go and draw money was not at work, with the result that he was asked by management to go and draw the wages. They took it in turn and also at irregular times, and the wages were only drawn, either on a Thursday or a Friday. Mr van Niekerk's firearm was locked up at his house in a safe on that particular day.

MS THABETHE: And how do you know this? Do you have personal knowledge of this?

MR HART: This all came out in evidence in the court. I was at all the court hearings when the trial proceeded. He went to the bank with a lady from the office. He was not alone in the vehicle on the return to Exmico, and the lady climbed out the vehicle at the same time when Mr van Niekerk climbed out, and Mr van Niekerk was the one that took the suitcase off the seat and the rest happened.

MS THABETHE: You have heard the applicant giving evidence that he was acting on behalf of APLA, and he was acting on instructions of his Commander, and he's applying for amnesty. What is your response to that?

MR HART: Well after going through all the court procedures of the day, and looking at the application here and hearing what has been said so far, there has been quite a lot of contradictory statements made.

MS THABETHE: Thank you, Mr Chair, I have no further questions.

CROSS-EXAMINATION BY MR MBANDAZAYO: Mr Hart, just a few questions.

Am I correct that you never worked at the company where Mr van Niekerk was working?

MR HART: No, I didn't.

MR MBANDAZAYO: And what you are telling the Commission today, is what you heard from court, that it was not his turn to go to the bank.

MR HART: Yes, that wasn't just in the court, it was at home as well. I knew Mr van Niekerk very, very well and - I mean, I was there at the house virtually all the time basically.

MR MBANDAZAYO: Were you present when he went to work on the day, on this day in question?

MR HART: Just repeat.

MR MBANDAZAYO: When he went to work on the day in question, were you present?

JUDGE MILLER: Were you at Mr van Niekerk's home when Mr van Niekerk left for work that day?

MR HART: No, I wasn't, I was at my work.

MR MBANDAZAYO: Now how do you know that he was not carrying his firearm?

MR HART: Because it was locked in his safe at home. Everybody in the family knows that he never carried that firearm unless it was his turn to go to the bank, and this was something that they emphasised quite a bit. The fact is that he didn't even know he was going to land up going to the bank that day, because of the person whose turn it was ...(intervention)

CHAIRPERSON: Well did you speak to him that morning?

MR HART: To Mr van Niekerk?

CHAIRPERSON: Yes.

MR HART: No.

CHAIRPERSON: Well how do you know he didn't know he was going?

MR HART: It wasn't his turn. It came out in evidence in court.

CHAIRPERSON: But the person may have phoned him up the night before or early that morning, to say look, "I've got some problems, will you take over from me today?"

MR HART: That happened at Exmico on that particular day that he was told to go, only after being at work.

JUDGE MILLER: Whereabout did Mr van Niekerk live, Mr Hart?

MR HART: In Quebeka Park.

JUDGE MILLER: That's up the Old Cape Road or something.

MR HART: Yes, very close to Hunter's Retreat.

JUDGE MILLER: Now if he was going to the bank and he felt he needed to have a firearm, couldn't he have gone via home and picked up the firearm before he got to the bank and then gone to the bank with his firearm?

MR HART: I suppose he could have done that, but that definitely didn't happen because this is all evidence that's down in the court, that there was no firearm on him at all.

CHAIRPERSON: Was there - you keep telling us the firearm was locked up at home, did anybody find it locked up at home? Were you present when it was found, or was there evidence led?

MR HART: No, I wasn't present when the safe was opened or whatever, but he was a very keen sportsman as well and he had a very big safe with firearms in.

JUDGE MILLER: So he had more than one firearm, he had various firearms.

MR HART: They were rifles.

JUDGE MILLER: Oh he used them for sporting purposes, but he had various ...

MR HART: Ja, hunting. But it was a big safe that he had. Apparently my mother-in-law was present, she opened the safe - which is his wife.

MR MBANDAZAYO: I'm indebted to the Commission, Mr Chairman.

Lastly, Mr Hart, do you know whether when he was asked, as you put it, at work, whether he was given a firearm by somebody else?

