TRUTH AND RECONCILIATION COMMISSION

_____________________________________________________CHAIRPERSON: Good morning everybody. I apologise for the late start this morning. We had a few problems relating to one of the matters which took some time to try to resolve, which were unable to be resolved, so I apologise for any inconvenience. Before we start I would just like to briefly introduce the Panel to you. On my right is Judge John Motata, he is an Acting Judge attached to the Transvaal Provincial Division of the High Court and a Member of the Amnesty Committee. On my left is Advocate Nsiki Sandi, also a Member of the Amnesty Committee and he comes from East London and I am Selwyn Miller, I'm a Judge of the High Court attached to the Transkei Provincial division of the court.

Mr Mapoma, which matter are we starting with? I have a whole pile here.

MR MAPOMA: Thanks Chairperson, I'm calling the matter of Bhekizizwe Mdlalose, application number 5202/97.

CHAIRPERSON: Yes, thank you. I'd at this stage just request the legal representatives just to kindly place themselves on record?

MS CAMBANIS: May it please the Committee, I am Ms Cambanis, initial C, appearing on behalf of the applicant.

CHAIRPERSON: Thank you Ms Cambanis.

MR MAPOMA: Thank you Chairperson, my name is Zuko Mapoma, I'm the Leader of Evidence.

CHAIRPERSON: Thank you. Ms Cambanis, your client will be giving evidence I take it?

MS CAMBANIS: He will be giving evidence in English.

CHAIRPERSON: In English, thank you.

BHEKIZIZWE CHRISTOPHER MDLALOSE: (sworn states)

CHAIRPERSON: Ms Cambanis?

MR MAPOMA: Excuse me Chairperson, before the testimony starts, I propose, Chairperson, for the record to make this announcement in this matter concerning the victim.

CHAIRPERSON: Yes?

MR MAPOMA: Chairperson, we note that the applicant applies for a number of incidents, some of whom do not have a gross violation of human rights but there is an incident where there is one person, Constable T P Magalimele who was injured as a result of the attack which took place on the 23rd October 1987. The investigative unit, Chairperson, have tried their level best to get hold of this person I've just mentioned but unfortunately in vain. According to the records he was originally from the Free State.

CHAIRPERSON: Yes.

MR MAPOMA: Now we have as a result instructed the media office of the TRC to issue a radio announcement for the victim to be located. As a result on the 21st June - I mean, firstly on the 7th June, the Nkwekwesi Radio, the CDC satellite broadcast, the Ukosi Radio of SABC, the Igwalagwala Radio made an announcement which requested the whereabouts of this person and then on the 21st June this radio announcement was again repeated. This has all been in vain, Chairperson, there is no response from the victim. In the circumstances, Chairperson, it is my submission that the Commission have done what could be reasonably done in the circumstances to notify the victim and I ask the Committee then to proceed.

CHAIRPERSON: Yes, in the circumstances, Mr Mapoma, it does seem that all reasonable steps have been taken to procure the victims presence without success. I think we can proceed with the matter.

MS CAMBANIS: Thank you Chairperson. Chairperson, as appears from page 2 of the bundle at paragraph 9(a)(i), this applicant in fact applies for three incidents.

CHAIRPERSON: Yes.

MS CAMBANIS: In the notice that he received, reference was only made to the incident on the 9th January 1978 in which a police officer was injured but it is our request that this Committee consider all three incidents and the matter be finalised.

CHAIRPERSON: Yes, you'll probably find and I don't know specifically what the reason was but you'll probably find that that was the only one in which there was a personal injury and therefore it was the only one that strictly speaking in accordance - according to the provisions of the Act required a hearing but it would be more convenient, certainly from our point of view, to deal with all of them and we can give it in - deal with it in one decision than set the decisions.

EXAMINATION BY MS CAMBANIS: Thank you. I'll proceed to lead the applicant.

Mr Mdlalose, you are the applicant in this matter and you have completed an application form on the prescribed form which appears at page 1 to page 7 of the bundle in front of you. If you look at page 6 of that bundle, is that your signature at the bottom of that page?

MR MDLALOSE: Yes, it's my signature.

MS CAMBANIS: And across the page at page 7, it was attested to on the 27th April 1997, is that correct?

MR MDLALOSE: That is correct.

MS CAMBANIS: And do you confirm the contents of your written application?

MR MDLALOSE: Yes I do.

MS CAMBANIS: Is it further correct that a letter dated 4th April 2000 was forwarded to you by the TRC and I show you a copy of that letter.

MR MDLALOSE: Yes that is correct.

MS CAMBANIS: Chairperson, that letter is not in the bundle but the response ...(intervention)

CHAIRPERSON: Yes, I see that reference is made to it on page 8 in the response, your letter dated 4th April.

MS CAMBANIS: And is it correct that we consulted you and I consulted on the matter and responded to it and that those responses are contained in the letter dated 23rd May 2000, addressed to the TRC and that that appears at page 8 and 9 of the bundle?

MR MDLALOSE: Yes that is correct.

MS CAMBANIS: And do you confirm that the contents of page 8 and 9 is also correct?

MR MDLALOSE: Yes I do confirm.

MS CAMBANIS: Now Mr Mdlalose you say at page 1 of your application that you apply in your capacity as a member of Umkhonto weSizwe, is that correct?

MR MDLALOSE: That is correct.

MS CAMBANIS: And you can assume that you underwent military training, is that correct?

MR MDLALOSE: Yes.

MS CAMBANIS: Where did you undergo military training?

MR MDLALOSE: I did my training inside South Africa in Swaziland before I left the country in 1977.

MS CAMBANIS: Both inside the country and outside the country?

MR MDLALOSE: That is correct.

MS CAMBANIS: And in your military training were you trained in the use of explosives?

MR MDLALOSE: Yes, I was trained in the use of explosives.

MS CAMBANIS: Did you also receive so-called political training?

MR MDLALOSE: Yes I did.

MS CAMBANIS: And could you tell the Committee, as part of the political training were you schooled in what the policies of the ANC were concerning so-called legitimate targets.

MR MDLALOSE: The policy was that we should at all costs try to minimise the loss of life.

MS CAMBANIS: So the incident - if I could take you to the incident in November 1977, you will see at page 2, that was an explosion that took place on the railway line between Dunswart and Apex. If you could just briefly tell the Committee about that incident, what you know about it?

MR MDLALOSE: The railway line between Dunswart and Apex, we set a mine there or sabotage the train. It was a form of economic sabotage.

MS CAMBANIS: And you say "we" who was we? Was there anyone with you?

MR MDLALOSE: Yes there was another gentleman I was working with.

MS CAMBANIS: And what is his name?

MR MDLALOSE: The name is Norman Ngwenya.

CHAIRPERSON: What was that surname again, Mr Mdlalose?

MR MDLALOSE: Norman Ngwenya.

MS CAMBANIS: And his name appears at page 8, Chairperson.

CHAIRPERSON: Sorry, Mr Mdlalose. Sorry, Ms Cambanis.

You said you put the bomb to sabotage a train. What was your intention? Was your intention to derail the train or did you - was it a mine that you could control the time of the detonation?

MR MDLALOSE: No, immediately the train passes then it triggers off the mechanism then the bombs went off.

MS CAMBANIS: And that is the incident in which there was no injuries or death?

MR MDLALOSE: I don't know whether there was any injury because I just left the mine and then left, what happened thereafter I don't know.

CHAIRPERSON: You didn't hear of any consequence of placing the mine.

MR MDLALOSE: No, what I read in the newspaper was that a train was derailed, a railway line was sabotaged, later on.

MS CAMBANIS: Mr Mdlalose, on page 11 of the bundle are the incidents reported from the Harms Commission and it refers to this incident in November 1997 and as we've gone through it there was no injuries or deaths in this incident as it appears from the Harms Commission information?

MR MDLALOSE: Yes I can see that here.

MS CAMBANIS: And then if we could move onto the incident in December 1977, the Benoni Station car park. Briefly again, could you just tell the Committee what the event involved?

MR MDLALOSE: November 1977 we planted a bomb in a car park in Benoni. This bomb was not intended for the car park but unfortunately, the place we intended to plant it at, by then there were full of people moving around there so we had to divert it to this railway car park station which was run by the Railway Police.

CHAIRPERSON: When you say "we"?

MR MDLALOSE: Together with Norman Ngwenya.

MS CAMBANIS: Mr Mdlalose and then as you say at page 8, Mr Ngwenya was arrested and convicted for both these incidents during 1979, is that correct?

MR MDLALOSE: Yes that is correct.

MS CAMBANIS: And then the last ...(intervention)

CHAIRPERSON: Sorry, just before you proceed, Ms Cambanis?

What was the effect of the bomb going off in the car park?

MR MDLALOSE: Pardon?

CHAIRPERSON: What was the effect of the bomb going off in the car park?

MR MDLALOSE: I don't know how many cars were affected.

CHAIRPERSON: But you also, as far you're concerned you didn't hear of any injuries?

MR MDLALOSE: No, no injuries at all.

CHAIRPERSON: Was this at night time or during the day, what was the situation?

MR MDLALOSE: It was during the day.

CHAIRPERSON: Mr Mdlalose, I'm not sure if you've already said, what was the idea behind diverting it to the car park? What had happened?

MR MDLALOSE: There was a filling station just nearby which was supposed to be our target but in seeing that there were a lot of people during that time we had to shift it to the railway line into the railway car park station.

CHAIRPERSON: So did you consider that the railway station, the car park was a legitimate target?

MR MDLALOSE: Yes it was because it was owned by the Railway Police.

CHAIRPERSON: So it wasn't just a public car park?

MR MDLALOSE: No, it was not to my knowledge.

CHAIRPERSON: It was the Railway Police had parked their vehicles?

MR MDLALOSE: No, to my knowledge it was not.

CHAIRPERSON: Sorry?

MR MDLALOSE: It belonged to the Railway personnel.

MS CAMBANIS: Sorry, Mr Mdlalose, what the Chairperson is asking you, whose cars were parked. It belonged to the Railways, was that considered a legitimate target?

MS CAMBANIS: And who used the car park facilities?

MR MDLALOSE: The Railway Police.

MS CAMBANIS: Then the third incident is January 1978 again at Dunswart Railway Station. Please tell the Committee what happened on that occasion? What was the plan first of all?

MR MDLALOSE: The plan was that we should - we were supposed to go together with the other guys, Ngwenya included, to plant this bomb, the bomb that we're having.

MS CAMBANIS: Before you proceed, it was Norman Ngwenya and who else on this incident?

MR MDLALOSE: The three other guys included in this incident. Wellington Pumisa, Linda Mulihome and Hamilton Hlohane.

MS CAMBANIS: Chairperson, that appears at page 9 of the bundle.

So please proceed? There was this group of five of you that proceeded to Dunswart and what happened then?

MR MDLALOSE: Yes, on our way to the said target we were confronted by these Railway Police and by then the bomb was trying to go off any time, I mean the time that we've set it. He asked us what we had - I mean there was no time to answer him so I pointed a gun and I shot him.

MS CAMBANIS: If you can just explain to the Committee what you're saying is at the time you were confronted by the police person you already had an explosive device detonated to go off at a certain time?

MR MDLALOSE: That is correct.

CHAIRPERSON: What was your delay, your time delay?

MR MDLALOSE: I can't remember well but it could have been about 30 minutes.

MS CAMBANIS: And do you know now, Mr Mdlalose, that this policeman suffered injuries as a result of the gunshot?

MR MDLALOSE: Yes I know it.

MS CAMBANIS: Mr Mdlalose, the explosives that were used, where did you obtain the explosives from for all three of these incidents?

CHAIRPERSON: Sorry Ms Cambanis, before he answers that, sorry to keep intervening.

What happened with your mine then? You've now got a mine that's set to go off. The policeman came and you shot him. What did you do with the mine?

MR MDLALOSE: I did activate it on our way when we were going back to our place.

CHAIRPERSON: Yes thank you. Sorry Ms Cambanis.

CHAIRPERSON: The explosives used in these three incidents, do you recall where they were obtained from?

MR MDLALOSE: Yes I recall. We used to obtain them from Swaziland or in our DLBs - dead letter boxes.

MS CAMBANIS: So obviously the dead letter boxes were here in South Africa.

MR MDLALOSE: Being in South Africa.

MS CAMBANIS: So either you got them in South Africa from dead letter boxes or they were obtained from Swaziland?

MR MDLALOSE: That is correct.

CHAIRPERSON: Were you part of Special Operations or not?

MR MDLALOSE: No I was not.

MS CAMBANIS: Now Mr Mdlalose, at page 5 of the bundle, you refer to the fact that the overall commander of the machinery - sorry, under which machinery did you actually fall?

MR MDLALOSE: It was the Transvaal machinery.

MS CAMBANIS: And you state at page 5 that the overall commander of the machinery was Mr Sipiwe Nyanda, is that correct?

MR MDLALOSE: That is correct.

MS CAMBANIS: And we've showed, included in the bundle is the application of General Nyanda at page - I beg your pardon, page 13 onwards, Chairperson.

CHAIRPERSON: I was personally involved in that application so I'm aware of it.

MS CAMBANIS: And the incident at Dunswart is listed by General Nyanda at page 24, item 14 of the bundle. Is that correct?

MR MDLALOSE: Yes that is correct.

MS CAMBANIS: And then Mr Mdlalose, did you receive any payment or any material advantage for any of these operations?

MR MDLALOSE: No.

MS CAMBANIS: Is there anything further you wish to add and tell the Committee?

MR MDLALOSE: There's nothing else I wish to tell the Committee.

MS CAMBANIS: Thank you Chairperson, that concludes the evidence.

CHAIRPERSON: Thank you Ms Cambanis. Mr Mapoma, do you have any questions you'd like to put to the applicant?

MR MAPOMA: I have no questions, Chairperson, thank you.

CHAIRPERSON: Judge Motata, do you have any questions?

JUDGE MOTATA: I've got none Chairperson.

CHAIRPERSON: Mr Sandi, do you have any questions?

ADV SANDI: No questions Chairperson, thank you.

CHAIRPERSON: Mr Mdlalose, thank you very much, that concludes your testimony, you may stand down.

CHAIRPERSON: Ms Cambanis?

MS CAMBANIS IN ARGUMENT: Thank you Chairperson, it's my submission that the applicant has complied with Sections A in submitting the application in it's required form together with further disclosures.

From the application of General Nyanda together with the submissions submitted by the ANC it is clear that all the acts for which he applies are acts associated with a political objective as set out by the ANC. The overall commander has taken responsibility in his applications as I've already said and finally, in terms of Section 20(c), this applicant has come forward and disclosed all relevant facts including the names of all persons who were involved, the modus operandi and everything that he knows about the application. In the circumstances I submit that this Committee shall give him amnesty in terms of Section 20. As the Committee pleases.

CHAIRPERSON: Thank you Ms Cambanis. Ms Cambanis, we hand down written decisions which decision I'm sure would be handed down in the near future so in that respect we reserve the decision that should be in the very near future.

MS CAMBANIS: May we be excused, Chairperson?

CHAIRPERSON: Certainly. Thank you very much for your assistance.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Chairperson, at this stage I would call the application of Yende and Phikwane but I don't see Mr Mbandazayo at this point. I wonder if the Committee cannot adjourn just for five minutes?

CHAIRPERSON: We'll take a five minute adjournment and then reconvene when you're ready and you can call us as soon as you're ready.

MR MAPOMA: Yes.

CHAIRPERSON: Thank you Mr Mapoma. Just let me get the bundle, it's Yende and Phikwane. I have that here, thank you very much. We'll take a short five minute adjournment before we start of the next application which would be that of Messrs Yende and Phikwane.

CHAIRPERSON: Yes, thank you. We'll now commence with the Messrs M M Yende and T J Phiwane and at this stage I'd just like the legal representatives please to place themselves on record.

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

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Mapoma?

MR MAPOMA: Zuko Mapoma, the Evidence Leader. Thank you Chairperson. The first applicant to testify will be Mr Phikwane. He is Setswana speaking, Chairperson.

MR MAPOMA: Chairperson, just before the proceedings start I propose to address the Committee on the status of the victims in this matter.

Chairperson, the victims who have been located are Gary Owen. I have spoken to him, even today he is not before the Committee. He is in Pinetown, he has indicated that he is not willing to come to the hearing, the matter may proceed in his absence, he only mentioned that he was injured to the extent that he is confined in a wheelchair at this point as a result of a shooting and he says the other person with whom he was, his colleague was Adrian Pearce but he says that Adrian Pearce was not injured in that incident at all. Then there one Mario Alexander Wilfred who could not be located, Chairperson. And there is also Jan de Jager of Port Elizabeth whom we spoke to but he denies that he was injured. In fact he says that he was not injured as well. And then for what it is worth we sent the newspaper article or notification through the newspaper through the Beeld newspaper around Gauteng concerning these incidents for which amnesty is sought here, to ask whoever may have been a victim to please come forward. Unfortunately, no one else, Chairperson, has shown up. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mapoma. I'd just also like to inform members of the public present that these proceedings are translated simultaneously and if you wish to benefit from the translation, you must be in possession of one of these devices which are available from the sound engineer. So if you want to benefit from the translation, please obtain one of these devices, just tune it in to the correct channel and you will benefit therefrom.

THEMBA JACK PHIKWANE: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson and Honourable Members of the Committee. Mr Phikwane, is it correct that you were the born on the 7th August 1955 in Kimberley?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that you passed Standard 6 in 1972?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that after that you worked as a builder around Gauteng until 1975?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that you joined PAC in August 1976?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that you left the country the same year?

MR PHIKWANE: ...(inaudible)

MR MBANDAZAYO: I'll repeat it. Is it also correct that you left the country in October 1976 and you joined APLA in Botswana?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that you did your military training in Tanzania, Libya and Uganda?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that since 1981 you came in and out of the country building structures of PAC that it serves for APLA and recruiting new numbers?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Is it also correct that in 1986 you came back inside the country permanently to be involved in operations inside the country?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Now Mr Phikwane is it correct that at the present you are a member of the South African National Defence Force?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: And you are stationed at Pootmansburg in the Northern Cape?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: And you are holding a rank of a staff sergeant?

