_____________________________________________________CHAIRPERSON: Good morning. We want to start the proceedings. For the record it is Tuesday 21 November 2000. We are continuing with the amnesty sitting at the IDASA Centre in Johannesburg. The presiding panel is constituted as should be apparent from the record. The first matter that's on the roll this morning is the amnesty application of Heinrich Johannes Grosskopf. The amnesty reference number is AM5917/97. I will allow an opportunity for the legal representatives to place themselves on record, starting with Mr van der Berg.

MR VAN DER BERG: Thank you Mr Chairperson. Eric van Der Berg from Attorneys Bell, Dewar and Hall on behalf of the applicant, Mr Grosskopf and also on behalf of a number of implicated persons, but I'll deal with those later.

CHAIRPERSON: Thank you Mr van Der Berg. And then on behalf of the victims?

MR RICHARD: Thank you Chairperson. Tony Richard from Johannesburg instructed by the TRC to represent Mrs Claassen and one other victim who might get here. Thank you Chair.

CHAIRPERSON: Thank you Mr Richard. Yes and then the Leader of Evidence?

MR MAPOMA: Thank you Chairperson. My name is Zuko Mapoma, I'm the Leader of Evidence for the Amnesty Committee.

CHAIRPERSON: Yes, thank you Mr Mapoma. Mr van Der Berg is there anything you want to put on record or do you want your client to take the oath?

MR VAN DER BERG: Mr Chairperson, if I could put just a couple of things on record to start with which I believe may facilitate in the disposal of this application. As I indicated earlier I act on behalf of the applicant, Mr Grosskopf. I also act on behalf of certain implicated persons, some who have been given notice and some who have not. Those are Abubaker Ismail who has been notified. Ernest Lakota Pule, who has been notified. Lester Dumakude, who has not been notified and Johannes Mnisi who has been notified.

In the week commencing the 5th May 1998, Mr Ismail and Mr Mnisi applied for amnesty for this incident. Their applications were heard that time. There is a record of that evidence. I've not had an opportunity to make a copy to hand up to the panel and I can do that at a later stage if it is required. Mr Ismail's evidence is at page 52 of that bundle. There are also, Mr Chairperson, in the bundle which has been prepared by the TRC at pages 14, a statement by Mr Ismail which was confirmed under oath at the hearing which I've already referred to and at page 24, if my memory serves me correctly.

CHAIRPERSON: Mr van Der Berg is that paginated page 14?

MR VAN DER BERG: That's paginated page 14 of the bundle.

CHAIRPERSON: Yes, they've done us in here, or they've done me in. Oh okay, yes. No, no, no, I'm not left out, I do have it. I just want to get there. Oh yes, the statement by Abubaker Ismail.

MR VAN DER BERG: Thank you Mr Chairperson. And then at page 24 there's a statement by Mr Mnisi who also testified at that hearing that I've referred to and this statement was also confirmed under oath at that time.

Additionally at that hearing, Mr Ismail testified at some length as to establishment, the mandate and the history of the special operations unit of uMkhonto weSizwe and we don't want to repeat that evidence, we take it that that evidence is before you. Bits and pieces of that evidence were repeated at the application of Mr Ismail and also Mr McBride in respect of the Why Not Bombing. I'm sorry, I don't have the dates when that was heard but if my memory serves me correctly, October last year. I'm indebted to Mr Richard.

Other than those remarks, Mr Chairperson, perhaps I can deal with the bundles of documents which are before you and we can mark those before Mr Grosskopf takes the oath. There's a statement by Mr Grosskopf to which he will talk as a guide to his evidence. Perhaps we could mark that A?

CHAIRPERSON: Exhibit A then.

MR VAN DER BERG: And then secondly, Mr Chairperson, I made copies of a bundle which was used at the application of Mr Abubaker Ismail and Mr Mnisi which I've already referred to. If we could mark that B? I have made a copy of that available to my learned friend, Mr Richard, but I didn't have time this morning to make a copy for my learned friend Mr Mapoma and I will try to remedy that during the course of the day. If we could mark that B?

CHAIRPERSON: That will be Exhibit B then.

MR VAN DER BERG: Thank you Mr Chairperson, I then call the applicant.

CHAIRPERSON: Thank you Mr van Der Berg.

HEINRICH JOHANNES GROSSKOPF: (sworn states)

EXAMINATION BY MR VAN DER BERG: Thank you Mr Chairperson.

Mr Grosskopf, you've prepared a statement which is before the panel marked A. If I could just before we deal with that statement refer you to the bundle which was prepared by the TRC and page 1 of that bundle? Is it correct that that is your amnesty application?

MR GROSSKOPF: It is.

MR VAN DER BERG: Completed in your handwriting and signed by yourself?

MR GROSSKOPF: It is.

MR VAN DER BERG: At page 10 of that bundle, Mr Grosskopf, is a letter from yourself, I think, if you would just confirm that, in which you give certain additional detail relating to your amnesty application.

MR GROSSKOPF: It is, that is correct.

MR VAN DER BERG: How did you become to prepare that letter?