MR HART: No, I wouldn't be able to - I wasn't present there, but what I am speaking for is for the evidence that came out in court, where it was specified that he had no weapon on him at all.

MR MBANDAZAYO: Now lastly, are you saying that the reason why you maybe are opposed to the amnesty, is because the evidence that came up in court is different to what the applicant is saying today before the Commission?

MR HART: Yes, and I'm also standing in a little bit here for my mother-in-law, because she wouldn't be able to go through this. It was a last decision thing as well, to come along here.

MR MBANDAZAYO: Thank you, Mr Chairperson.

CHAIRPERSON: Re-examination?

RE-EXAMINATION BY MS THABETHE: Yes, Mr Chair.

Mr Hart, you've indicated that you are a very close family, is that correct?

MR HART: Yes.

MS THABETHE: And you've also indicated that you were not present when the safe was unlocked.

MR HART: No.

MS THABETHE: So how would you know - the question would be, how would you know that his firearm was in the safe?

MR HART: Well that was where it was locked up.

MS THABETHE: Who actually unlocked the safe?

MR HART: My mother-in-law.

MS THABETHE: So how did you know about the fact that the firearm was there?

MR HART: Well everybody in the family was talking about it and at the court it all came out, that he was unarmed.

MS THABETHE: Thank you, Mr Chair.

JUDGE MOTATA: Mr Hart, was this firearm which was locked up in his safe, that is Mr van Niekerk, his personal firearm?

MR HART: Yes.

JUDGE MILLER: Do you know what sort of firearm it was?

MR HART: No, I just know it's a hand ...(intervention)

JUDGE MILLER: A hand gun, a revolver or a pistol.

MR HART: Yes, ja.

JUDGE MOTATA: Thank you, I've got nothing further, Chairperson.

JUDGE MILLER: And I suppose you wouldn't know, because you didn't work there, but when they went to the bank they always go with two people?

MR HART: No, not from what I understand, because as far as I know the lady was actually asked to go to the bank on that day and Mr van Niekerk stepped in and he landed up going with her to the bank and coming back with the money.

JUDGE MILLER: So she might have had her own gun?

MR HART: I don't know.

JUDGE MILLER: Which Mr van Niekerk might have had in his possession? I don't know, I'm just asking. I mean, it would seem that Mr van Niekerk was in the habit of taking a gun when going to the bank to draw the wages, I think for fairly obvious reasons.

MR HART: Ja.

JUDGE MILLER: Protection.

MR HART: Yes, when it's his turn.

JUDGE MILLER: When it's his turn. So if somebody else was to carry out that turn, it wouldn't be unreasonable to assume that they might, that that other person might also take a gun.

MR HART: Yes, but the person that was going to go to the bank that day, never turned up for work. That's ...(intervention)

JUDGE MILLER: No, but who was this lady that went with him then?

MR HART: I don't know her name, but I know it was one of the women in the office, who was called to ...(intervention)

JUDGE MILLER: Although he - ja.

MR HART: It was a spur of the moment decision when the person who was supposed to have ...(intervention)

JUDGE MILLER: No, we're being a bit unfair because you don't work there, you don't know what the procedures are, but there was this lady there - yes, in any event, because you weren't there you won't be able to answer.

CHAIRPERSON: Thank you.

MS THABETHE: No further witnesses.

CHAIRPERSON: Was there an inquest held?

MR HART: Yes.

CHAIRPERSON: Have we had sight of the inquest proceedings? Has any attempt been made?

MS THABETHE: Mr Chair, not from the Investigative Unit. We did investigate - we did go to the APLA cadres to try and ascertain information, whether the applicant was an APLA member. The investigation was more to that direction.

JUDGE MILLER: No, but we're talking about the inquest, a formal inquest by a Magistrate.

CHAIRPERSON: Well presumably some policeman would have given evidence about having found the body.

MS THABETHE: No, Mr Chair.

CHAIRPERSON: You say no further evidence?

MS THABETHE: No further evidence, Mr Chair.

CHAIRPERSON: Thank you.

CHAIRPERSON: Would you prefer to address now or tomorrow morning?