MR PHIKWANE: Correct, Chairperson.

MR MBANDAZAYO: Now Mr Phikwane, is it correct that you are applying for amnesty in respect of about three incidents which started in December 1986 up until February 1987?

MR PHIKWANE: That is correct, Chairperson.

MR MBANDAZAYO: Now Mr Phikwane, can you be able to tell the Committee about the first incident which happened around the 16th December 1986?

MR PHIKWANE: I will do so, Chairperson.

MR MBANDAZAYO: Can you proceed?

MR PHIKWANE: In 1986 on the 16th December it is when I arrived in Alexander. I met my co-applicant, that is Mr Yende. We were sharing some information and we saw members of the South African Defence Force shooting young children and shooting them with teargas. We made a decision that we'll take steps to attack those members of the South African Defence Force. We followed them at Jan Brand 16th Avenue. We attacked them with Scorpion firearms. As I was a member of the APLA unit I was mandated to do so.

We observed that three members died because they did not return fire. We observed that maybe some of them had died. We retreated and left that place. Then we learnt from the newspapers that three members who have since died during the incident. That is all Chairperson.

MR MBANDAZAYO: Will I be correct if I say that you yourself you cannot be in a position to say that in actual fact they did die or a certain number of people who were injured except that what you read from the paper or you heard over the radio?

MR PHIKWANE: That is correct, Chairperson.

MR MBANDAZAYO: Now can you then, Mr Phikwane, tell the Committee about the second incident?

MR PHIKWANE: The second incident happened on the 1st January 1987. It happened between corner of Jan Brand and 1st Avenue. I went there as a commander being instructed by APLA from outside and again I went those who were recruited within the country, that's Sidudle. We attacked members of the Self Defence Unit with Scorpion firearms in Alexander. We observed again that they did not return fire when we started shooting. We thought then that maybe some of them had died or were injured. But we received the information about the results of the operation from newspapers about the outcome of the incident.

We learnt that approximately six to seven members had died or were injured during that incident because all of us were armed with firearms. And all of us, we were three in number.

CHAIRPERSON: Sorry, who were you with, Mr Phikwane?

MR PHIKWANE: It was myself and Mike Yende, who is my co-applicant, and Mr Sidudle who has since died.

MR MBANDAZAYO: Chairperson, I think Sidudle was David Timiyaga.

CHAIRPERSON: Thank you Mr Mbandazayo.

MR MBANDAZAYO: Can I proceed, Chairperson?

Now Mr Phikwane, it's also the same thing with this operation. You yourself you are not in a position to say whether in fact this is the number of people who died or who were injured except that's what you read from the newspaper?

MR PHIKWANE: That is correct, Chairperson.

MR MBANDAZAYO: Now can you then, Mr Phikwane, go to the third incident?

MR PHIKWANE: The third incident happened somewhere in the end or the beginning of January. That is in 1987. That is at Hofmeyer Street, that is the corner of Meyer and 11th Avenue. We attacked members of the South African Defence Force. It was Mr Yende and the other person named Morapapa who has since died. We observed again that in that particular incident many members were affected as per newspaper reports as it is stated that five or six members had died. The information about the results of the attack, we read them from the newspaper because we attacked them and they did not return fire and then it was not possible for us to go there and to observe the effects of our attack. Approximately five to six members of the South African Defence Force died during the attack.

MR MBANDAZAYO: Mr Phikwane, can you tell the Committee, we understand that you were coming from outside the country and you were a trained member of APLA. Who gave you instructions, direct instructions, to come inside the country and undertake these operations?

MR PHIKWANE: I received instructions from Sabelo Pama who has since died. Or he has left the PAC. If he was not there Mr Lethlapa Mphahlele would give me the instructions.

MR MBANDAZAYO: Now, to whom were you reporting after these operations and where were you reporting?

MR PHIKWANE: I'd report to Mr Lehlapa Mpahlele because we used to meet him many times because Mr Sabelo Pama was always engaged.

MR MBANDAZAYO: Where were you reporting to him, Lehlapa Mpahlele?

MR PHIKWANE: Sometimes we'd be in Zimbabwe, at times we'd be in Botswana. At times we'd be inside the country.

MR MBANDAZAYO: Now can you tell the Committee how many were you in the unit in which you were operating?

MR PHIKWANE: We will be three but within the unit the total number is five. It is myself, Mr Yende, Morapapa who has since died and Sidudle, who has since died and Mr Bengu.

MR MBANDAZAYO: Chairperson, Morapapa has been mentioned, it was alias Ranti Matapu.

JUDGE MOTATA: What is the middle name, Mr Mbandazayo? The middle name of alias?

MR MBANDAZAYO: Ranti. R-A-N-T-I. Ranti Matapu.

JUDGE MOTATA: Thank you.

MR MBANDAZAYO: Now Mr Phikwane, can you tell the Committee why specifically the South African Defence Force or Police were your targets?

MR PHIKWANE: It is because of the orders and the polices of the organisation who were members of that, we would attack white members, South African Defence Force and the South African Police of the former government, that we should not affect innocent civilians in our operations.

MR MBANDAZAYO: Chairperson, that's the evidence of the first applicant in this incident. Thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mapoma, do you have any questions you would like to put to the applicant?

MR MAPOMA: I have no questions, Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions you would like to put?

JUDGE MOTATA: None Chairperson.

CHAIRPERSON: Mr Sandi, any questions?

ADV SANDI: No Chairperson, thank you.

CHAIRPERSON: Just very briefly. Mr Phikwane, these attacks upon the members of the South African Defence Force, the people that you attacked, were they in motorised patrols or vehicles or were they on foot patrols?

MR PHIKWANE: Most of the attacks were made when they were motorised, those which happened in Alexander.

CHAIRPERSON: So was it the situation that you would lie in ambush and when they came you attacked them?

MR PHIKWANE: That is correct, Chairperson. At times we'd attack them when they are motorised or in other instances we attacked them when they are manning roadblocks.

CHAIRPERSON: And did these attacks take place during the day time or at night time?

MR PHIKWANE: The one I am able to recall about is it happened during the day, that's on the 16th December which happened between Jan Brand and 16th Avenue. It happened at 9 o'clock in the morning. Other attacks, for example, the one which happened on the end of January towards the beginning of February in 1987 which happened between Hofmeyer and 11th Avenue, it happened at night when they were changing shifts and the one which happened between corner Jan Brand and 1st Avenue, happened at night.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising out of questions that I have put?

MR MBANDAZAYO: None, Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

CHAIRPERSON: Mr Phikwane, thank you. That concludes your testimony. You may stand down.

MR PHIKWANE: Thank you Chairperson.

MR MBANDAZAYO: Chairperson, the second applicant would be Mandla Michael Yende. He is Zulu speaking, Chairperson.

MANDLA MICHAEL YENDE: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson and Honourable Members of the Committee.

Mr Yende, is it correct that you were born on the 8th December 1960 in Alexander around Gauteng?

MR YENDE: That is correct.

MR MBANDAZAYO: Is it also correct that you were at school as far as Standard 7?

MR YENDE: That is correct.

MR MBANDAZAYO: Is it also correct that you joined PAC in 1986 through Azania?

MR YENDE: That is correct.

MR MBANDAZAYO: Is it also correct that in the same year you met the first applicant who recruited you to join APLA?

MR YENDE: That is correct.

MR MBANDAZAYO: Is it also correct that he trained you in how to handle firearms and explosives?

MR YENDE: That is correct.

MR MBANDAZAYO: And this training, is it correct that it took about two weeks?

MR YENDE: That is correct.

MR MBANDAZAYO: Now Mr Yende, you have heard the evidence of the first applicant. Do you confirm the evidence in as far as yourself that you were involved with him in the three operations and also you abide by his testimony in as far as it relates to you?

MR YENDE: I confirm everything that he said.

MR MBANDAZAYO: Thank you Mr Yende.

Chairperson, that's the evidence of the second applicant. Chairperson, I would request, just an oversight on my part. In his application there was an error which we wanted to correct inasfar as dates, dates of the incidents said between January and February instead of between December 1986 like in the first applicant, Chairperson. Between December 1986 and 1987, Chairperson.

CHAIRPERSON: Yes I think it's not very material that amendment, Mr Mbandazayo, and we'll accordingly amend paragraph 9(a)(ii) as it appears on page 1 of the bundle by deleting the word January and substituting it with December 1986.

MR MBANDAZAYO: Yes Chairperson, thank you.

JUDGE MOTATA: I think further it's cured by the further particulars or statement contained on page 4 to 6?

MR MBANDAZAYO: Yes Chairperson, thank you.

That's the evidence of the second applicant, Chairperson. No further evidence to be led.

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Mapoma, any questions that you'd like to put to Mr Yende?

MR MAPOMA: I have no questions Chairperson.

CHAIRPERSON: Judge Motata, any questions?

JUDGE MOTATA: I've got none, Chairperson.

CHAIRPERSON: Mr Sandi?

ADV SANDI: No questions thank you.

CHAIRPERSON: Mr Yende, thank you. That concludes your testimony, you may stand down.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Chairperson, that's the evidence of the applicants, no further evidence will be led, thank you.

CHAIRPERSON: Thank you. Submissions?

MR MBANDAZAYO IN ARGUMENT: Chairperson, my submission now briefly is as follows. Just to throw some light, Chairperson, though I was not able to dig into it, I didn't have enough time to go to. The incident in which the applicants are applying for amnesty relates to 1986/1987 at the time if my memory and the papers, they were called Scorpion gangs at the time. It was the group which was called Scorpion gangs. In fact it was termed by the South African Defence and Police. It was an APLA, they called it Scorpion gangs. It was at the time in 1986 is when the Scorpion were new in the South African arena, in the politics, and they were using unique - because at that time it was AK-47 and for the first time the Scorpion came into picture and they were called Scorpion gangs.

Chairperson, from what the first applicant has testified and second applicant it's clear that they were acting within the mandate of the PAC and APLA and they were carrying out instructions and as all of know that during the submissions of APLA and PAC, the South African Defence Force and the Police were regarded as pillars of apartheid and if you want to bring down the apartheid you have to fight the pillars of apartheid to bring them down and as such they were engaging in those pillars of apartheid.

Therefore, Chairperson, it's my submission that the two applicants have met the requirements of the Act and they should be granted amnesty as applied for. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mbandazayo. I see Judge Motata's fingers advancing towards the button here.

JUDGE MOTATA: Just one thing Mr Mbandazayo. Seeing what they're applying for in terms of the three incidents, are they also applying for illegal possession of firearms?

MR MBANDAZAYO: Yes Chairperson, it's one which I also slipped up, I wanted to bring it to the Committee, it slipped my mind, Chairperson. It's also applying for the possession of those firearms and ammunition which they used in these attacks, Chairperson. Thank you.

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Mbandazayo, we will hand down a written decision in this matter which decision will be done in the very near future. So accordingly the decision is reserved but will be written down in written form shortly.

MR MBANDAZAYO: Thank you Chairperson.

CHAIRPERSON: Thank you.

_____________________________________________________CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Chairperson, at this stage I am calling the application of Tshabalala and Ntantiso. They are both represented by Mr Mbandazayo and Mr Tony Richard is appearing for the victims. I do not see him here now, Chairperson. I do not know where he is.

CHAIRPERSON: Did you want a five minute adjournment or what is the situation?

MR MBANDAZAYO: Yes Chairperson, I would appreciate that.

CHAIRPERSON: I think we'll take a five minute adjournment for Mr Richard who is appearing for the victims in this matter. If you could just let us know as soon as you're ready, Mr Mapoma, thank you. We'll take a five minute adjournment.

MR MBANDAZAYO: Thank you.

MR RICHARD: ...(inaudible) last?

CHAIRPERSON: Oh thank you, I think the last application went a lot quicker than expected so it's understandable that you might have thought it might have lasted longer.

We will now commence with the application of Messrs A T Tshabalala and M J Ntantiso and at this stage I would request the legal representatives to kindly place themselves on record?

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

CHAIRPERSON: Thank you Mr Mbandazayo.

MR RICHARD: May it please, Chairperson, my surname is Richard, initials A J, I represent the Van Wyk family, the sons of the deceased.

CHAIRPERSON: Thank you Mr Richard.

MR MAPOMA: I'm Zuko Mapoma, Leader of Evidence.

CHAIRPERSON: Thank you Mr Mapoma. Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson, the first applicant will be Mdubeki Johannes Ntantiso and he is Xhosa speaking, Chairperson.

MDUBEKI JOHANNES NTANTISO: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson.

Mr Ntantiso, is it correct that you were born on the 1st September 1965 in Gauteng?

MR NTANTISO: That is correct.

MR MBANDAZAYO: Can you tell the Committee how far have you gone to school?

MR NTANTISO: Standard 5.

MR MBANDAZAYO: Mr Ntantiso, can you tell the Committee when did you join the PAC?

MR NTANTISO: In 1988. If I'm not mistaken, it was in 1988.

MR MBANDAZAYO: Which branch of PAC did you belong to?

MR NTANTISO: In the central Vaal.

MR MBANDAZAYO: In which structure were you?

MR NTANTISO: I was in the Azania and also went to the Task Force.

MR MBANDAZAYO: Now when did you join the Task Force of PAC?

MR NTANTISO: In 1990 if I'm not mistaken.

MR MBANDAZAYO: Did you undergo any training as a Task Force member?

MR NTANTISO: Yes Sir.

MR MBANDAZAYO: Can you tell the Committee where did you undergo training?

MR NTANTISO: In the Transkei.

MR MBANDAZAYO: In which year?

MR NTANTISO: In 1990.

MR MBANDAZAYO: Who trained you in Transkei?

MR NTANTISO: Judge Makakula.

MR MBANDAZAYO: What were your duties as a Task Force member?

MR NTANTISO: It was to protect the comrades and leadership, PAC leadership as a whole.

MR MBANDAZAYO: Now Mr Ntantiso, can you tell us about this incident of October 1993?

CHAIRPERSON: Sorry, just before you get onto that, Mr Mbandazayo, what was the relationship, if any, between the Task Force and APLA?

MR NTANTISO: The Task Force was a structure affiliated to the APLA.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson.

Now Mr Ntantiso, can you tell us about the incident of 1993? What actually happened, what led to this incident?

MR NTANTISO: In 1993 we were coming from the meeting, Task Force meeting. When we were next to the PAC offices, it was held at the national office, headquarters of the PAC.

CHAIRPERSON: And where about was that?

MR NTANTISO: Here in Gauteng in Johannesburg area.

MR MBANDAZAYO: Yes, continue? Just be slow, don't be fast.

MR NTANTISO: When we were next to the PAC offices in Zone 11 two white men came in khaki uniform, they were driving in two cars and another one came later driving in a Mercedes Benz and there was a lorry also behind him. We were shocked to see the white men in the township and at the time they were not to come to the township. We had to devise a plan and we thought that they were coming to attack because the SADF had just attacked Mbendalosa house and killed his children in their sleep and we decided to close the office and after that myself and the other members, I actually instructed the members to shoot.

MR MBANDAZAYO: How many were you, who were the people who were involved in this? Who came up with this idea, who decided that those people should be shot at?

MR NTANTISO: The six of us.

MR MBANDAZAYO: Yes, can you tell the Committee the names of those people?

MR NTANTISO: It was myself, Linda, Amos Tshabalala, Edgar Mohapi, Philem Fukeng and his brother.

MR MBANDAZAYO: Were all of you Task Force members?

MR NTANTISO: Yes that is correct.

MR MBANDAZAYO: Can you tell the Committee how were you armed?

MR NTANTISO: We were armed with a pump gun and a pistol.

MR MBANDAZAYO: How many weapons did you have, all of you had weapons or it was few of you?

MR NTANTISO: The other one had a pistol and the other one had a pump gun.

MR MBANDAZAYO: Chairperson, I think if the interpretation is correct, the five were having pistols and one was having a pump gun.

CHAIRPERSON: So, yes, when I heard it my understanding was that there were just two weapons but let's just get this clear.

So did each of you - sorry, did one of you have a pump gun?

MR NTANTISO: Yes that is correct.

CHAIRPERSON: Who had the pump gun?

MR NTANTISO: Tshabalala.

CHAIRPERSON: And did the rest of you, the other five, all each have one pistol or did you have one pistol between the other five?

MR NTANTISO: Each and every person had his own pistol.

CHAIRPERSON: Thank you Mr Mbandazayo.

MR MBANDAZAYO: Thank you Chairperson.

Now when you say that you decided to shoot, you mention that there were other people. How many were they there, the white people who were there, when you shot at them?

MR NTANTISO: When we were shooting at Van Wyk the other two had already left the scene. I don't know where they were but they left and they never came back.

MR MBANDAZAYO: Okay, can you tell the Committee who actually shot the victim?

MR NTANTISO: It was Tshabalala.

MR MBANDAZAYO: So he used his pump gun?

MR NTANTISO: Yes that is correct.

MR MBANDAZAYO: And after shooting him what did you do?

MR NTANTISO: They retreated on foot and I went back driving in a car.

MR MBANDAZAYO: Why did you take the car?

MR NTANTISO: We were going to use the car, we were about to take the car to the Transkei.

CHAIRPERSON: This is the car that belonged to the deceased?

MR NTANTISO: Yes that is correct.

MR MBANDAZAYO: To whom were you going to take the car to Transkei?

MR NTANTISO: We were going to take it to the commander, Judge Makakula, commander of APLA.

MR MBANDAZAYO: You mentioned in your evidence that it was after the attack of the Mbendalosa family in Umtata. Was it the reason why you attacked Mr van Wyk or was it one of the reasons that you attacked him?

MR NTANTISO: It was just one of the reasons. The main reason was the fact that during that year it was declared by our commander, Sabelo Pama, that it was the Year of the Great Storm. The Year of the Great Storm meant the community should fight the system who was in place at the time.