MR GROSSKOPF: If memory serves me well it was the day before which would have been therefore the 28th September, I received a telephone call in the evening from Ms Whittle from the Amnesty Committee in Cape Town. It was the only message on my answer phone in fact. I phoned her the next day being 29th September and she clarified that additional information was required. She faxed - no, she E-mailed to me the letter requesting additional information and on the same day I responded.

MR VAN DER BERG: Thank you. Could I then refer you to Exhibit A? You set out in Exhibit A your personal background and your family situation. Could you - you were born on the 21st December 1963 in Bloemfontein and you relocated to Johannesburg when you were about two years old, is that correct?

MR GROSSKOPF: That's right.

MR VAN DER BERG: You then deal with your family situation and some of the incidents which formulated or assisted your thinking in latter years. Could you deal with paragraphs 2, 3 to start with, Mr Grosskopf? Do you want to put those into the record?

MR GROSSKOPF: Ours was a house in which political, moral and intellectual questions were often discussed and with a wide variety of people from many disparate backgrounds. I have a clear memory as a fairly young child of noticing the incongruous situation that my parents' Black friends who would visit our house and be treated as my parents' equals, with we children addressing them respectfully, as "Oom" and "Tanie", but they still had to return to the townships at night.

It was impossible to be brought up in South Africa, even the White suburbs, without being aware of the inequalities and injustices of apartheid. Throughout my school career this led to arguments with fellow pupils and increasingly, as I grew older, with teachers.

MR VAN DER BERG: You then list in paragraph 4 a number of incidents which were central to life experience. Are there any of those that you would specifically wish to highlight?

MR GROSSKOPF: I would probably choose to highlight as those that had the greatest impact on my thinking and certainly emotion at the time when I experienced them, sub-paragraphs 4.3, 4.4 and 4.5.

MR VAN DER BERG: Would you read those into the record please?

MR VAN DER BERG: Paragraph 5 you deal with the end of your school career and the fact that you travelled to the United States and the United Kingdom in 1982. Would you just read the final sentence of that paragraph into the record?

MR VAN DER BERG: Paragraph 6 you deal with your experiences in the United States and the United Kingdom. Would you read that into the record please?

MR VAN DER BERG: Please continue?

MR VAN DER BERG: On your return from the United States and the United Kingdom, you enrolled at the University of the Witwatersrand. What did you study there?

MR GROSSKOPF: I studied towards becoming a teacher.

MR VAN DER BERG: You set out in paragraph 8 some of the experiences that you had at Wits. Would you read that into the record?

MR VAN DER BERG: Carry on with paragraphs 11 and 12?

MR VAN DER BERG: You set out in paragraph 3.13 the reasons why you left South Africa and joined the ANC. Would you read those into the record?

MR VAN DER BERG: Now in paragraphs 14 and 15 you deal with your departure from South Africa, that you went to Swaziland and from there onto Botswana, trying to make your way to Zambia. Is that correct?

MR GROSSKOPF: That is correct.

MR VAN DER BERG: And after some time you were granted refugee status and then found your way to Lusaka. Would you pick up the story at paragraph 16?

MR VAN DER BERG: You deal with your military training in paragraphs 19 and 20. Would you read those into the record?

MR VAN DER BERG: In the paragraphs that follow, you set out how you were recruited into special operations. Would you read those into the record please?

MR VAN DER BERG: Can I interrupt you there? You say that you were to be deployed as a single operative. Can you give the Committee a little more detail in respect of that?

MR GROSSKOPF: Effectively, it would mean that I would operate on my own and I believe that though I never chose to clarify this with my commanders, but I considered it a reasonable response from them, though it was based on two main concerns. One, the fact that I could not identify anybody inside South Africa whom I felt either willing or able to recruit into MK and for reasons of security and maintaining the security of all the operatives inside the country, it well may well have been felt not appropriate to introduce me to other operatives who were surviving clandestinely at that time.

MR VAN DER BERG: Thank you Mr Grosskopf. Paragraph 26, would you read that into the record?

MR VAN DER BERG: Please continue?

MR VAN DER BERG: The following paragraphs you deal with the aspect of civilian casualties. We know from the bundle and from the Police docket that a number of civilians were injured in this operation. Please would you read into the record paragraphs 31 and 32?

MR VAN DER BERG: You then deal with the initial operational planning in your modus operandi when you were in the country. Would you read that into the record?

MR VAN DER BERG: Mr Grosskopf, in respect of these dates which you set out here, have you relied on the bundle of documents, Exhibit B in the reconstruction?

MR GROSSKOPF: I have. I took the dates as were supplied in the bundle by the South African Police investigating officer. It follows the chronology of events as I recall but I cannot attest the accuracy of the dates which is why I speak of being around those times, around those dates.

MR VAN DER BERG: You then deal with the further reconnaissance and planning of this particular operation. Could you pick it up at paragraph 44?

MR VAN DER BERG: Can I just ask you to clarify there? What was discussed with the support unit?