MR MBANDAZAYO: I will prefer now, Mr Chairperson, I won't ...

MS THABETHE: The same applies to me, Mr Chair.

CHAIRPERSON: Very well.

MR MBANDAZAYO IN ARGUMENT: Thank you, Chairperson.

Chairperson, I won't bore you with the provisions of the Act, but it's my submission that the applicant has complied with the requirements of Section 20(1) and also (2), that he was actually acting on behalf of APLA. Mr Chairperson, I'm saying this because there is no evidence to gainsay what he's saying, that on the day he was given an order by Mandla and he carried out reconnaissance up until the 28th and on the 4th of October he pulled the mission. It's therefore my submission, Mr Chairperson and Honourable Members of the Committee, that the applicant has made a full dislosure regarding his involvement in this incident and that there is nothing to gainsay what he's saying, that he was acting on behalf of APLA, and he actually carried out the order as given to him by Mandla.

CHAIRPERSON: What of Pikoli's statement?

MR MBANDAZAYO: Chairperson, as I indicated that I agree with Pikoli's statement, Mr Chairperson, but the question is, he was the only person who was referred to. And Chairperson, just to briefly, as the Chairperson knows the procedure, how the procedure works within APLA and also PAC, it's totally different because he reports to his Commander and it's his Commander to report to whoever, whether to PAC structure or to APLA High Command. He had nothing to do to go to the structures of PAC, which of course for obvious reasons, Mr Chairperson, also Mandla cannot divulge names of the people who were involved in operations, for obvious reasons, for security reasons. If he divulged, everybody would know that so-and-so is the one who pulled that mission. So definitely it would be difficult now for the applicant to be in a position to -on his own, to say Pikoli knew about it or was informed ...(intervention)

JUDGE MILLER: He assumes that he ...(intervention)

MR MBANDAZAYO: He assumes because he's in the leadership, that he was informed about the operation. But Chairperson, I want to say that the problem we have is that it's difficult, it was going to be difficult even for Mandla to tell even the structures of PAC. Of course with the exception of certain people, all of them, to say "Look, it was so-and-so who pulled the mission", except if he just hands the money, because it means it will defeat the whole purpose of security to secure those cadres.

JUDGE MILLER: It would seem on the evidence before us, Mr Mbandazayo, that of your client and that given by Mr Hart, that the main point of contradiction relates to whether or not Mr van Niekerk had a firearm in his possession on that morning of October the 5th, when he returned from the bank. What do you have to say about that contradiction, that difference in the evidence. Let me put it that way.

MR MBANDAZAYO: Chairperson, as much as I respect Mr Hart's view on this aspect, of course taking into account that they lost a loved on, which of course I'm -you know, it's something which affects almost everybody, but Chairperson if one looks at the whole scenario as to how this was operated, this person goes to the bank and definitely almost everybody goes to the bank, a company, a big company, to draw wages. It's not something which is known as a routine, that you can go to the bank without carrying a gun, without having some sort of security.

But the question is whether Mr van Niekerk on that day was carrying a firearm. According to the applicant, he's saying look if he remembers it very well, he was also wearing a white shirt and that on the white shirt there was something protruding on the other side and of course he saw hit as a gun. So he feels that on the day in question he was carrying a gun.

Of course, Mr Hart is saying that on the day in question, it was not his day to go to the bank, but Chairperson, the question is not whether it was his day or not, whether on the day in question he was carrying a gun, whether it was his gun or another person's gun.

CHAIRPERSON: What do you say about the question of him not having a gun but your client genuinely believing he had? 'Cause the impression I got listening to your client giving evidence on this point, is your client had a fixed view that this man was going to be armed and he must be very careful.

MR MBANDAZAYO: Yes, Chairperson, I was just going - I'm indebted to you to raise it now. I was going to go to that second leg to say that he made a reconnaissance of the area and also of the person who - he saw it that the person is always carrying a gun and of course at the time he genuinely believed that this person was carrying a gun. By also his actions of throwing the money to him and he interpreted that to be, according to him, that he was trying to distract him so that he can be able to pull his gun and shoot at him. That is why he said he ducked and kept on concentrating on him and he saw him try to pull something and it's then that he shot him. So in a way he genuinely believes that Mr van Niekerk was carrying a gun on the day in question.