MR MBANDAZAYO: Now you've mentioned correctly that it was the Year of the Great Storm but Mr van Wyk was a geologist, he was working there, just an innocent person. He was not a member of parliament, he was an ordinary citizen and if I may used the word soft, he was just a soft target, somebody who was harmless and had nothing to do with - what do you say to that?

MR NTANTISO: I can say Mr van Wyk was one of the people who were benefiting from the old regime. The reason for me to say so is because they had voting rights and they are the people who put the Nationalist Party Government in place.

MR MBANDAZAYO: Now what you say if an argument comes up and says look, this has nothing to do inasmuch as you were members of PAC or in Task Force but the incident had nothing to do with politics, it was just a criminal offence, just a plain robbery. What would you say to that?

MR NTANTISO: I'll dispute that because this was politically motivated because anyone who knew, everybody knew that in 1983 that that year was declared as the Year of the Great Storm. On top of that, during that same year, the PAC offices were being attacked all the time by the then government.

MR MBANDAZAYO: Now Mr Ntantiso, what do you say now to the family of the deceased?

MR NTANTISO: I can say I sympathise with them today. I have deep feelings and about what happened to Van Wyk on that particular day that he became one of the victims of the political violence.

MR MBANDAZAYO: Chairperson, that's the evidence of the applicant at this stage. Thank you.

CHAIRPERSON: Thank you Mr Mbandazayo. Mr Richard do you have any questions you'd like to put to the applicant?

MR RICHARD: I do Chairperson.

CHAIRPERSON: I see that it's almost 1 o'clock, would this be a convenient time to take a lunch adjournment?

MR RICHARD: I believe it's convenient. It's 1 o'clock.

CHAIRPERSON: I see it's 1 o'clock, we'll take the lunch adjournment now and if we could start at quarter to two?

MR RICHARD: I'm in agreement with that.

CHAIRPERSON: Thank you.

ON RESUMPTION

MDUBEKI JOHANNES NTANTISO: (s.u.o.)

CHAIRPERSON: Thank you. Mr Richard?

CROSS-EXAMINATION BY MR RICHARD: Thank you.

Mr Ntantiso, I see from your application at page 8 that you were born in the township of Bopalong. Now how far away from Sebokeng is Bopalong?

MR NTANTISO: It's quite a distance but I cannot say for sure how much distance is involved.

MR RICHARD: Would you agree or disagree, it's about 10,15 kilometres away?

MR NTANTISO: I cannot dispute that and I cannot say yes.

MR RICHARD: But Bopalong is near Sebokeng, Sharpeville, they're all in the same area?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now for how long did you live in Bopalong?

MR NTANTISO: I cannot remember, it's possible that we left in 1979 or in the '70s.

MR RICHARD: And then did you go to Sebokeng?

MR NTANTISO: We went to Everton before relocating to Sebokeng.

MR RICHARD: And now for how long did you live in Sebokeng?

MR NTANTISO: I cannot remember, Sir.

MR RICHARD: Was it one year, five years?

MR NTANTISO: Many years to such an extent that I cannot remember.

MR RICHARD: So it's true to say that you grew up in the Vaal Triangle, Everton?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now where in Sebokeng precisely was the PAC office in 1993?

MR NTANTISO: Where this incident took place was in Zone 11 and the other one was in Zone 12 and the other office was in Everton.

CHAIRPERSON: So the office that you're talking about was the office that was in Zone 11?

MR NTANTISO: Yes that is correct.

MR RICHARD: And I see your address is given as Zone 11?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now isn't it true to say that immediately across the way from the place where the PAC had it's office in Zone 11, there's a football field, a sports area?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now how often had you been to the office in Zone 11? Was it once, twice or many, many times?

MR NTANTISO: I cannot say but I used to frequent the office.

MR RICHARD: Now the day in question, what time did you arrive at the office in Zone 11?

MR NTANTISO: I cannot say about the time but I think it was during daylight.

MR RICHARD: Was it in the morning or the afternoon?

MR NTANTISO: It was not in the morning but it was during the late hours of the morning.

MR RICHARD: The late hours of the morning? Is that your answer?

MR NTANTISO: It was in the morning but not very early in the morning.

MR RICHARD: Now were you aware that work was to be started on that football field in front of the PAC office to build a sports stadium?

MR NTANTISO: I knew nothing but that's why I was shocked.

MR RICHARD: What were you shocked about?

MR NTANTISO: I was shocked to see the whites inside the township because at the time whites wouldn't set their foot in the township. The only whites that would go into the township would be escorted by the ANC members.

MR RICHARD: Now at any rate we've now discovered that you arrived there late morning. Did you go away from the office?

MR NTANTISO: No.

MR RICHARD: Now if I tell you that that day there was a drilling rig on the football ground outside your office, a big machine, big truck?

MR NTANTISO: Yes that is so.

MR RICHARD: Now so that means you would agree with me that when the drilling rig gets ready to drill the hole in the ground it stands about two and a half stories high?

MR NTANTISO: I cannot say but I agree that there was a drilling machine.

MR RICHARD: And it was drilling the whole day then, making a lot of noise?

MR NTANTISO: Yes, I agree.

MR RICHARD: And did you see people around the drilling machine, working the machine and working in the holes that it had dug?

MR NTANTISO: Yes.

MR RICHARD: So you wouldn't dispute it if I told you that on that day the deceased, as a geologist, had a device, a tripod which would lower him down into the holes and he would go and take samples from the hole and he would come out, samples of soil?

MR NTANTISO: I know nothing about that.

MR RICHARD: Did you look at them drilling?

MR NTANTISO: No I was standing at a distance as they were working there.

MR RICHARD: But it wasn't more than one and a half football field lengths away?

MR NTANTISO: I went there to attack only, I didn't go there to observe people working there.

MR RICHARD: Now, it's also true that this Mercedes was parked very near the PAC's office, outside in fact?

MR NTANTISO: Yes that is correct.

CHAIRPERSON: Sorry, Mr Richard, if I could just ask a question?

This PAC office, what was it? Was it a high rise building with an office or was it situated in a house? If you could just describe the PAC office very briefly please?

MR NTANTISO: It was a building with a room. A building that was connected in some business building where the shops were.

MR RICHARD: Was that a one or two story high building, three storeys?

MR NTANTISO: It was just a single building.

MR RICHARD: Now where we had got to was that you were aware that this Mercedes was parked right outside near your office and you had noticed that?

MR NTANTISO: Yes I saw it parked in front of the offices and on the football ground.

MR RICHARD: Now how far from your office was the Mercedes? Can you estimate the distance?

MR NTANTISO: I cannot estimate in terms of metres because I don't know much about such measurements.

CHAIRPERSON: Can you point it out a distance in this room here?

MR NTANTISO: I don't want to commit myself because this incident took place some time ago.

MR RICHARD: Was it near or far?

MR NTANTISO: I think it was nearer, much nearer.

MR RICHARD: Thank you. Now what time of the afternoon did the shooting happen?

MR NTANTISO: I do not know but I think it was when he was preparing to leave.

MR RICHARD: Was that late afternoon or home time or just after lunch?

MR NTANTISO: It was in the afternoon.

MR RICHARD: Late afternoon, home time?

MR NTANTISO: Yes, home time.

MR RICHARD: Now if I ask you specifically, you've already given a description, what did you see the deceased wearing?

MR NTANTISO: I cannot remember.

CHAIRPERSON: Didn't you say he was wearing a uniform? I think that was my notes, there was mention made of them saying uniforms?

MR RICHARD: Yes.

MR NTANTISO: I didn't say that Van Wyk was in a khaki uniform but his two colleagues were wearing khaki clothes.

CHAIRPERSON: Yes my notes say:

But he didn't mention what the person who came in a Mercedes Benz was wearing.

MR RICHARD: Now if I put to you as a matter of fact and we can prove it if the need arise, that the deceased was wearing a blue worker's overall. Would you dispute that?

MR NTANTISO: I cannot dispute that because I cannot remember that.

MR RICHARD: Now you make a statement. You say the deceased had two colleagues. Now please tell us exactly why you say the other people were his colleagues?

MR NTANTISO: I am saying that because when he arrived he went straight to them and talked to them.

MR RICHARD: Now if I say he was there all day, what time do say he arrived?

MR NTANTISO: I've already said that I can't remember the time.

CHAIRPERSON: I think that from what he says it must be inferred that it was sometime either late morning or after that because he only arrived at the PAC offices in late morning, he said.

MR RICHARD: Well, can you give us some indication as to when you say you saw the deceased arrive?

MR NTANTISO: I'm trying to say that he came after these two white men who were in khaki clothes.

MR RICHARD: And what did he do then, after he spoke to these two people, according to your version?

MR NTANTISO: They started working with their lorries.

MR RICHARD: What were they doing with their lorries?

MR NTANTISO: I was not very much interested and I was not interested in all what they were doing.

MR RICHARD: But when you say they were working with their lorries, that's what you've said. What were they doing with their lorries?

MR NTANTISO: Their machine was on, the machine that you referred to was on and I don't know what is it that they were doing.

MR RICHARD: And how long was the deceased busy with his machines?

MR NTANTISO: I cannot recall.

MR RICHARD: I'll put it to you that in fact a Mr Maputa will say that he was busy for a long time with this machine all day? Do you dispute that?

MR NTANTISO: Do you want to say that we shot this person as he arrived or you want to say that we shot at this person as he was busy working?

MR RICHARD: Sir, I don't answer your questions. You answer my questions. My question was, do you dispute the statement that there is direct evidence available that he was busy with his drilling machine all day, for a long time?

MR NTANTISO: I did mention that when we shot at him it was during the time when he was about to leave.

MR RICHARD: That is not an answer to my question. My question to repeat it for the third time is do you dispute the statement that the deceased was busy with the drilling machine for a long time, in fact most of the day?

MR NTANTISO: I cannot dispute that.

MR RICHARD: And then it closed from that answer that it was patently and clearly obvious to anyone in that environment that he was busy with the drilling machine and that it was a matter of easy and ordinary observation to see it. The machine was making a big row and it was obvious to everyone? Do you dispute that?

MR NTANTISO: Which one?

MR RICHARD: My proposition is, do you dispute that if a man was busy with that machine most of the day, climbing in and out of the hole on this hoist, it would have been easy for anyone who had any ears and eyes to see, to see what he was doing?

MR NTANTISO: I want to say he was busy with the other people that he was working with there.

MR RICHARD: And you also said that you weren't very interested in what he was doing?

MR NTANTISO: Yes, I was not interested because I didn't even know what he was doing there.

MR RICHARD: Now what made you think that the deceased was likely to attack your office?

MR NTANTISO: As I have indicated that two white men came before him and then he later came and I became suspicious because there was an attack before that. Mbendalosa's children who were attacked by SADF members and they could do anything, they had so many tricks, they could even come closer to our offices so that they could manage to attack our offices.

MR RICHARD: Was the deceased alone when he was shot or with other people?

MR NTANTISO: He was with his colleagues, people who were working with him.

MR RICHARD: Who were these people?

MR NTANTISO: I do not know them.

MR RICHARD: Were they black or white?

MR NTANTISO: They were black.

MR RICHARD: Now what made you form the opinion that the deceased posed a threat, as you say he did, to your office? What was he doing to make you fear him?

MR NTANTISO: I've just mentioned about the incident that took place in Mbendalosa's premises in the Transkei. That is the reason that made me not to trust any situation.

CHAIRPERSON: Sorry, if I may just intervene, Mr Richard?

Didn't you say, Mr Ntantiso, that at the time the deceased was shot he was about to leave, his cars were locked in the car and they were trying to get the keys, that he was going to go away and that his other two white colleagues had already left?

MR NTANTISO: I became suspicious in the morning when he was with his three colleagues.

CHAIRPERSON: No, but I mean at the time of the shooting, were you of the impression that he was on his way out?

MR NTANTISO: Yes that is correct.

CHAIRPERSON: Mr Richard?

MR RICHARD: Thank you. Now if we turn to page 27 of the bundle, paragraph 5, you say there:

Do you confirm what you said in your statement?

MR NTANTISO: That is correct.

MR RICHARD: Now, then earlier on in that paragraph you describe the scene of people being around the car. What were they doing?

MR NTANTISO: Some of them were just standing, staring at what was happening there.

MR RICHARD: And what were the others doing?

MR NTANTISO: Most of them were just standing.

MR RICHARD: The ones who weren't just standing, what were they doing?

MR NTANTISO: People that I could see were the people who were standing.

MR RICHARD: Was anyone trying to get keys out of the car? What did you see to make you make that statement?

MR NTANTISO: Yes it is correct, that is why I'm saying when we came it was during the time he was trying to leave because on our arrival I realised that although I cannot remember if it was Van Wyk or somebody else who broke the car window to get the key that was inside the car.

MR RICHARD: Now in your affidavit you say you drove that car away, is that not correct?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now which window was broken, according to your version?

CHAIRPERSON: I didn't hear that, if you could just repeat the question, Mr Richard?

MR RICHARD: The first question was, is it not correct that you drove the car away and he said yes and then I've asked the next question, which window was broken, according to his version.

MR NTANTISO: The window at the back, the very small window at the back.

CHAIRPERSON: The quarter window at the back.

MR RICHARD: On the left or the right?

MR NTANTISO: If I'm not mistaken it was the right window.

MR RICHARD: And now what would you say if I have witnesses who saw the car in the hands of the police after the incident who will swear that there were no windows broken at all?

MR NTANTISO: Those would be the witnesses who would be telling lies.

MR RICHARD: Very well. Now we go back to paragraph 5, the second last - well, it's not the second last sentence, the second last sentence in the first paragraph. There you say under oath:

So you're saying that when you climbed into the car the engine was already running?

MR NTANTISO: Yes.

MR RICHARD: Who had started the engine?

MR NTANTISO: It was Mr van Wyk.

MR RICHARD: Now when he was shot, was he in or out of the car?

MR NTANTISO: He was outside the car, standing next to the door of the car.

MR RICHARD: Why had he got out?

MR NTANTISO: I cannot tell.

MR RICHARD: If I put it to you that the correct version is he had got out and spoken to one of his workers who were drilling holes with him and told them to close the top of the holes so people wouldn't fall into it, would you dispute it?

MR NTANTISO: No, I know nothing about that. I cannot even recall that.

MR RICHARD: Did he talk to people while he was out of the car?

MR NTANTISO: I cannot recall.

MR RICHARD: Now where were you when he was standing next to the car?

MR NTANTISO: I was standing next to the car door.

MR RICHARD: Now did he get shot before you got into the car or after you got into the car?

MR NTANTISO: When he was being shot at I jumped into the car.

MR RICHARD: If I understand your answer you're saying he was shot while you were getting into the car. Is that your answer? Not before or after?

MR NTANTISO: When he was being shot or after being ...(intervention)

INTERPRETER: Sorry, I'd like to get it from the witness first before interpreting?

CHAIRPERSON: Sorry, Mr Ntantiso, if you could just repeat your answer please for the translators?

MR NTANTISO: I got into the car after he was shot.

MR RICHARD: I put it to you that it's a different answer to what you've just given as a question before? Then you said ...(intervention)

CHAIRPERSON: My notes are, is that:

MR RICHARD: Which of the two answers is correct?

MR NTANTISO: I am trying to explain that when he was being shot at I jumped into the car and then you are asking me again at what time did I get into the car.

CHAIRPERSON: Yes, there is a process of getting into the car and being in the car.

MR RICHARD: Right, if we go back to paragraph 5, at page 27, there's a sentence which says:

CHAIRPERSON: Sorry, where about is that?

MR RICHARD: It's ...(intervention)

CHAIRPERSON: Oh yes, I see it there, sorry.

In that one, if I read that and interpret it correctly, you were already behind the wheel when the shooting happened?

CHAIRPERSON: Maybe your Afrikaans is better than mine, Mr Richard, but my - is he saying that he said that after he was sitting or was this a pre-plan?

MR RICHARD: I understood that Chairperson - I'll just reread it:

That's how I've interpreted it.

CHAIRPERSON: Yes, alright.

MR RICHARD: Now in your affidavit you say that's what happened, you were behind the wheel already when Tshabalala shot Mr van Wyk?

MR NTANTISO: I think it's the mistake from the person who was writing down the statement.

MR RICHARD: Now tell me, once you drove the car away, where did you go to? How far away did you take the car, where did you take it to?

MR NTANTISO: I went to park the car at Zone 4.

MR RICHARD: And then did you turn the car off then? You had the keys?

MR NTANTISO: Yes I switched the car off.

MR RICHARD: And when did you try and turn on the car again?

MR NTANTISO: In the evening.

MR RICHARD: And what happened?

MR NTANTISO: It couldn't start.

MR RICHARD: Do you know why it couldn't start?

MR NTANTISO: If I'm not mistaken I think the problem was with the immobiliser and the secret switch.

MR RICHARD: That is quite correct. I can tell that I also have a witness that will say, if need be, that this particular Mercedes had a very particularly unique immobiliser which meant that you had to put one finger on one contact and another finger on another contact to activate the circuit and that unless you knew what you were doing you would never start the car and for that reason you in fact pulled out the wires under the dashboard to try and hot wire it. Would you dispute that?

MR NTANTISO: No, we connected one wire to the battery and the other one to the coil and then the car could start thereafter.

MR RICHARD: But what it also means is that Mr van Wyk had had to get into the car to start it before he was shot and get out again. Would you dispute that? And that's in fact what you saw him do?

MR NTANTISO: I do not know that, we did not know that the car had an immobiliser.

MR RICHARD: Do you dispute that to start the car Mr van Wyk first got into the car, started the car and then got out again before he was shot and you saw it, you were standing next to the car?

MR NTANTISO: As I have indicated that when this was happening, the car was on or rather idling.

MR RICHARD: Is it not correct that you said you were standing next to the car?

MR NTANTISO: Yes, that is true.

MR RICHARD: And you were watching what was happening?

MR NTANTISO: Yes.

MR RICHARD: Now I say to you that on the basis of what you saw and on the evidence that I can lead, if it's necessary of the immobiliser, it meant that you must have seen him get into the car and out of the car and started while inside?

MR NTANTISO: I cannot recall whether he started the car as I was standing there and I cannot see him operating, doing anything or fiddling with the secret switches or whatever.

MR RICHARD: Was he inside the car when he started the car?

You were standing there watching him, you were about to steal the motor car and attack him according to your version?

MR NTANTISO: I cannot recall, this incident took place some time ago.

MR RICHARD: And that would mean that you're not in a position to contradict a witness who would gave a version that it was necessary to do that to start the car, in other words to climb into the car, activate the car by getting rid of the ...(intervention)

MR NTANTISO: I cannot dispute that.

MR RICHARD: And that means, the fact that you didn't see it is simply that you can't remember it because it's so long ago?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now while you were getting into the car or in the car, where was Mr Tshabalala.

MR NTANTISO: They were retreating on foot as planned but I was going to use the car and they were going to walk.

MR RICHARD: We know ...(intervention)

CHAIRPERSON: Sorry, Mr Richard, if I may once again just intervene briefly before I forget?

MR RICHARD: Yes Chairperson.

CHAIRPERSON: You say that they were retreating on foot according to plan. When did you actually formulate the plan to steal the car?

MR NTANTISO: The stealing of the car was not planned but we only planned that we were going to kill Mr van Wyk and his colleagues.

MR RICHARD: When was that plan formulated?

MR NTANTISO: When he was still busy there on the football ground.

MR RICHARD: Before I go to that, where was Mr Tshabalala standing when he shot Mr van Wyk?

MR NTANTISO: He was next to me, he was in front of me.

MR RICHARD: How far away?

MR NTANTISO: Nearer, much nearer.

MR RICHARD: One metre, two metres?

MR NTANTISO: I do not want to commit myself but he was much nearer.

MR RICHARD: Was he distance of one of the tables or half the table?

MR NTANTISO: He was just a the distance where my legal representative is.

CHAIRPERSON: That is immediately next to him. There's a matter of centimetres between the two of them, less than 30 centimetres between the two of them.

MR NTANTISO: And that would mean that Mr Tshabalala was right next to you at the right hand door of the car?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now how far away from Mr Tshabalala was Mr van Wyk?

MR NTANTISO: He was not far but I cannot say how many metres.

MR RICHARD: Again, if we use the table as a measure, was he one table away, two tables away, across the room?

MR NTANTISO: He was much nearer though I cannot say, I cannot estimate but he was much nearer.

MR RICHARD: Can you point between yourself and the interpreters? Point a distance that Mr van Wyk was away?

CHAIRPERSON: This is just an approximate, Mr Ntantiso, it's not an exact amount, we just want an estimation of the distance between Mr Tshabalala and the deceased at the time the deceased was shot?

MR NTANTISO: I do not think he was beyond that line. There's a line on the floor.

CHAIRPERSON: Is this the red line on the floor?

MR NTANTISO: Yes, the red line on the floor. I cannot say he was beyond that point.

CHAIRPERSON: That's - I don't know if counsel agrees, about three metres? Three and half metres?

MR RICHARD: Three to three and a half metres.

CHAIRPERSON: Yes.

MR RICHARD: Now did you see Mr van Wyk being shot? Did you witness the shot?

MR NTANTISO: I saw him falling and screaming.

MR RICHARD: Now where in his body did the shoot gun blast hit him? Was it on his head, his chest, where?

MR NTANTISO: In the leg.

MR RICHARD: Now to help you I can say that according to those who identified him after his death, there was a tourniquet about mid-thigh which is above the wound. So would you agree when you say in the leg he was shot somewhere below the mid-thigh?

MR NTANTISO: I cannot dispute that.

MR RICHARD: Now while you were in Transkei, you received weapons training, is that correct?

MR NTANTISO: Yes that is correct.

MR RICHARD: Now did that entail being given the opportunity to practise using the weapon?

MR NTANTISO: Yes that is correct.

MR RICHARD: And Mr Tshabalala was given the same training?

MR NTANTISO: Yes.

MR RICHARD: So wouldn't you agree with me that a distance of some three, three and a half metres, if someone was shot below mid-thigh with a shotgun, that was a deliberately aimed shot?

MR NTANTISO: That is correct.

MR RICHARD: Now you said to me that you had decided earlier that day to kill Mr van Wyk and his other so-called colleagues?

MR NTANTISO: That is correct.

MR RICHARD: Now if you intended to kill a man would you shoot him in the lower leg?

CHAIRPERSON: The lower thigh.

MR RICHARD: The lower thigh.

MR NTANTISO: Let me explain this. As he was being shot at he was not the only person there at the scene. There were other people there from the township. I cannot answer for Tshabalala because he was the one who was pulling the trigger, he was the one who knew how did it come about for him to shoot him in the lower thigh.

MR RICHARD: My question is that if you shoot at a man to kill somebody like you had decided to do, do you shoot him in the lower thigh between the thigh and the knee?

MR NTANTISO: He is asking what you would do if you were shooting to kill somebody, would you shoot him just above the knee?

MR NTANTISO: It depends on the environment and you'll have to consider the safety of the other people who are not your targets.

CHAIRPERSON: Sorry, Mr Richard.

This pump gun, what sort of gun was it? Was it shotgun? What sort of bullet did it shoot?

MR NTANTISO: Pellets. It produced pellets.

CHAIRPERSON: So it was a shotgun with a pump action.

MR RICHARD: Right. Thank you Chairperson.

Now where in the Transkei were you trained. In which town or village?

MR NTANTISO: In Port St Johns.

MR RICHARD: And for how long were you there for training?

MR NTANTISO: Two months.

MR RICHARD: Now what were the various things that you were trained in?

MR NTANTISO: How to operate a firearm.

MR RICHARD: And what else?

MR NTANTISO: How to administer handgrenades.

MR RICHARD: And what else?

MR NTANTISO: Respect discipline.

MR RICHARD: And what tactics were you taught. To use your words "fight the system in place, at the time." What were the tactics you were taught to use?

MR NTANTISO: The tactics to fight the system was to attack his instrument or subject so that they could get the message.

MR RICHARD: To attack the systems instruments. What are the system's instruments?

MR NTANTISO: Those were the people who had voted for that government or the white people.

MR RICHARD: Now I'm going to separate that into two. The people who had voted the government into power, in your mind at the time who had voted the government into power?

MR NTANTISO: white people.

MR RICHARD: Did that mean that every white person had voted the government into power?

MR NTANTISO: He had done that by choice. Whoever did not vote for that government was by choice.

MR RICHARD: I don't understand your answer. Are you saying that white people had a choice to vote for the government or against the government and some voted for the government and some voted against the government. Is that your answer?

MR NTANTISO: All the whites were represented in the parliament, they had their own representatives in parliament, all of them.

MR RICHARD: So that means that in your mind there was no such thing as a white person who didn't vote for the government?

MR NTANTISO: Any person who wouldn't vote, that was his right but all the white people were given the right to vote.

MR RICHARD: Now do you agree with me that some white people voted for the government and some didn't vote at all and some voted against the government?

MR NTANTISO: I'm getting that for the first time from you, Sir.

MR RICHARD: Tell me, prior to 1994, is it not true that there were white people who opposed the government?

MR NTANTISO: Yes that is correct.

MR RICHARD: And some of the people who opposed the government used their vote as a method of opposition - one of the methods, in other words by not voting or spoiling their paper or voting for another party besides that party?

MR NTANTISO: If you want us to talk about the 1994 situation about the white people who did not vote for the National Party, most white people who joined the ANC joined it because they wanted to protect their business interests.

MR RICHARD: I'm talking about before 1994, I'm not talking about 1994.

MR NTANTISO: I do not know anything that was taking place in the parliament before 1994 because at the time I was fighting in the jungle, I did not have any representative in parliament.

MR RICHARD: Do you say that Sebokeng is the jungle?

MR NTANTISO: When I say that was in the jungle, I'm trying to say that Pan Africanist Congress and the ANC were in the jungle together with AZAPO.

MR RICHARD: Now we are looking at this question. Why did you shoot Mr van Wyk?

MR NTANTISO: It is solely because Sabelo Pama declared 1993 as the Year of the Great Storm.

MR RICHARD: Be careful, you have said it is solely because Mr Pama declared 1993 as the Year of the Great Storm. Is that your answer, is that the only reason why you shot Mr van Wyk?

MR NTANTISO: Let me explain this concept. If 1993 was declared as the Year of the Great Storm, the meaning was like anyone who felt oppressed should direct violence to the government by all means.

MR RICHARD: Now on that rationale, you've agreed that some white people didn't support the government?

MR NTANTISO: What people are those?

MR RICHARD: Are you saying all white people supported the government prior to 1994? The old government?

MR NTANTISO: Even those who were opposing that government, they were killed.

MR RICHARD: So you were prepared to kill your allies simply because they were white?

MR NTANTISO: The whites were opposing the Nationalist government? Are you talking about those?

MR RICHARD: Yes.

MR NTANTISO: I couldn't kill them because they were also fighting in the liberation struggle, they were also fighting for freedom.

MR RICHARD: Now when you saw a man drilling holes to build a sports stadium, how do you know which way he voted, whether he supported the government or not?

MR NTANTISO: First of all I didn't even know what his intention was by drilling the holes. All I knew was that the government was in power, that particular person was benefiting in that government.

MR RICHARD: Then your answer is that you wanted to shoot Mr Pama to kill him ...(intervention)

CHAIRPERSON: Mr van Wyk.

MR RICHARD: Mr van Wyk, for no reason other than that he was white?

MR NTANTISO: No, when he was killed we were trying to overthrow the then government.

MR RICHARD: How would killing one white man who is alone in Sebokeng at the time.

JUDGE MOTATA: I think you should, Mr Richard, ask that question bearing in mind what he said earlier, that one of the tactics was to kill these people even if they are individuals. That's the tenor of his answer, that to send the message. Now I don't think it would be in context if you were to say one white man because he has put that into context that that would send a message to the government.

MR RICHARD: Chairperson, with the greatest of respect, well that might be a construction of his answer. There are other constructions which are equally probable and apparent and I would like to hear what the witness says for himself?

CHAIRPERSON: Yes, just repeat the question.

MR NTANTISO: Please repeat the question, Sir?

MR RICHARD: Now my question is simple. Why did you kill Mr van Wyk?

MR NTANTISO: When Van Wyk was killed the intention was to overthrow the then government.

MR RICHARD: My next question is how did you see the killing of Mr van Wyk would achieve that end?

MR NTANTISO: He was not the only target there were also other people. For instance the St James incident, Helderberg Tavern and even his colleagues, they had a narrow escape because they were not present during the shooting.

ADV SANDI: Sorry Mr Richard, if I could just come in here?

MR RICHARD: Certainly Chairperson.

ADV SANDI: Why did you not attack Mr van Wyk at the time his other white colleagues were also there?

MR NTANTISO: They couldn't waste time there, they just came for a short while and they left. For us to shoot Mr van Wyk later, it is because we were waiting for the other two to come back so that we could attack them altogether but unfortunately the other two did not come back, that is why we decided to attack at least Mr van Wyk.

JUDGE MOTATA: Now the truck that was there drilling a rig, who was operating the rig, who was operating that truck?

MR NTANTISO: I have no knowledge.

JUDGE MOTATA: Did you not see people around that truck, whether white or black?

MR NTANTISO: The only white there was Mr van Wyk.

JUDGE MOTATA: Are you saying that the only person you saw was Mr van Wyk?

CHAIRPERSON: He said the only white person there was Mr van Wyk.

JUDGE MOTATA: Oh, sorry. Thank you. You may proceed Mr Richard.

MR RICHARD: Thank you Chairperson.

ADV SANDI: Sorry, if you don't mind Mr Richard?

Just explain here, was he - Mr van Wyk, was he assaulted before he was shot?

MR NTANTISO: No.

ADV SANDI: Thank you.

MR RICHARD: Now if you turn to page 31 of the bundle, you'll see that amongst the things that were removed was one brown wallet and one men's wristwatch. Now where were the wristwatch and the wallet found?

MR NTANTISO: They were in the car next to the gear lever.

MR RICHARD: And when you drove the car and turned it off and got out did you take the watch and the wallet out with you?

MR NTANTISO: I saw these articles when I was packing the car and I took them.

MR RICHARD: And how much money was in the wallet?

MR NTANTISO: There was no money, it was just a wallet and the wristwatch.

MR RICHARD: And where did you put the wristwatch once you took it?

MR NTANTISO: I kept it for some time.

MR RICHARD: For how long?

MR NTANTISO: For that night because the following day I was arrested and then it was confiscated.

MR RICHARD: In other words you had appropriated the watch to yourself?

MR NTANTISO: No, not at all.

MR RICHARD: What were you going to do with the watch?

MR NTANTISO: I was going to give it to my commander because we were about to go to Transkei with the car.

MR RICHARD: Who was your commander?

MR NTANTISO: Judge Makakuna.

MR RICHARD: Where was Judge Makakuna?

MR NTANTISO: We were going to meet in the Transkei at the funeral of Mr Mbendalosa's children.

CHAIRPERSON: That was held in Umtata, Mr Richard.

MR RICHARD: Thank you.

Thank you Chairperson, I think I've more or less concluded but before concluding ...(intervention)

CHAIRPERSON: You can consult.

MR RICHARD: No further questions.

CHAIRPERSON: Thank you Mr Richard. Mr Mapoma, do you have any questions that you would like to put to the applicant?

MR MAPOMA: None Chairperson.

CHAIRPERSON: Mr Mbandazayo, do you have any re-examination?

MR MBANDAZAYO: None Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions you would like to put to the applicant?

JUDGE MOTATA: Just one Chairperson, thank you.

Mr Ntantiso, the next day where were you driving the car to because it was parked at Zone 12. When you took it from Zone 12 where were you taking the car to?

MR NTANTISO: We took it that very same day, parked it at Everton on that very same day after the incident.

JUDGE MOTATA: Didn't I perhaps make a mistake - I may have, that you said you took it to Zone 12, Sebokeng?

MR NTANTISO: I took it Zone 12 during the day and then in the evening we took the car to Everton.

JUDGE MOTATA: To who at Everton? I'll tell you why I'm asking you that because somewhere in the papers I read that you were going to use it as transport to attend a funeral in the Transkei. In Umtata in the Transkei?

MR NTANTISO: Where I had initially parked the car in Zone 12 there was no garage, it was the open space and at least in Everton it was protected and we would wait, it would wait there until the day of leaving for the funeral comes.

JUDGE MOTATA: Where precisely in Everton where it would be protected?

MR NTANTISO: Next to the graveyard.

JUDGE MOTATA: Is there a garage at the graveyard, because at Zone 12 there was no garage?

MR NTANTISO: At that stand or site there was a garage.

JUDGE MOTATA: Who lived there?

MR NTANTISO: It was Linda's relative.

JUDGE MOTATA: Was it arranged with Linda's relative that you would bring a vehicle, motor vehicle to be parked in their garage?

MR NTANTISO: Linda told us that it was a good idea to take it there. We did not know whether he had prearranged that with the relatives or not.

JUDGE MOTATA: Did you reach Everton?

MR NTANTISO: Yes.

JUDGE MOTATA: Parked it in the garage?

MR NTANTISO: Yes.

JUDGE MOTATA: Thank you Chairperson, I've got no further questions.

CHAIRPERSON: Mr Sandi, do you have any questions you'd like to ask?

ADV SANDI: Yes Chairperson, maybe one or two.

CHAIRPERSON: Was this your first operation as a member of APLA?

MR NTANTISO: Except for transporting guns or weapons, it was the first operation there in killing of the settler.

ADV SANDI: Just explain something to me here. Did you see the deceased as a threat? Did he pose a danger to you or anyone in that vicinity?

MR NTANTISO: The manner in which the three of them came, we saw them as a threat in our office because the PAC offices those days were subject of frequent attacks and even the PAC members were being attacked by the police and SADF members.

ADV SANDI: Is that the reason why you attacked Mr van Wyk?

MR NTANTISO: This is just one of the reasons for us to attack him.

ADV SANDI: If you did not feel that he was posing a danger to you and your PAC offices, would you still have attacked him?

MR NTANTISO: Yes we were still going to attack him.

ADV SANDI: Thank you. Thank you Chairperson, no further questions.

CHAIRPERSON: Mr Mbandazayo, any questions arising out of questions that have been put by Members of the Panel?

MR MBANDAZAYO: None Chairperson.

CHAIRPERSON: Mr Richard, any questions arising?

MR RICHARD: None Chairperson.

NO QUESTIONS BY RICHARD

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

NO QUESTIONS BY MAPOMA

CHAIRPERSON: Thank you Mr Ntantiso, that concludes your evidence. You may stand down. If you would just swop seats with Mr Tshabalala?

MR MBANDAZAYO: Chairperson, Mr Tshabalala is Sotho speaking.

CHAIRPERSON: Mr Tshabalala, do you have any objection to taking the oath or would you prefer to make an affirmation?

AMOS TSHABALALA: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Mr Tshabalala, is it correct that you were born in Gauteng on the 1st March 1973?

MR TSHABALALA: Correct, Chairperson.

MR MBANDAZAYO: How far have you gone at school?

MR TSHABALALA: Standard 8, Chairperson.

MR MBANDAZAYO: Can you tell the Committee when did you join PAC?

MR TSHABALALA: In 1989.

MR MBANDAZAYO: Will I be correct to say that you joined PAC through Azania?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Now when did you become a member of the Task Force of APLA?

MR TSHABALALA: In 1990.

MR MBANDAZAYO: Did you undergo any training as a Task Force member?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: When did you undergo that training and where?

MR TSHABALALA: In 1990 in Transkei.

MR MBANDAZAYO: Where exactly in Transkei?