Chairperson, unless this Commission would like me to address on any other specific points, it's my submission that the applicant should be granted amnesty as applied.

MS THABETHE IN ARGUMENT: Thank you, Mr Chair.

My instructions are to oppose the application on the basis that on the day in question, Mr van Niekerk did not have a gun in his possession. I've heard my learned colleague arguing that the applicant believed that the deceased had a gun with him, but if my memory serves me correctly, Mr Chair, the applicant was asked this question as to whether he believed or he saw a gun and his response was that the deceased was wearing a white shirt and he actually saw the gun behind the white shirt, not that he believed that he carried a gun. And on that issue, Mr Chair, my instructions are that the deceased did not have a gun on him, there was evidence led in court to that effect, and yes, Mr Chair and Honourable Members of the Committee, Mr Hart is not an Exmico employee and he was not present at the scene, but he has indicated, Mr Chair, and I don't see why we should not take his version, that they were a close-knit family, they discussed issues, his mother-in-law went to the safe, the gun was there, Mr Chair. So the probabilities I would like to argue are that he did not carry the firearm on that day. Of course my difficulty is, Mr Chair, that Mr Hart was not present at the scene.

Further, Mr Chair, I would like to put it on record that we tried to verify the applicant's membership, PAC membership, and according to our Investigator, he was confirmed to be a PAC member by Viwe Miza. Unfortunately we could not get hold of Mike Xlashimba and we couldn't get a statement from Viwe Miza, but according to our Investigators, he was confirmed as a PAC member.

And of course, Mr Chair, we've got a statement from Pikoli, Mr Pikoli, who suggests that he did not have any knowledge of the said robbery. And we would like to argue that he might not have known who the APLA cadres were who were involved in that mission, but as a person who holds authority, he should at least have had knowledge of the said robbery.

With regard to the car theft, Mr Chair, I would leave it in the hands of the Committee to make a decision. Those are my submissions, Mr Chair. I leave it in the hands of the Committee to make the proper decision. Thank you.

CHAIRPERSON: Thank you.

JUDGE MILLER: Any reply?

MR MBANDAZAYO IN REPLY: The only aspect, Chairperson, is the one of Mr Pikoli as a person who is in authority. Chairperson, it's my submission - luckily I'm talking to the some of the Members of the Committee who have been involved in some APLA cadre application regarding Repossession Units. Some PAC leadership, it's only the top one, National Executive, some of them, only knew about that the UNITRA robbery was an APLA - it's only when Maseko applied. Nobody knew about it, everybody was shocked.

So Chairperson, it's not necessary that if you are in a position of authority you'll know everything that is done by APLA. Some of them are known today because they have applied for amnesty. Like some didn't even know what Eikenhof was until they applied for amnesty. Everybody believed that those who have been convicted were involved in the Eikenhof incident. So Chairperson, some of these issues, Chairperson, should be taken in that context, that at the time these people were so secretive in some of the issues. Of course there are others which were of course leaking, you'd hear about it, that so-and-so, there's a rumour that it was done by so-and-so, but that's not always the case, Chairperson. Thank you, that's all, Chairperson.

CHAIRPERSON: Very well, we'll take time. Now tomorrow, who is appearing?

CHAIRPERSON: Who is appearing tomorrow? What matter are we doing first?

MS THABETHE: Mr Chair, Ms Candice May has been here for the whole day, she's the lawyer for the victims in the Mgandela matter. I would suggest we start with it tomorrow morning, because the Balega and Dingane matter, there are no victims in that matter, so we can always do it afterwards.

CHAIRPERSON: What time?

MS THABETHE: I leave it in the hands of my learned colleague and the Committee, Mr Chairman.

CHAIRPERSON: I see that a lot of the persons sitting waiting here are going elsewhere now and will have to be brought here tomorrow morning. What would be a convenient time? Half-past nine? Right, we'll adjourn until half-past nine tomorrow morning.

MS THABETHE: As the Committee pleases.