MR TSHABALALA: I don't know the locality of that place Chairperson.

MR MBANDAZAYO: What were you trained in?

MR TSHABALALA: ...(inaudible)

ADV SANDI: Are you saying that you don't know the name of the place where you were trained in the Transkei?

MR TSHABALALA: I'm not able to recall the name of the place, Chairperson.

ADV SANDI: Where about is it in the Transkei? Near Umtata, Port St Johns? Where about? Which town in the Transkei?

MR TSHABALALA: It is near Umtata, Chairperson.

ADV SANDI: Thank you.

INTERPRETER: May you please repeat your question, Sir?

CHAIRPERSON: Mr Mbandazayo, if you could just repeat your last question about the training?

MR MBANDAZAYO: Yes Chairperson.

What were you trained in when you were trained in the Transkei and how long were you trained?

MR TSHABALALA: I was trained in the use of weapons Chairperson, again in the defence of the community.

MR MBANDAZAYO: How long did your training take place?

MR TSHABALALA: Two months, Chairperson.

MR MBANDAZAYO: Who trained you in Transkei?

MR TSHABALALA: Judge Makakula.

MR MBANDAZAYO: On your coming back from Transkei, what did you do?

MR TSHABALALA: I went home.

MR MBANDAZAYO: What were your activities as a Task Force member at home?

MR TSHABALALA: To enhance the APLA objectives.

MR MBANDAZAYO: Now am I correct to say that you were arrested whilst you were already integrated in the South African National Defence Force?

MR TSHABALALA: That is correct, Chairperson.

MR MBANDAZAYO: When did you join the South African National Defence Force before you were arrested?

MR TSHABALALA: In 1995.

MR MBANDAZAYO: Were you arrested the same year?

MR TSHABALALA: I was arrested in 1996.

MR MBANDAZAYO: Now Mr Tshabalala, did you listen to the evidence of the first applicant?

MR TSHABALALA: Yes Chairperson.

MR MBANDAZAYO: Do you confirm the evidence of the first applicant in as far as it relates to you?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Do you also want the evidence of the first applicant to be part of your evidence?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Now do you confirm that on that day in question you were armed with a shotgun?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Do you confirm that you were the person who shot Mr van Wyk?

MR TSHABALALA: Yes.

MR MBANDAZAYO: Can you tell the Committee why did you shoot him?

MR TSHABALALA: I shot the deceased after I received instructions from Mr Ntantiso.

CHAIRPERSON: Sorry, what was the relationship between you and Mr Ntantiso in your capacities as members of the Task Force?

MR TSHABALALA: He was my senior.

MR MBANDAZAYO: Mr Tshabalala, there is evidence that you shot the deceased above the knee. Can you tell the Committee why did you shot him if you were shooting to kill him, why did shoot him above the knee?

MR TSHABALALA: Because the mode of the weapon I had, if you shoot, the bullet would disperse therefore I would shoot even people who were innocent or who were just near the place.

CHAIRPERSON: Sorry, I can't understand that. Are you saying that you deliberately aimed low because you knew that the bullets would spread? I mean the pellets would spread?

MR TSHABALALA: That is correct, Chairperson.

MR MBANDAZAYO: Now what was your intention? Was your intention to kill him or were you to injure him?

MR TSHABALALA: My intention was to kill him.

MR MBANDAZAYO: When you shot him at that particular place did you think that is going to kill him?

MR TSHABALALA: The way I knew the firearm I used, I believed that I would kill him.

MR MBANDAZAYO: Now the victims, especially the sons of the deceased are here. What do you say to them?

MR TSHABALALA: To the sons of the deceased I would say I apologise because the deceased was at the wrong place at the wrong time because it was during the war situation.

MR MBANDAZAYO: That is all, Chairperson. Thank you.

ADV SANDI: I'm afraid I'll have to ask you to explain that. You say the deceased was at the wrong place at the wrong time. Do you mean to say that if you had encountered the deceased at some other place at some other time you wouldn't have attacked him?

MR TSHABALALA: In that year we were engaged in war, therefore he was there at that particular place at that particular time.

RE-EXAMINATION BY MR MBANDAZAYO: Chairperson, just to - just an oversight. There is a second incident in which you are applying for amnesty.

Can we, Mr Tshabalala go to that incident that where you were arrested at the roadblock with arms, can you tell the Committee about this?

MR TSHABALALA: It was in 1994, we were campaigning for 1994 general elections. We worked from Tembisa from the campaign. When we returned we were arrested with arms. We were together with the youth president of Azania and that is - his name is Masotu Batani.

MR MBANDAZAYO: What were you specifically doing yourself with Masotu Batani?

MR TSHABALALA: Mr Batani, as he was the president of the youth wing, it was our duty or our responsibility that our leadership was protected at all times during that time.

MR MBANDAZAYO: Will I be correct to say that you were a bodyguard of Masotu Batani at the time?

MR TSHABALALA: Correct Chairperson.

CHAIRPERSON: What firearms and ammunition were found in your possession when you were arrested?

MR TSHABALALA: We had 9 mm, 7.65, that is R1 on our person and .38 Special.

CHAIRPERSON: And the relevant ammunition to be used by those guns?

MR TSHABALALA: That is correct, Chairperson.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson, that's all.

CHAIRPERSON: Mr Richard, any questions that you would like to put to the applicant?

CROSS-EXAMINATION BY MR RICHARD: Yes Chairperson, with your leave.

Mr Tshabalala, at page 1 of the bundle, I see in your application you record that you were born in Sebokeng and you give your address still as Zone 12 Sebokeng. In other words, is it correct, have you lived in Sebokeng all your life apart from the time that you spent in jail?

MR TSHABALALA: That is correct, Chairperson.

MR RICHARD: Now are you familiar with the environment in and around the premises described as the PAC's office?

MR TSHABALALA: Yes I do.

MR RICHARD: And you know it well?

MR TSHABALALA: That is correct.

MR RICHARD: Now you've heard the descriptions of the football field and the drilling rig. Do you confirm with what Mr Ntantiso has said?

MR TSHABALALA: Yes I do agree with him.

MR RICHARD: In other words you confirm that you saw this drilling rig with people working around it and near it from the time you arrived that day onwards?

MR TSHABALALA: That is correct.

MR RICHARD: Now I make the observation that at the time of this incident you were 20, is that not correct?

MR TSHABALALA: That is correct.

MR RICHARD: Now ...(intervention)

CHAIRPERSON: Sorry, while you're busy Mr Richard?

This Task Force, did you work in units?

MR TSHABALALA: That is correct.

CHAIRPERSON: And who was the commander of the unit?

MR TSHABALALA: It was Ntantiso.

CHAIRPERSON: That's the other applicant, your co-applicant?

MR TSHABALALA: That is correct.

CHAIRPERSON: Mr Richard?

MR TSHABALALA: Thank you Chairperson.

At page 13 of the bundle your co-applicant, Mr Ntantiso, says at the paragraph at the top of the page:

Now do you identify yourself with that statement and that you thought that they, whoever they were, were attacking your office?

MR TSHABALALA: Yes, as a soldier I had to agree with the instructions from him therefore I do agree with what he has stated here.

MR RICHARD: I am not asking you for whether you agreed or disagreed with your instructions. I'm asking a far simpler question. Did you, as your commander states here, at that time think your offices were about to be attacked?

MR TSHABALALA: That is correct.

MR RICHARD: And that is what you believed?

MR TSHABALALA: Yes.

MR RICHARD: Now we go back to the scene of the events that day. According to your recollection, what time of the day did you arrive at the office?

MR TSHABALALA: It could be around quarter to twelve.

MR RICHARD: And at that time were you aware of the drilling machine?

MR TSHABALALA: Yes.

MR RICHARD: And at that time did you observe a white man working amongst other men in and around and with the drilling machine?

MR TSHABALALA: Yes.

MR RICHARD: And did you observe a Mercedes very near the PAC's office?

MR TSHABALALA: Yes I did.

MR RICHARD: Now did you see the white man there all afternoon?

MR TSHABALALA: I saw him at the time we arrived there until we attacked him.

MR RICHARD: What were your duties that afternoon?

MR TSHABALALA: My task was to shoot him.

MR RICHARD: Other than to shoot him, what were your duties while you were at the PAC's office that day?

MR TSHABALALA: I didn't have any task for that day.

MR RICHARD: Weren't you supposed to stand guard and protect your comrades, watch out and be vigilant?

MR TSHABALALA: This thing happened when we arrived there so I wasn't able to do other tasks as well at the same time.

MR RICHARD: I don't understand your answer. "This thing happened when we arrived there". What was this thing?

MR TSHABALALA: Because we were saying that I was supposed to guard and look out for other comrades so what I'm saying is I was not able to do that at the same time and also shoot that white man.

MR RICHARD: We know that you arrived at some time before twelve. We also know that the shooting happened more than three hours later. Is that not correct?

MR TSHABALALA: I do not agree with you, Sir.

MR RICHARD: When did the shooting happen?

MR TSHABALALA: It didn't take us long.

MR RICHARD: After you ...(intervention)

CHAIRPERSON: Could you give us an estimation? You estimated that you arrived back at the office at about quarter to twelve. What time do you estimate the shooting took place?

MR TSHABALALA: It could be around 1 o'clock.

MR RICHARD: Were you here when your co-applicant gave evidence?

MR TSHABALALA: Yes.

MR RICHARD: What time did he say the shooting happened?

MR TSHABALALA: I don't remember what he said.

MR RICHARD: It was not at 1 o'clock, it was later.

CHAIRPERSON: He said that the shooting took place the late afternoon at go home time, I think it was referred to as.

MR TSHABALALA: Well I cannot explain that because this thing happened many years ago so I don't know why he said that.

MR RICHARD: Are you right or is he right?

MR TSHABALALA: I do not remember well therefore I cannot say who is right between the two of us.

MR RICHARD: Well I will put it to you that there are numerous other eye witnesses who can be called to the hearing if need be who will say that it happened at a time well after 3 o'clock in the afternoon. Would you dispute that evidence which is consistent with your commanders?

MR TSHABALALA: That is why I say I do not remember well therefore I would not disagree with them.

MR RICHARD: So fine, so that your answer that it happened around 1 o'clock is then wrong? Isn't it?

MR TSHABALALA: I would agree.

MR RICHARD: Now I go back to what my first proposition on this line was. You arrived at quarter to twelve or somewhere there about in the morning?

MR TSHABALALA: Yes.

MR RICHARD: Before you decided to do anything or were told to do anything with the deceased, what would you have done for the rest of the day while at the office? What were your ordinary activities at the office? What were your ordinary duties?

MR TSHABALALA: I was going to attend the meeting that day.

MR RICHARD: With who were you going to meet?

MR TSHABALALA: We were going to have a meeting with other units of the Task Force.

MR RICHARD: Did you meet with other members and units?

MR TSHABALALA: No we did not.

MR RICHARD: Then what did you do for those three and more hours while at the offices? What did you do?

MR TSHABALALA: After our arrival there we went to the office and we met there at the office and then I went to the cafe and then when I came back from the cafe we left. That's when we went to attack the deceased.

MR RICHARD: Did you see the drilling machine busy all afternoon? You agreed that it made a big noise, big row, you couldn't miss it?

MR TSHABALALA: Yes that is correct.

MR RICHARD: Now you talk of two other white men. Where were they for those three or more hours, more hours, not only three hours? What were they doing?

MR TSHABALALA: They arrived and they had some discussions with the deceased and they left thereafter.

MR RICHARD: Now long were they there for?

MR TSHABALALA: It wasn't that long it could be five minutes.

MR RICHARD: So they were there only for five minutes, is that your answer?

MR TSHABALALA: Yes I would say so.

MR RICHARD: Now do you recall what the deceased was wearing that afternoon?

MR TSHABALALA: No I do not.

MR RICHARD: If I put it to you that he was wearing a blue workman’s overall would you dispute that?

MR TSHABALALA: No, I won't disagree with you.

MR RICHARD: Now you've agreed with me that you had three and more hours to watch what the deceased was doing. What did he do in that period that was threatening to you or the office?

MR TSHABALALA: I have explained that when I received my instructions from my superior I have to carry those instructions. So when he told me that these people may attack us I had to agree with him because in those days members of the PAC were being attacked by the police so we regarded him as one of the people who could endanger us.

MR RICHARD: You've agreed with me that you thought, according to your evidence, that they were attacking "our offices" to quote the words. That's what you say you thought not because you were told to think that. I've asked the next question. Did the deceased do anything specific that you can point to that made you personally believe that you were about to be attacked?

MR TSHABALALA: That is after his two other colleagues had left we became suspicious.

MR RICHARD: What made you suspicious? You've got to be exact and precise. A generalisation is meaningless.

MR TSHABALALA: We did not know what was in their minds because our office was just near the place where they were working.

MR RICHARD: You could see what the man was doing, he was working with the drilling machine and the drilling rig's team, they were busy tending to the machine. Did you find that suspicious?

MR TSHABALALA: No I did not see him working.

MR RICHARD: Well I put it to you that you've already admitted that you saw him working and that you're lying, you change your answers as and when convenient? I put it to you that there was nothing at all suspicious about his behaviour?

MR TSHABALALA: I said to you the machines were working, I could hear the noise, yes. Because you asked me about the machine and I agreed with you that the machine was working.

MR RICHARD: And you admitted in clear, unambiguous terms that you saw him working with the machines? Are you trying to withdraw that answer?

MR TSHABALALA: Maybe you did not understand me.

MR RICHARD: I didn't misunderstand you. I heard you clearly say you saw him working with the machines. That's what your evidence under oath was? There's no misunderstanding.

MR TSHABALALA: What I said is that I could hear the sounds made by the machines.

CHAIRPERSON: So when you arrived at the office, did you see the deceased?

MR TSHABALALA: Yes.

CHAIRPERSON: Yes and you said you also saw him talking for five minutes with two other white men, is that right?

MR TSHABALALA: Yes.

CHAIRPERSON: Now after those two other people left did you see the deceased again before the shooting?

MR TSHABALALA: Yes I did.

CHAIRPERSON: Now where did you see him after that?

MR TSHABALALA: He was at his car.

CHAIRPERSON: What, just sitting in his car? Was this just before the shooting?

MR TSHABALALA: He was trying to get his car keys which were inside his car.

CHAIRPERSON: So are you saying that you didn't see the deceased from the time that those two other white men left until the time that he was trying to get in his car?

MR TSHABALALA: I saw him that time when he - after they have left they went to his car, that's when I saw him.

CHAIRPERSON: And before that, was the first time you saw him when you were speaking to those men? When you arrived at the office we know it's about at least three hours, more than three hours since your arrival at the office until the time he was shot, did you see him at all before then?

MR TSHABALALA: No, that is at the time when we arrived there.

CHAIRPERSON: Mr Richard? Sorry, just one more.

Did you see him near the drilling machine?

MR TSHABALALA: I saw him next to his car.

CHAIRPERSON: I'm asking you did you see him on the football field where the drilling machine was, did you see him near the drilling machine? I'm just asking you, at any stage?

MR TSHABALALA: I saw him next to his car. The car was just next to the field.

CHAIRPERSON: Mr Richard?

MR RICHARD: Thank you Chairperson.

Now one of the propositions with which you have associated yourself with is that I put to your co-applicant the proposition, there are other witnesses available to be called should the need arise which will say that the deceased spent most of that day working with the drilling machine, going in and out of holes a couple of metres deep, taking samples of soil and being pulled by a hoist and working with the drilling machine and the men that helped him with this machine. Would you dispute that evidence is correct?

MR TSHABALALA: I would not dispute that.

MR RICHARD: And in other words there's no need for me to call a witness to say that?

MR TSHABALALA: It is not necessary.

MR RICHARD: Thank you. Now the next proposition I put to you is from where the office is, if someone was fearful of an attack and was keeping a careful outlook at what was happening on the football field they would have been able to see exactly what was going on in and near the drilling machine without any difficulty?

MR TSHABALALA: Yes I do agree.

MR RICHARD: Now I then put it to you that wouldn't it have been natural if you were preparing an attack to have kept a very, very careful lookout as to what was going on not only on the football field but all around your office?

MR TSHABALALA: That is correct.

MR RICHARD: Were you keeping a proper and careful lookout as might be expected if you might be fearful of an attack?

MR TSHABALALA: Like I have already explained that I did go to the cafe.

MR RICHARD: My question is not whether you went to the cafe or not, my question is did you keep a very careful lookout as to what was going on around you that afternoon, that day?

You were scared of being attacked according to your evidence?

MR TSHABALALA: My other comrades were also there the time I wasn't there when I went to the shop, they were also looking around.

MR RICHARD: How long were you at the shop for? Five minutes, ten minutes?

MR TSHABALALA: I could be five minutes.

MR RICHARD: Very well now, we've got it that you agree that sometime well after 3 p.m. the deceased went to his Mercedes along. Do you confirm that?

MR TSHABALALA: Yes.

MR RICHARD: Now according to your version, which we do not accept, you say the keys were locked in the car. Is that your version?

MR TSHABALALA: That is correct.

MR RICHARD: Now for how long did people fiddle around the car to try and get the keys out?

MR TSHABALALA: It was not long, they just broke the window, the took out the keys.

MR RICHARD: Did they just smash the window when they saw the keys were locked in, you know, in two seconds? Did they use a piece of wire?

MR TSHABALALA: They talked to him and thereafter they smashed the window and they took out the keys.

MR RICHARD: So was that a transaction that lasted one minute or five minutes or ten minutes?

MR TSHABALALA: It could be three minutes.

MR RICHARD: And I put it to your comrade that should the need arise I will call a witness which will say that when the car was recovered there were no broken windows? Do you stand by your version that a window was broken?

MR TSHABALALA: Yes.

CHAIRPERSON: Sorry, did you see the window being broken, yourself, with your own eyes? When did you know that a window had been broken?

MR TSHABALALA: Yes I did see it with my eyes.

MR RICHARD: Alright then - sorry Chairperson.

CHAIRPERSON: Continue please.

MR RICHARD: On your version, once the keys were taken out of the car where were they taken out of the car? Were they on the seat, in the ignition, on the back seat?

MR TSHABALALA: Well I don't know where the keys were inside the car.

MR RICHARD: Did you see the keys being taken out of the car? You say you did?

MR TSHABALALA: I saw them smashing the window of the car.

MR RICHARD: Which window was smashed?

MR TSHABALALA: The small window at the back.

MR RICHARD: On the left or the right?

MR TSHABALALA: On the right.

MR RICHARD: Right. Which door was then opened?

MR TSHABALALA: The front door.

MR RICHARD: How did ...(intervention)

CHAIRPERSON: So are you saying that they had long arms or what? They break the window at the back and then they get long arms and open the front door?

MR TSHABALALA: They smashed the window and they opened the big window and then they opened the front door.

MR RICHARD: Very well. Then what happened next, tell us?

MR TSHABALALA: And then the deceased ignited the car and he went out of the car.

MR RICHARD: So I understand that the deceased then climbed into the car, started the car and climbed out the car, is that correct?

MR TSHABALALA: That is correct.

MR RICHARD: Now where were you standing when this all happened?

MR TSHABALALA: I was coming near the car.

MR RICHARD: How far away from the car were you? Please give us an approximate indication?

CHAIRPERSON: If he can't mention a distance, if he can point out a distance? What distance do you want? At the time of the shooting or when?

MR RICHARD: The deceased is climbing in and out of the car and starting the car, where was he? How far away from the car?

CHAIRPERSON: The question is how far away were you from the car when the deceased let's say got out of the car after he had got in and started it. If you could indicate a distance or mention an approximate distance?

MR TSHABALALA: Like Ntantiso has already explained, it could be from where I sit to that red line on the floor.

CHAIRPERSON: The same three to three and a half metres.

MR RICHARD: Now please tell me, Mr Tshabalala, approximately how high does a shotgun stand? Is it this high of the ground or is it this high off the ground?

CHAIRPERSON: The size of your shotgun, if you could indicate how long it was from the tip of the barrel to the end of the stock?

MR TSHABALALA: It can be like I'm indicating.

MR RICHARD: From the floor to the ...(intervention)

CHAIRPERSON: He indicates approximately a metre. I don't know if you agree, Mr Mbandazayo, Mr Richard?

MR RICHARD: I agree with a metre.

CHAIRPERSON: Approximately a metre.

MR RICHARD: Now where as the shotgun when you were standing there?

MR TSHABALALA: It was with me.

MR RICHARD: In your hands?

MR TSHABALALA: Yes. I had a long jacket, it was hidden inside the jacket.

MR RICHARD: And how many other people were there around the car?

MR TSHABALALA: There could be 20 people around the car there.

MR RICHARD: Now once the deceased, Mr van Wyk, got out of the car, how far away from the car did he go?

MR TSHABALALA: He was just next to the car door.

MR RICHARD: Now what were your instructions from Mr Ntantiso? What was the plan?

MR TSHABALALA: He instructed me to shoot him.

MR RICHARD: At what point?

MR TSHABALALA: At that time when we were approaching him.

MR RICHARD: You heard my question. Did he instruct you to shoot him once he was in the car or before he got into the car?

MR TSHABALALA: He didn't explain whether I should shoot him while he was inside or outside the car, he just said I should shoot him.

MR RICHARD: And then what did it mean to you when Mr Ntantiso said to you as he says in paragraph 5 on page 27:

What did that mean to you?

MR TSHABALALA: I do not understand what is written there because the instruction that I got from him was to shoot.

MR RICHARD: Did he tell you when to shoot him?

MR TSHABALALA: At that time we were approaching him, that's when he instructed me to shoot.

MR RICHARD: How far away from him were you when Mr Ntantiso instructed you to shoot him?

MR TSHABALALA: It could be from where I sit to that line, the red line.

MR RICHARD: And at that point Mr van Wyk was already out of the car?

MR TSHABALALA: That is correct.

MR RICHARD: Where was Mr Ntantiso when the shot went off?

MR TSHABALALA: He was next to me.

MR RICHARD: Now who was in front of you?

MR TSHABALALA: It was another person I do not know, a member of the community.

MR RICHARD: And where was the deceased?

MR TSHABALALA: He was standing next to the car door.

MR RICHARD: And that wasn't in front of you?

MR TSHABALALA: You mean the deceased?

MR RICHARD: Yes.

MR TSHABALALA: He was in front of me.

MR RICHARD: And who was behind him? Was there anyone behind the deceased?

MR TSHABALALA: There was a car and another person and the deceased.

MR RICHARD: Now how much nearer could you have got to the deceased by just walking towards him? You were walking towards the deceased. Was there anything stopping you carrying on walking towards the deceased?

MR TSHABALALA: Yes, according to the type of gun that I had I could not go near him.

MR RICHARD: I put it to you that you shot him at point blank range. In other words, literally from the red line to yourself and that means if the shotgun is a metre long, no more than two metres separated you from the muzzle of the shotgun to the deceased? That's point blank range, is that correct?

MR TSHABALALA: No I wasn't near him that much.

CHAIRPERSON: Are you saying that when you shot him you were about the distance from the red line, is that what you're saying?

MR TSHABALALA: That is correct.

CHAIRPERSON: That's same three and a half metres?

MR RICHARD: Now where did you shoot the deceased?

CHAIRPERSON: You mean on what part of the body?

MR RICHARD: Yes.

MR TSHABALALA: I'd say around the waist.

MR RICHARD: Why did you shoot him in the waist?

MR TSHABALALA: I have already explained that I did not want to injure the person who was standing behind him.

MR RICHARD: Now what part of the body is the waist? It's the stomach is it not? It's where your belt goes round?

MR TSHABALALA: At the side as I'm pointing.

CHAIRPERSON: He points to the waist area, midriff.

MR RICHARD: Now is that where you aimed your shotgun? That's your evidence?

MR TSHABALALA: I wanted to shoot him at his head.

MR RICHARD: So instead you aimed at his stomach, his side?

MR TSHABALALA: That is correct.

MR RICHARD: In front of 20 other people?

MR TSHABALALA: That is correct.

MR RICHARD: But then I put it to you that you confirmed your comrade's evidence that he was shot above the knee, not in the waist?

MR TSHABALALA: Maybe I do not recall correctly because this thing happened many years ago.

MR RICHARD: Mr Tshabalala, on your version, I must put this to you that we have nothing more in front of us than a straightforward armed robbery of a man who has been stupid enough to get out of his car while the ignition has been left on and you, without any intention or without any political intentions and motives, simply seized the opportunity and shot the man and then stole the car? Just plain common law robbery? Those are the facts consistent with what you describe and the rest is merely a convenient lie so as to avoid the consequences of your murder? What do you say to that proposition?

MR TSHABALALA: No, that is what you say. I do not agree with you on that.

MR RICHARD: Very well. Now you say you spent two months in the Transkei. Was that near the sea, in the mountains?

MR TSHABALALA: We were at the township.

MR RICHARD: In the township? Do you know the name of the township?

MR TSHABALALA: I have said that I do not recall the name of the township but it's next to Umtata. Gangaliswe.

MR RICHARD: Sorry, Gangaliswe? What is that name?

CHAIRPERSON: It's a township in Umtata. He is asking was it Gangaliswe?

MR RICHARD: Sorry, I've missed you?

CHAIRPERSON: Sorry, no I'm just asking if it was perhaps Gangaliswe?

MR TSHABALALA: Well I don't know, I was still young at that time.

MR RICHARD: Now for how many hours a day did you receive training?

MR TSHABALALA: We would receive training any time of the day when we were free.

MR RICHARD: Did you receive training every day?

MR TSHABALALA: That is correct.

MR RICHARD: Did you do anything else besides receive training?

MR TSHABALALA: No.

MR RICHARD: Now you've already told us that you received training in weapons and handgrenades. Other than weaponry, did you get trained in what the tactics of the PAC were in trying to overthrow the government?

MR TSHABALALA: We were trained in protecting the community in general.

MR RICHARD: How were you to protect the community?

MR TSHABALALA: We would defend the community because the community was attacked by the then government so we had to resuscitate some of our Task Force units which were dead.

MR RICHARD: Other than to defend the community what else were you trained to do?

MR TSHABALALA: We would hold discussions about PAC politics.

MR RICHARD: Would you be taught who to attack and not attack?

MR TSHABALALA: We were taught that we should not attack Africans but we should attack those who were oppressing the people.

MR RICHARD: Who were you taught oppressed the people?

MR TSHABALALA: Those are the people who were protected by the government of the day, that included the whites.

MR RICHARD: Who else?

MR TSHABALALA: Those are the people that we had to attack.

MR RICHARD: Were you taught to indiscriminately attack civilians?

MR TSHABALALA: I have explained that only the Africans were not supposed to be attacked. So if you were not an African that means you were an oppressor because those were the people who were supporting the then government of the day.

MR RICHARD: So that means you were taught by the PAC that it was your function to attack anyone who was not an African with absolutely with no discrimination? Is that your evidence?

MR TSHABALALA: No that is not what I'm saying.

MR RICHARD: Then what are you saying?

MR TSHABALALA: ...(inaudible)

CHAIRPERSON: I didn't get an interpretation?

MR TSHABALALA: I have said that we were attacking those who were oppressors.

MR RICHARD: Who were the oppressors?

MR TSHABALALA: Those were the people who were protected by the government of the day. That is the white people.

MR RICHARD: So then I go back to my statement. Is your evidence that you were told and taught that you may attack any person who is white simply for that reason with no discrimination? Is that what you are saying you were taught?

MR TSHABALALA: That is not what I'm saying.

MR RICHARD: Then who amongst the whites were you not to attack?

MR TSHABALALA: We were supposed to attack all the white people because they were protected and supported by the then government irrespective of whether they were voting for that government but they were protected by the government of the day.

MR RICHARD: How many people taught you near Umtata? Did you have one instructor or five instructors?

MR TSHABALALA: We had many instructors.

MR RICHARD: Well how many is many? More than five, more than ten?

MR TSHABALALA: Every unit had it's own commander.

MR RICHARD: I'm not talking about commanders, I'm talking about instructors?

CHAIRPERSON: It was instructors at that two month training period, how many people instructed you?

MR TSHABALALA: That's one person.

MR RICHARD: And what was that person's name?

MR TSHABALALA: That's George Makakula.

MR RICHARD: And it's George Makakula who taught you that all white peoples were legitimate targets?

MR TSHABALALA: That is correct.

MR RICHARD: Now why did you attack Mr van Wyk?

MR TSHABALALA: Mr van Wyk was one of the people who was protected by the then government of oppressors so he was also supposed to be attacked.

MR RICHARD: Now you've made mention of the Year of the Great Storm. Who taught you about that?

MR TSHABALALA: This was said by Sabelo Pama. He said that every member of the community should participate in fighting the oppressive government so that we can reclaim our land from the oppressors.

MR RICHARD: And how did he say you should fight?

MR TSHABALALA: He said members of the community should use any way that they can use to attack the government as long we'll be able to obtain our objectives.

MR RICHARD: Chairperson, may I beg an indulgence while I ask?

CHAIRPERSON: Yes certainly.

MR RICHARD: Thank you for the indulgence Chairperson.

You say Mr Ntantiso gave you the command to shoot Mr van Niekerk?

CHAIRPERSON: Van Wyk.

MR RICHARD: Van Wyk, sorry. When was that instruction given, was it in the morning, lunch time, afternoon?

MR TSHABALALA: Just after our arrival at that place.

MR RICHARD: Why did you wait so long? Well, about 12 o'clock until some time after three?

MR TSHABALALA: I told you that I do not remember the time exactly when the attack took place because this happened many years ago so that the time that you are saying comes from you.

MR RICHARD: No further questions.

CHAIRPERSON: Thank you. Mr Mapoma, do you have any questions you would like to ask?

CROSS-EXAMINATION BY MR MAPOMA: Just a few, Chairperson.

Mr Tshabalala, you've got a statement that you made. It appears on page 22 of the bundle. On paragraph 7 you say:

Do you confirm this?

MR TSHABALALA: Please repeat your question?

MR MAPOMA: Do you confirm ...(intervention)

CHAIRPERSON: The contents of paragraph 7 of your statement that appears on page 22, that's just the typed version of the statement which starts, the written one which starts on page 18. Paragraph 7 says:

And then the question is do you confirm that?

MR TSHABALALA: Yes Chairperson.

MR MAPOMA: You went on in paragraph 8 to say:

Do you also confirm this?

CHAIRPERSON: Well just carry on, I think two of the last sentences?

MR MAPOMA: Then you went on to say:

CHAIRPERSON: SAPS.

MR MAPOMA: Yes.

Do you confirm the contents of this paragraph as well?

MR TSHABALALA: I do not Chairperson.

MR MAPOMA: What is it that you don't confirm or that you disagree with?

MR TSHABALALA: Is that they were accompanied or escorted by members of the South African Police Force.

MR MAPOMA: How come does it appear in your statement?

MR TSHABALALA: Maybe it's because of the person who was writing that statement.

MR MAPOMA: Thank you Chairperson, I'll leave it there.

CHAIRPERSON: Mr Mbandazayo, have you any re-examination?

MR MBANDAZAYO: None Chairperson.

CHAIRPERSON: Judge Motata, do you have any questions that you would like to ask the applicant?

JUDGE MOTATA: Just one concerning his statement.

Mr Tshabalala, if you could turn to page 18. That statement, it's the written one by long hand up to page 21. Is this your handwriting?

MR TSHABALALA: No Chairperson.

JUDGE MOTATA: I see it's eventually at page 21 signed by one, if I may read that. It looks like Stephanus Johannes Killian, Commissioner of Oaths, ex officio RSA, 15th Floor, Carlton Centre, Commissioner Street, Johannesburg. Where was this statement made?

MR TSHABALALA: I think it was made at ...(indistinct)

JUDGE MOTATA: If you can look at page 21 there is an "x" where there is a date 16.03.2000, there is a signature next to the "x". Is that your signature?

CHAIRPERSON: About the fifth line.

MR TSHABALALA: Yes.

JUDGE MOTATA: This person who took the statement, you told him all what is contained there?

MR TSHABALALA: That is correct, Chairperson.

JUDGE MOTATA: In what language were you communicating with this person while taking the statement?

MR TSHABALALA: I was using English, Chairperson.

JUDGE MOTATA: Was this statement read back to you?

MR TSHABALALA: He was the one who was writing this statement.

JUDGE MOTATA: I say after completion of the statement, was it read back to you after you had spoken to him and he was writing, when he finished did he read all, everything to you back because you will notice there are approximately 17 paragraphs. This statement contains approximately 17 paragraphs.

MR TSHABALALA: Yes.

JUDGE MOTATA: And you saw to it that everything was true?

MR TSHABALALA: I thought what I told him, what I told him what was correct.

JUDGE MOTATA: Mr Tshabalala, just listen now, I'm trying to find out from you, I would just like an explanation of what I don't understand. Okay, do we understand each other so far? You said you spoke to this man in English and he was writing. What I want to know from you is after he had written all the 17 paragraphs, did he read this whole of the statement back to you?

MR TSHABALALA: Yes.

JUDGE MOTATA: And you confirmed the contents?

MR TSHABALALA: Yes.

JUDGE MOTATA: Thank you Chairperson, I've got no further questions.

CHAIRPERSON: Mr Sandi, have you got any questions you'd like to put?

ADV SANDI: Yes I do Chairperson. Maybe one or two.

Mr Tshabalala, you say you were trained in 1990 in the Transkei, is that correct?

MR TSHABALALA: That is correct.

ADV SANDI: Whilst you were being trained in the Transkei as a member of APLA were you told anything about the Beauty Salon operation as one of the strategies of APLA?

MR TSHABALALA: Yes.

ADV SANDI: What was said about it?

MR TSHABALALA: It was a unit which will after we've repossessed some items in our operations we'll hand over the loot to them.

ADV SANDI: Were you specifically given orders to take part in this repossession operations?

MR TSHABALALA: Our unit was led by Ntantiso, that is the person who gave instructions or orders.

ADV SANDI: How did you relate to the Beauty Salon operation? Did you have any role to play in regard to that unit?

MR TSHABALALA: No, I received instructions or orders from him.

ADV SANDI: On your way back from the Transkei, that is after you had received you training, what mode of transport were you using?

MR TSHABALALA: A car.

ADV SANDI: Whose car was that?

MR TSHABALALA: It belonged to the organisation.

ADV SANDI: Did you meet any white people on the road?

MR TSHABALALA: No.

ADV SANDI: Before this incident, that is when you attacked and killed Mr van Wyk, did you ever have an opportunity to kill a white person or was it the first time you had an opportunity?

MR TSHABALALA: I did not take part in any operation.

ADV SANDI: What did you do from 1990 to 1993 as a member of APLA?

MR TSHABALALA: We were developing units of the Task Force in our area.

ADV SANDI: Thank you. Thank you Chairperson.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising?

MR MBANDAZAYO: None Chairperson.

MR RICHARD: None Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

CHAIRPERSON: Thank you Mr Tshabalala, that concludes your evidence. You may stand down now.

_____________________________________________________CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson, the last witness I'll call is Jabulani Khumalo, Chairperson.

JABULANI KHUMALO: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson.

Mr Khumalo, can you tell the Committee who you are?

MR KHUMALO: My name is Jabulani Khumalo as stated.

CHAIRPERSON: If you ask a question you get an answer Mr Mbandazayo.

MR MBANDAZAYO: Mr Khumalo, is it correct that you are a member of PAC?

MR KHUMALO: That is correct.

MR MBANDAZAYO: Can you tell the Committee what position you hold in the PAC.

MR KHUMALO: I'm the national member, executive of the PAC, holding the portfolio of the local government.

MR MBANDAZAYO: Can you tell the Committee were you holding any position during the era of 1993 and if you had any position what position were you holding within the PAC?

MR KHUMALO: At that time politically I was the chairperson of the East Rand. I was not a national leader at the time.

MR MBANDAZAYO: Was it a region or a branch?

MR KHUMALO: A region.

MR MBANDAZAYO: Now Mr Khumalo, do you know the applicants who have just testified here before the Committee?

MR KHUMALO: Yes I do.

MR MBANDAZAYO: Can you tell the Committee how do you know them?

MR KHUMALO: I just get the name that they are really named today. The one called Tshabalala, I know him to be Solly. The other one with a brown jersey ...(intervention)

CHAIRPERSON: Mr Ntantiso.

MR KHUMALO: Ntantiso, he was David. Though those were the code names. I knew them when they arrived in the East Rand in the time when the East Rand had a problem with the ANC who were under attack and they were sent to Kathlehong to rescue and protect members of the PAC from the attack. So at the time they were introduced by their commander. They were Solly and David so they were the members of the Task Force.

MR MBANDAZAYO: Now can I be specific to you? Do you anything about the incident they are applying for amnesty for?

MR KHUMALO: Yes I do know about it.

MR MBANDAZAYO: Can you tell the Committee what do you know about it?

MR KHUMALO: It happened in the time when the instruction was given to all PAC inside the country. It was the time when the commanding chief, Sabelo Pama, declared the Year of the Great Storm. He activated that again when the office of the PAC in the national office at Bree Street was under attack by the members of the SAPS, SAP at the time, documents were confiscated, equipment of computers and other things were also confiscated. It was worse when the Mbendalosa family were under attack and killed. Then a clear statement was made that from the time the targets, the victims, that will be the victims of the barrel through the Azanian People's Liberation Army, will be any settler, anyone, irrespective. More specially it was also in the time when our people were under attack in the trains and the taxi ranks, that it was interpreted that they were the third force which has also been invaded by the white settlers.

So at the time, the interpretation of the target by the Azanian People's Liberation Army changes from the State's machinery to all white settlers. At the time there was a trembling in Azania. You will recall the Eikenhof in 1993, you will recall the St James, Helderberg Tavern. There was a lot of the so-called civilians but in the vocabulary of the

PAC at the time, there was no soft and hard targets.

MR MBANDAZAYO: Are you trying to tell the Committee what was done by the applicants was in line with PAC policy?

MR KHUMALO: It was, without any ambiguity. It was a justified cause.

MR MBANDAZAYO: That is all, Chairperson.

CHAIRPERSON: Thank you. Mr Richard any questions you would like to put to Mr Khumalo?

CROSS-EXAMINATION BY MR RICHARD: Yes Chairperson.

Mr Khumalo, have you ever heard of the Geneva Convention?

MR KHUMALO: I beg your pardon?

MR RICHARD: Mr Khumalo, have you ever heard of the Geneva Convention?

MR KHUMALO: Yes I did.

MR RICHARD: Now I would say that it's apparent that as at 1993 you were aware that the Geneva Convention prohibited gratuitous random attacks against civilians?

MR KHUMALO: That was not applicable in occupied Azania as is the U.N. Charter which also was supposed to be ...(intervention)

MR RICHARD: That is not an answer to my question.

MR KHUMALO: I did answer you but I'm giving you the broader perspective.

MR RICHARD: Sir, answer my question.

CHAIRPERSON: Please let's just - no shouting here.

MR KHUMALO: I want to give you a lecture.

MR RICHARD: I don't want a lecture.

MR KHUMALO: It's in line of the Geneva Convention. Maybe you know just that. I want to take you further.

MR RICHARD: Sir, I have the right to ask you questions. You have no right to ask me questions or to give me lectures.

CHAIRPERSON: Just ask questions and let's just keep it calm.

MR RICHARD: Calm, okay. So my question was, as of 1993 am I not correct that you were aware that the Geneva Convention prohibited random gratuitous attacks on civilians? Yes or no, that's the answer?

MR KHUMALO: I'm saying to you it was not applicable in occupied Azania. It was not applicable here in occupied Azania because ...(intervention)

MR RICHARD: Sir, that was not an answer to my question. My question is yes or no.

MR KHUMALO: I can't answer you with yes or no, I'm not a cabbage.

MR RICHARD: The question can only be answered in the yes or the no form, anything else is not an answer.

MR KHUMALO: That's your interpretation.

MR RICHARD: It's not my interpretation.

MR KHUMALO: It is.

MR RICHARD: I put it to you that you're refusing to answer the question.

MR KHUMALO: If you want me to answer you, I'm answering you but with explanation.

MR RICHARD: My question does not need an explanation, it's yes or no.

MR KHUMALO: It does ...(intervention)

MR RICHARD: If I want an explanation, I'll ask ...(intervention)

CHAIRPERSON: We're not going to let this deteriorate into a pollutable argument here.

MR MBANDAZAYO: Chairperson, I don't know even where the question takes us because at the present moment we are dealing with a unique situation. The political situation at the time, what was the aims and objective of that particular organisation at the time. That's why the TRC is involved, Amnesty Committee is involved as whether Geneva Convention or whatever convention, that's not the purpose of the hearing. The hearing is whether what the applicants did was in line with their political organisation and it was done with a political objective or not or they made a full disclosure.

CHAIRPERSON: Mr Richard, we are aware of what the contents of the Geneva Convention are, you can make any argument. It's there in black and white, whether the witness is aware of its contents or not is not of any great significance.

MR RICHARD: Chairperson, I really believe that I should have the opportunity of allowing the witness some comment on the fact that his evidence is to the effect that the PAC at the time countenanced crimes against humanity of the worst and most atrocious manner, prohibited by all known normal standards and that ...(intervention)

: Mr Richard, we can't go into that, really, because if you come with that kind of question, would we ask this question that the South African Government, did they go along with that kind of convention from the Geneva? It's not relevant because if you want to put that then you must come back and say the South African Government was adhering to the Geneva Convention and we all know, we have heard much of these things and it wouldn't take us anywhere, really.

MR RICHARD: Chairperson, I'll leave the line. No questions, the point is made. Thank you.

CHAIRPERSON: Do you have any further questions?

MR RICHARD: No further questions.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: I have no questions, thank you.

CHAIRPERSON: Any re-examination, Mr Mbandazayo?

MR MBANDAZAYO: None Chairperson.

CHAIRPERSON: Judge Motata, any questions?

JUDGE MOTATA: I've got none, Chairperson.

CHAIRPERSON: Mr Sandi, any questions?

ADV SANDI: No questions thank you.

CHAIRPERSON: Yes, thank you Mr Khumalo, that concludes your testimony.

MR KHUMALO: Thanks very much, Chairperson.

CHAIRPERSON: Mr Mbandazayo?

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

MR RICHARD: Mr Richard?

MR RICHARD: My first witness is Mr van Wyk.

CHAIRPERSON: I'm just wondering, I see the time. We've got the department of correctional services to take into account. I wonder how long it will be and if we shouldn't just consult with them to find out whether we can finish today or carry on tomorrow?

MR RICHARD: Chairperson, I cannot really ask for the Committee for advice but there is Mr Mapeka who was an eyewitness to the events on the day. He works for Frankipile who operate the drilling machines and he won't be available until Thursday morning.

CHAIRPERSON: Is that when you intend to call him?

MR RICHARD: I don't ...(intervention)

CHAIRPERSON: Well then we should do him now. I mean we don't want to make this a part heard until Thursday.

MR RICHARD: Mr Mapeka is not going to be in Johannesburg until Thursday.

CHAIRPERSON: Oh, until Thursday.

MR RICHARD: His evidence is only that of an eyewitness. I believe that in view of the answers that I got from the applicants, he is not really necessary.

CHAIRPERSON: Yes because they didn't dispute much, what was being put to them, yes.

MR RICHARD: They didn't dispute anything. And then other than that I intend to call Mr van Wyk who identified his father's body and reclaimed the car after the incident.

CHAIRPERSON: Yes. I'm just wondering, the people from correctional services, approximately how long?

MR RICHARD: I really do not believe that it will be not more than ten minutes subject to my learned colleagues.

CHAIRPERSON: Is that okay? Thank you very much.

HERMANUS STEYN VAN WYK: (sworn states)

EXAMINATION BY MR RICHARD: Thank you Chairperson.

Mr van Wyk, when did you first hear of what happened on the 12 October 1993?

MR VAN WYK: I was at one of my suppliers, supplying me with equipment when I received a pager which said my father was shot and we need to urgently go through to Vereeniging to find out what's going on.

MR RICHARD: What did you find out had happened?

MR VAN WYK: I found out that he was shot in Sebokeng and that they took all his possessions and that basically he was killed. Well we didn't know at the time he was killed because they weren't sure if he was dead at that stage. So we just heard that he got shot and we didn't get confirmation that he was killed but we knew they took his possessions.

MR RICHARD: And when did you discover that he had died?

MR VAN WYK: On arriving there at the police station in Vereeniging they said that it's probably the deceased that's lying in the mortuary.

MR RICHARD: Did you identify his body in the mortuary?

MR VAN WYK: Yes I went inside and I identified his body.

MR RICHARD: When did you identify his body?

MR VAN WYK: Well that was the same day as what the crime was committed, just the evening.

MR RICHARD: At what time?

MR VAN WYK: It must have been about 8 o'clock.

MR RICHARD: Now when you observed his body, did you observe anything about the position of injuries or condition of injuries?

MR VAN WYK: Yes, I noted that the injuries at least at the lower part of the thigh and downwards, since there was a belt on his thigh that someone tried to stop bleeding.

MR RICHARD: Where was the belt?

MR VAN WYK: The belt was about the middle of the thigh.

MR RICHARD: Were there any injuries above the belt?

MR VAN WYK: None, I couldn't see any.

MR RICHARD: Very well, now what sort of car did your father drive?

MR VAN WYK: He drove a similar Mercedes as what I'm currently driving. He drove the 230 Mercedes.

MR RICHARD: Now when did you see that Mercedes after the incident?

MR VAN WYK: I only saw the Mercedes once it came back from the insurance.

MR RICHARD: When was that?

MR VAN WYK: That was probably about a month or so ago, after the incident I mean.

MR RICHARD: In what condition was it?

MR VAN WYK: It was in a very good condition except on the side there were some marks and apparently which I didn't see was that the dashboard was opened up and there were a lot of wires that were hanging out etc. Well I didn't see it but I heard that from the insurance.

MR RICHARD: What had been repaired on the motor car?

MR VAN WYK: The immobiliser was prepared on the car since they couldn't start the car on the scene?

MR RICHARD: Were any windows repaired?

MR VAN WYK: No windows were repaired, there was no indication of any windows that would have been repaired or had been prepared.

CHAIRPERSON: If an immobiliser had been repaired and if there was a broken window, wouldn't it make sense to repair the broken window at the same time?

MR VAN WYK: Yes they would have repaired the broken window and immobiliser probably at the same time.

MR RICHARD: Would you have been aware of what they repaired?

MR VAN WYK: Yes we were all aware of what was repaired. My other brother who went back to receive the goods, he saw the car and he said apparently, according to him, there was no window broken.

MR RICHARD: Where is that brother?

MR VAN WYK: He is currently on a project in Nelspruit.

MR RICHARD: Now who installed the immobiliser?

MR VAN WYK: I installed it myself.

MR RICHARD: Would you please describe how it works?

MR VAN WYK: The immobiliser has got two relays and it is unique in the sense that it's extremely difficult to immobilise the vehicle once immobilised by that immobiliser. It's installed in such a way that it's hidden more than what the current systems are hidden.

MR RICHARD: How do you deactivate the immobiliser?

MR VAN WYK: There are two hidden touch spots which are unobvious in the vehicle. There's no jack plug or button or anything like that, it's just two touch spots which you have to touch simultaneously to get the car going.

MR RICHARD: Would an ordinary person unaware of this design of immobiliser be able to locate it?

MR VAN WYK: People that know their own cars sometimes struggle to get their cars going.

MR RICHARD: Now you say you drive a car very similar to that which your late father drove?

MR VAN WYK: That's right, it's the same model type Mercedes.

MR RICHARD: Do you have any comment about the version propounded by the applicants concerning the keys being locked in the car?

MR VAN WYK: Yes, the Mercedes Benz vehicle, you can't lock without using the keys. In other words if the ignition keys, if the car would have been idling, the ignition keys would have been inside the ignition. You can't lock the car unless you go through extensive exercise of closing your front door then unlocking a back door, opening up one of the back doors and then stretch inside the car, deep inside the car to lock the front door. Then only you can start locking the back door and then slam it closed. In other words, you can only lock a Mercedes Benz from a back door without the keys so according to me there's no ways that a car can idle and the car's totally locked.

MR RICHARD: Now if you broke the back quarter window, would you be able to reach to the front to unlock the front door?

MR VAN WYK: Not at all. The Mercedes Benz locking pins are sunken into the sockets so there's no way that you can grip them at all so you have to literally - I don't know how you're going to do it but it's a very difficult exercise.

CHAIRPERSON: But we've heard the evidence that the car was in fact moved twice?

MR VAN WYK: Yes you ...(intervention)

CHAIRPERSON: I mean there's no reason for any sort of falsehood in this respect that they went to Zone 11 and parked it - to Zone 12, parked it and then later moved it from Zone 12 to Everton?

MR VAN WYK: I would have a bit of a problem with that. If they were extreme experts in how to immobilise a car with those type immobilisers, they could have probably done it but it's very, very difficult because the whole system is submerged into the current wiring system. Even if you hot wire it, it doesn't work.

CHAIRPERSON: Where did you hear that the car was recovered from?

MR VAN WYK: I - where, when? Sorry?

CHAIRPERSON: Where?

MR VAN WYK: I heard it was recovered from a cemetery.

CHAIRPERSON: In Everton?

MR VAN WYK: Yes, apparently they couldn't get the car going there and then they left it there.

CHAIRPERSON: Yes, because can you see any reason why somebody should come and lie about going to Zone 12 and leaving it there and then going to Everton? It's not part of the plot, it's a minor detail to lie about?

MR VAN WYK: Yes, I don't know why they would lie about things like that but I know ...(intervention)

CHAIRPERSON: They must have then been expert to have got it started?

MR VAN WYK: You must be an expert to get the car started unless you are expert in wiring cars you won't start that car. It's very, very, difficult to start the car even if you know immobilisers.

MR RICHARD: My last question. Is vis-a-vis the applicant's application for amnesty, do you have a point of view? If so, what is the view?

MR VAN WYK: My point of view on the amnesty is that I believe in reconciliation, I believe in forgiveness and I believe in truth. I believe in everything that is better for society and for the people of the society, whoever and whatever they might be. I, although, have a serious problem with when criminal acts are being covered up by political motives. That for me is like committing the crime all over again.

MR RICHARD: What do you believe about the applicants?

MR VAN WYK: Sorry?

MR RICHARD: What do you believe about the applicant's application?

MR VAN WYK: I think that they are trying to cover up. I think that that was just an incident which they took to their favour. There was goods and gain opportunity for themselves and I think they took that. I also think that for them to plan - to protect their head office is a little bit far fetched because right through the whole testimony, they obviously didn't really guard. If I'm under attack I am close - I wouldn't even go to the cafe, I would know exactly who is drilling, their movements, tactical movements of the threat at all times.

And also, the other thing I felt was, there are so many other opportunities of killing people. Why didn't that happen at that time, why did they wait when there was gain involved, then kill someone? I mean there was other people also all the time that they could have killed and not an isolated incident. So that's a concern of mine.

MR RICHARD: No further questions. Thank you Chairperson, that concludes my case.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions you'd like to put to Mr van Wyk?

CROSS-EXAMINATION BY MR MBANDAZAYO: Just two questions, Chairperson.

Mr van Wyk, you told the Committee that one of your brothers told you that there was no broken window?

MR VAN WYK: That is correct.

MR MBANDAZAYO: When he went there was there any indication that there was a broken window?

MR VAN WYK: When I went where?

MR MBANDAZAYO: When he went to check the car.

MR VAN WYK: I only saw the car sometime later. In other words I didn't go and recognise the car. My brother did. I saw the car after the incident, after it was repaired. I didn't find any glass pieces, small glass pieces anywhere in the car.

MR MBANDAZAYO: My question is, is that you confirm that your brother said that there was no broken window. My question is, when he went there was there any indication that there was a window broken?

MR VAN WYK: No, there was no indication that there was a broken window.

MR MBANDAZAYO: So why did he mention that there was no broken window?

MR VAN WYK: Because it was mentioned in the statement that the window was broken.

MR MBANDAZAYO: When?

MR VAN WYK: Well they say here they were trying to open up the car and the testimony said that they broke the window.

MR MBANDAZAYO: So the statement you are talking about is the TRC statements?

MR VAN WYK: Yes, there's a statement that says that they were going inside the car.

MR MBANDAZAYO: So that's why you are saying your brother said there was no broken window?

MR VAN WYK: Yes, there was no broken window.

MR MBANDAZAYO: I have no further questions, Chairperson.

CHAIRPERSON: Mr Mapoma, any questions that you would like to put?

MR MAPOMA: I have no questions, Chairperson.

CHAIRPERSON: Any re-examination, Mr Richard?

MR RICHARD: None Chairperson.

CHAIRPERSON: Judge Motata, any questions you would like to put?

JUDGE MOTATA: I've got none, Chairperson.

CHAIRPERSON: Advocate Sandi, any questions?

ADV SANDI: Just one minor detail, Chairperson.

Mr van Wyk, approximately how old was your father?

MR VAN WYK: My father was about 60 - 62. 62.

ADV SANDI: Thank you.

CHAIRPERSON: Thank you. I'm sure there's no questions arising out of that last question. Thank you Mr van Wyk, that concludes your testimony.

MR VAN WYK: It's a pleasure.

CHAIRPERSON: Mr Richard?

MR RICHARD: I close the case.

CHAIRPERSON: Thank you.

MR RICHARD: I don't believe that calling Mr Mapeka really takes the matter any further.

CHAIRPERSON: Yes I don't think it will take it any further.

Mr Mbandazayo?

MR MBANDAZAYO IN ARGUMENT: Thank you Chairperson.

Chairperson, first I want to deal with the question of the attack itself, why Mr van Wyk was the target. Chairperson, I wouldn't like to bore you much about ...(intervention)

CHAIRPERSON: I wouldn't like you to bore me at all. I'm sure you're stimulate me, yes.

MR MBANDAZAYO: I'll refer you, Chairperson, to the submission made by PAC which was made on the 27 May 1998 which was when the TRC wanted a policy of PAC on non-racialism and the targeting of whites in the prosecution of the struggle for national liberation and democracy.

Chairperson, unfortunately I don't have the document but I know that the members of amnesty were using that document most of the time. Mine faded away because of the ink in which it was - I've requested another copy of it but I haven't yet received it. But Chairperson, there the submission was made by the then General Secretary of Peace, Singila Mondwane, who was an MP then, exactly on the target of why the whites were targeted. The question of soft targets and hard targets, whites in general.

Chairperson, this submission was taken from this book, Pan Africanist Congress of Azania. I've made many copies about this book on all my hearing where I've been dealing with this matter, Mangaliso Robert Sobukwe. Gila Mondwane took - the submission was based on the last chapter which says:

and the question which was asked:

The first founding president of PAC, Sobukwe has replied:

Then the question persisted:

Sobukwe says:

Now that submission was based on this, it was quoted in that submission and Gila Mondwane went on to say:

So they were implementing the policies of the then government. They were beneficiaries of the then white government. So that's why they made the submission that therefore in PAC terms there were no hard and soft targets. So that's why it seems as if the PAC were targeting white people.

ADV SANDI: Sorry Mr Mbandazayo, you'll have to assist me, maybe my memory is failing me. It's been a long time I read that submission by the PAC but my recollection is that when this specific question came up, that is the question as to whether the PAC had a general policy of indiscriminately attacking whites simply on the basis that they were white? I think they denied that?

MR MBANDAZAYO: Yes, that's true, that's true ...(intervention)

ADV SANDI: They said they had no such policy?

MR MBANDAZAYO: That's true Chairperson, that's true. They denied that. Definitely, Chairperson. If they were attacking indiscriminately, definitely if they met any white person in the street they will attack him. So it's clear, Chairperson, they were not attacking indiscriminately. But of course for obvious reasons, if you attack somebody, if you are involved in the struggle, the purpose was not to put yourself in danger. You have to choose your targets.

ADV SANDI: I think what you've just read to the Committee revolves basically around the question of racial attitudes and the why of such attitudes?

MR MBANDAZAYO: Exactly, Chairperson, that's what I'm trying to elaborate and to take it further, Chairperson, in that year as the applicant correctly put it, Sabelo Pama declared as the Year of the Great Storm and I need not preach to this Committee, knows what that means, it has been mentioned many times because it was involved in the community and everybody was involved in that struggle and Chairperson, it was - his speech was on television, the Year of the Great Storm, because it was the year in which he came into South Africa and was recorded and after he left and it was broadcast that the Year of the Great Storm when he was given ...(intervention)

CHAIRPERSON: I think it was fairly well known at the time, it was that year.

MR MBANDAZAYO: Yes Chairperson and exactly, Chairperson, he answers all those questions in the Year of the Great Storm about the question of the whites and exactly he was asked about those, the white and the soft targets and he answers then that in South Africa the white kids are taught as young how to handle a firearm. Now he says that in South Africa you are not dealing with a purely civilian situation. We are dealing with a semi-militarised people so there's no way that you can say then that they are soft targets. That's how he puts it and Chairperson, he puts it in various terms and he was grilled on this aspect and he put it in various ways and lastly, Chairperson, you know, Gary van Staden, an academic from South Africa, a white academic, in that article in 1992 on the 5th November, Saturday Star. You know, the article:

Chairperson, as I indicated, I wouldn't like to bore you. I wanted to explain the question of whether the person was targeted because he is white or not. I wanted to put it in the context why it seems as if the PAC was having a policy on the whites. Chairperson, it's my submission that the applicants, when they came before this Committee have nothing to lose. The worst that they will lose was this Committee to refuse them amnesty, that's all, not to grant them amnesty, that's the worst they can get from this Committee.

CHAIRPERSON: But that's - a whole lot hangs on it because haven't they got long jail terms?

MR MBANDAZAYO: Yes Chairperson, I'm saying that - what I'm trying to get at is that they are serving their - they've already been convicted for this crime.

CHAIRPERSON: Yes.

MR MBANDAZAYO: They have nothing to hide.

CHAIRPERSON: Yes.

MR MBANDAZAYO: There is no reason for them to come and lie here before this Committee. There is no reason for them to come and lie before the Committee.

ADV SANDI: Do they still have many years to serve?

MR MBANDAZAYO: They have many years to serve, Chairperson. What I'm trying to get at, why would they lie if they want to get out because they have already done it, they have already been convicted for this offence. Them is to spill the beans. What I'm referring to - I'm not referring to whether it was political motivated, I'm going to address that. I'm addressing the question of the facts, whether they have made full disclosure as to what happened on the day in question. There's no reason for them to lie on that aspect as to what happened, how did they kill the person, the said person and how it happened ...(intervention)

CHAIRPERSON: On the merits, on the actual pulling of the gun.

MR MBANDAZAYO: On the merits, Chairperson, there's no reason for them to lie. I agree maybe because they have served long jail, they may lie on the political motive but on the merits, Chairperson, they have no reason to lie, on the merits. That's what I'm trying to get at.

Now if - Chairperson, I would like the Committee to take into account that the time elapsed from the date of - it was 1993 and the people are in jail and most of the time when these people are committing these offences, never dawns in their minds that the other day - at that time, we'll come to recount what actually happened and the events may not come up, not necessarily they may not be specific on some of the issues, may not be correct as they happened, but not because they're deliberately misleading the Committee but because of the time elapsed since the incident occurred.

Now coming to the political motive. Chairperson, there is not dispute, there is nothing to gainsay to say they were not members of PAC at the time and Chairperson, I want also to put on record that there is a difference between APLA and Task Force. A very big difference. Members of APLA were properly trained members and it took them some time when they undergo training and they are taught various things as fifteen standing rules as APLA as is known by the Committee which is not done in Task Force. Task Forces are trained - they are like Self Defence Units and they were used to protect leadership and also VIP protection and they were also used as a pool for APLA. When there is a shortage, APLA was recruiting from the Task Force and trained them properly and sometimes they were used to pool certain mission led by APLA. But that year, it was a year which of course we know all of us, even the masses were taking their own initiative. That's why it was declared the Year of the Great Storm. So there was no order which has to come up anyway because Sabelo has declared it the Year of the Great Storm. So the masses have to take their own initiative in order to topple the then government.

Now Chairperson, it's my submission that there's nothing to say that the way they did and how they did it was not politically motivated, has no political motive. One may argue, Chairperson, one can come up with another idea, the other view that, that it was purely criminal. Of course, Chairperson, but there is no evidence to indicate that it was purely a criminal offence that took place on the day in question.

ADV SANDI: Just whilst you are on that one, Mr Mbandazayo? Do you accept that one may be a member of a political organisation but it does not necessarily follow that all the acts he commits are done on behalf of that organisation, maybe on a frolic of his own?

MR MBANDAZAYO: It does not give you, because you are a member of a political organisation, there automatically whatever you do, it was done in the pursuance of the political struggle or in line with that particular organisations policy, Chairperson. But what I'm saying in this instance, Chairperson, there are many cases, Chairperson, where even one would say he was a member but you can detect, simply detect that it has nothing to do with politics but he was doing it for his personal gain.

But Chairperson, what I'm saying in this particular case, there is nothing to say that, Chairperson, this was purely criminal, was purely a criminal offence on the part of the applicants.

Chairperson, they testify that they did that, amongst other things, Chairperson, they did not say it because of that, that because they were under - they said amongst other things it was the Year of the Great Storm, the PAC offices were raided, and Chairperson, we have heard evidence, that's why one of the applicants, Phila Dolo was arrested and APLA was hitting the Police on the other side, that they must intensify after the PAC offices were raided and it was after the attack on the sleeping children at Umtata, at Northcrest, and you know, Chairperson, what reaction followed after that incident. It's just like what followed after the killing of Chris Hani. People were just mad, Chairperson. We know that what followed after the killing of those people and some of the people were victims of that reaction from the people and the applicants are saying, amongst other things, was worse, the killing of the Mbendalosa family at Umtata. Those sleeping kids were killed.

So there were various reactions from various people and at that time we know that if there was instruction from APLA that you have to hit hard in response to what happened. So I'm saying, Chairperson, one cannot say purely, if you take those sequence, those events as to what took place in that year, that what they did was purely a criminal offence.

And Chairperson, we know that there were various units within APLA. Some were doing repossession, some were offensive units, Chairperson. But that year as it was indicated, it was the Year of the Great Storm as it was pronounced. So everybody was taking the initiative and we know, Chairperson, that reason - if I may, Chairperson, it's only one member of the Committee who was involved in the Delgama, Highgate, Delgama attack. Advocate Sandi, Member of the Committee. That when you read the evidence of Lehlape Mpahlele, he was asked when it was attacked after the church at Delgama why those people took the car away and the money which was there and it was simply a question in his court evidence:

Because they came back with ivory. And he said it was a war booty, everybody knows about that. To show that look, we have done this, here is the results of what we have done and the applicants, there's nothing to say that what they took away was for their personal gain, they were going to use it. Unfortunately, they were arrested the same day and they said look, we were going to take it to Umtata and they were also going to attend the funeral so they were going to hand it over as they were also going to Umtata to a funeral of the Mbendalosa family.

So Chairperson, there's nothing to gainsay that that was not the case. It's just a mere speculation that was done specifically for robbery. Therefore Chairperson, it's my submission that the applicants have met all the requirements of the Act and therefore they should be granted amnesty .

Chairperson, unless the Committee would like me to address it on any other specific point?

CHAIRPERSON: Yes, I think the question of the possession of the firearms is straightforward, it's a later one, we don't need anything on that.

MR MBANDAZAYO: Yes.

CHAIRPERSON: Mr Richard?

MR RICHARD IN ARGUMENT: Thank you Chairperson.

From a procedural point of view, I accept that there is an amnesty application for amnesty in respect of the various crimes of murder, robbery and possession of unlicensed firearms and ammunitions. There are some technical defects in the application which I don't believe are of any point of relevance.

My first thing, is if one looks at the requirements of the Act, in order to get amnesty the first premise is a full disclosure. We had today before us two applicants who in my respectful submission were patent and obvious liars. Their credibility has to be attacked to the core and the entirety of the evidence tainted by their lack of honesty.

To start with, one takes the story of the so-called fear of attack that the two applicants would wish us to believe they suffered under. It is patently absurd on the facts that they admit to be true to believe that Mr van Wyk posed any threat at any level at all to the PAC's office in Sebokeng. What he was doing was obviously of a non-Military or Security Force component nature and one wonders why on earth the applicants concocted what is such an obvious lie in their application.

Once one has such a serious flaw regarding the credibility of the application, one then has to address the question, full and proper disclosure. If there is dishonest disclosure it's axiomatic that there cannot be full disclosure. If a witnesses credibility is destroyed by the obvious performance that we were subject to today, nothing can be accepted and you know, the suggestion that the applicants made full disclosure, to me is absurd.

Now the next point that we look at is the circumstances of the particular incident for which they applied for amnesty and if we look at the facts as they are established, I believe we have the situation where a man parks his car next to the building site where he is working and works on it all day. The car is observed as a Mercedes which is a desirable object for a thief. They have many hours to plan and consider what to do. Towards the end of the day at a time appropriate to going home, he leaves the building the site and approaches his car. I don't believe the story of a window being broken is at all plausible so therefore I make no mention of it. He gets into the car, deactivates the immobiliser and for reasons to do with his operations, decides to get out of the car again. At this stage the two assailants approach the motor vehicle and while he is a little way away from his car but not very far at all, he is shot with a shotgun in his legs. Again, the person who shot him is clearly lying when he says he shot him in the stomach.

CHAIRPERSON: I think he said he directed his shot there.

MR RICHARD: Yes.

CHAIRPERSON: As opposed to the head I think what he was trying to say.

MR RICHARD: Yes, but the shot was into the legs, not the head or the stomach.

There's an ideal opportunistic situation for a thief to rob the motor car. The ignition is on, the car is running, the owner is out of the car and one need only think of various press reports where motorists leaving their garages have made the same mistake of not taking the ignition keys out of the car and turning off the car while locking the gates and have found themselves hi-jacked.

The version that the applicants intended to kill the deceased firstly is not born out by what they did. They did not fire a shot consistent with that attitude. The shot was to the legs which is manifestly consistent with nothing more than a straight hi-jacking robbery.

Then we take the next step. While I don't believe there are any facts upon which the applicants might bring their application within the Act, let's assume for the purposes of argument that the facts are that the story of the threat is simply untenable rubbish and the only reason for the attack was to kill the deceased. On that version we have a target which much at all international laws, norms and standards be classified as exclusively and totally civilian in nature. That person is then subjected to a completely unprovoked and gratuitous attack for no other reason that that person so happens to be white. No that, at international law, constitutes nothing less than a gross crime against humanity and one must merely then reflect upon proportionality and the Norgaard Principles. I cannot see how, if one takes the Norgaard Principles and the cases where one extracts the application so as the car park case which I won't go into because it's now well known, if the placing of a car bomb in a parking garage, set to go off late at night was held by Professor C A Norgaard to be disproportionate and inappropriate because of the possibility of members of the civilian population still being around, then what we have before us cannot never be brought within the ambit of proportionality as articulated by Professor C A Norgaard.

The nature of the person under attack, here we are asked to believe that it was permissible to attack any person of any age or category within the white group of the population merely because that person was white. I do not believe the Act which creates this Committee ever intended that result. I believe I've taken my argument as far as I can at this point and if the Committee requests written argument, I shall gladly oblige before the end of next weekend.

CHAIRPERSON: Thank you Mr Richard.

Mr Mapoma, do you wish to make any submissions?

MR MAPOMA IN ARGUMENT Just a small aspect, Chairperson.

Chairperson, I just want to respond to the argument advanced by Mr Richard on the latter part of it, actually proportionality. Yes Chairperson, the Act, it is my submission, intends that a person who applies for amnesty must be granted amnesty if that person shows that what his or her intention was, to advance the political objective of his organisation, the question of bona fides is also important on that. It looks like an attempt is being made by my learned friend to challenge the policy of the PAC, squaring it up of course, comparing it with the international standards or other principles adopted. It is my submission, Chairperson, that it is not for this Committee to judge the policy of the PAC. However, it is for this Committee to consider whether the policy of the PAC as espoused by the PAC, well documented, has been followed by the applicants and it is my submission, Chairperson, at this point that the applicants have shown that all that what they did was not disproportionate to the intended objectives of the PAC.

In the circumstances, therefore, Chairperson, I recommend that the applicants be granted amnesty.

MR RICHARD IN REPLY: May it please, Chairperson. May I reply?

CHAIRPERSON: Yes.

MR RICHARD: I disagree with my learned colleague. For this Committee not to sit in judgement of the political policies and practises and procedures of the individual parties would make a mockery of the Act, it would reduce the Act to a mere technical press button switch machine which would be devoid of all substance. It would permit a party and come forward and propound the most absurd policies ex the past and simply because it substitutes - it satisfies the provisions of the Act in a formalistic manner, to demand the right to amnesty. That was certainly never the intention of the enactment guaranteed by the constitution. No, I do not believe the mere fact that as at present PAC says that every white settler was a legitimate target makes that a legitimate political opinion or makes the targets selected by them proportionate and the Act remains to be applied in the way the text requires. May it please, Chairperson, I conclude.

CHAIRPERSON: Thank you. Any reply Mr Mbandazayo?

MR MBANDAZAYO IN FURTHER ARGUMENT: Chairperson, just one aspect.

Chairperson, I agree with the Leader of Evidence that the purpose of the Committee is to implement the Act as it is. It's the duty of the parliament to go and change the Act and come up with the Geneva Convention principles and to be applicable at this hearing. I don't think at this late stage when this Committee is winding up its work now it has to come up with something new now because there is this hearing.

Now coming on the question of proportionality Chairperson, I won't go to what my learned colleague has already indicated but it's always my submission that you cannot apply proportionality to the messenger, Chairperson. The formulators of policies are the people who should, the proportionality principle be applied to, because at the end of the day they are the people who came up with all these principles and policies. The others were just to implement the policies, that was all. So it cannot be said that the proportionality must effect them and the people who are the authors of those principles and policies are just sitting there. Thank you Chairperson, that's all.

ADV SANDI: So is it not the position that really the policy of any organisation of which an applicant was a member or a supporter whatever the case may have been? Isn't that part of the picture when this Committee has to sit and evaluate the evidence that has been tendered so that he can come to a decision at the end of the day? You can't disregard such questions of policy to which applicants were members or supporters. It's all part of the picture, you can't disregard that.

CHAIRPERSON: Yes, but what Mr Mbandazayo was getting at, what I understood his argument was that if the policy of the political organisation falls without the ambit of proportionality, then one must look towards the formulators of that policy, not to the foot soldiers on the ground. Is that basically what you're saying?

MR MBANDAZAYO: Yes Chairperson, that was my point thank you.

CHAIRPERSON: Thank you very much for sitting late, I apologise to the translators, the sound people, TV people and I'd like to thank the Correctional Services for staying on to allow us to finish this matter. We will reserve judgment and a written decision will be handed down in this matter.

I'd like to thank the legal representatives very much for their assistance in this matter. That brings us to the end of this hearing and we shall now adjourn till tomorrow. At what time, half past nine? We'll adjourn till half past nine tomorrow when we will commence with another application, which one I'm not sure. Thank you.