MR GROSSKOPF: What was discussed? After debrief and discussion and further planning with Rashied, what was discussed, he instructed the support unit to supply to material that was necessary. The only issues that were discussed with the support unit were the practicalities of getting explosives and other arms to me. They assisted me in fitting it into the vehicle and in practical terms there was some discussion about border posts but it was not - they were at the time, to the best of my recollection, not aware through which border post I would return even. So discussion of detail with the support unit was not done.

MR VAN DER BERG: To the best of your recollection were they aware of the target?

MR GROSSKOPF: I would be extremely surprised if they were. We operated very strictly on a need to know basis. They knew and if they did not know, they would have been able to deduct from the amount of explosives that I took from Botswana that there would be a large operation, but they had no idea about the intended target or even which area of the country I was staying in.

MR VAN DER BERG: Thank you Mr Grosskopf. You deal with the explosives that you received from the support unit and how you transported this into the country at paragraph 48. Would you read that into the record?

MR VAN DER BERG: Please continue?

MR VAN DER BERG: Mr Grosskopf, can you explain to the panel what it was that you had in mind, what you had intended to achieve?

MR GROSSKOPF: What I had intended to achieve would be for the - if I understand your question to mean the object of the operation?

MR VAN DER BERG: Indeed.

MR GROSSKOPF: Right, the object of the operation was to attack military personnel inside Wits Command by blast damage to the building. The intention was therefore not to attack sentries or military personnel or civilians for that matter outside the command, the intention was to bring the car bomb into actual contact with the Wits Command building so that the effect of the explosion would be maximised.

MR VAN DER BERG: Would you read paragraph 60 and 61 into the record?

MR VAN DER BERG: You then deal with the incident itself, the events on the 30th July 1987. Perhaps before you do that, can I refer you to Exhibit B and page 75 of that bundle?

MR GROSSKOPF: Yes, thank you.

MR VAN DER BERG: You'll see that that is a sketch plan of the area itself. Can you take the Committee through that sketch plan, indicate where the vehicle was to be parked, where Wits Command was, etc?

MR GROSSKOPF: From my understanding of the plan - can I just refer to the person who drew the plan? It is my understanding that the plan was a sketch plan drawn by Willem Petrus du Plessis who was one of the soldiers on sentry duty at the time and that was his witness statement to the Police, would that be correct?

MR VAN DER BERG: I think that that is correct.

MR GROSSKOPF: Looking at the plan the person drawing it identified the Valiant bakkie, therefore the vehicle containing the car bomb as B. C was identified as a blue Cressida belonging to Paul Ehlers who was one of the soldiers also on sentry duty outside. G is indicated as the steps leading into Sterland Cinema Complex. H - Wits Command building. D, E and F being cars travelling in De Villiers or Court Street.

MR VAN DER BERG: Can you take the Committee through the reasons for choosing Court Street rather than either De Villiers or I think it's Twist Street on the other side of Wits Command?

MR GROSSKOPF: Of all the roads there were a number of considerations, one already having been alluded to, the fact that Court Street was certainly the closest, I'd say the quietest of all the streets around Wits Command. It was also a relatively narrow street meaning that the car would not have to travel very far, the intention being that the car parked where it was at B, next to Sterland, would actually cross Court Street on its own to make contact with the Wits Command building before exploding. De Villiers Street, as is shown on the map, is not one way traffic as Court Street is. It was therefore also a far busier road than any of the other, therefore both by way of perspective of success of the operation tactically and the likelihood of impact on civilians either on foot or in cars by parking in De Villiers or any of the other streets, both the success of the operation was less likely and the impact on civilians more likely. Also, if memory serves me well, if Twist Street ran parallel to Court, you could not park into a street going up the hill and there was also the consideration that at the back of Wits Command, which is where I parked in Court Street, the building was actually part of the fabric of the wall, therefore there would not be a wall stopping the car before it reached Wits Command. Because it was a one way road with only a single lane of traffic going down it, I would have far greater ability to delay the operation if a car was coming down which could therefore impede the ability of the bomb car to cross the road towards Wits Command.

MR VAN DER BERG: Thank you Mr Grosskopf. Would you pick the sequence up at paragraph 63 where you describe the incidents which occurred that day?

MR VAN DER BERG: Can I interrupt you there? Do I understand your evidence correctly that the planning and the execution of this operation you did on your own and that you were not assisted by anybody internally?

MR GROSSKOPF: There was nobody assisting me inside the country at all.

MR VAN DER BERG: Thank you. Would you continue at paragraph 74?

MR VAN DER BERG: The allegations that he made in respect of you, can you recall what they were?

MR GROSSKOPF: To best of my memory he accused me of an explosion outside the Johannesburg Magistrates' Court, the Wits Command attack and an attack at the Krugersdorp Magistrates' Court.

MR VAN DER BERG: If we just take those one by one. The Johannesburg Magistrates' Court, were you involved in that?

MR GROSSKOPF: I was not, I was not in the country at the time.

MR VAN DER BERG: You've testified already in respect of Wits Command and the last item that he mentioned was the bomb blast at the Krugersdorp Magistrates' Court. Were you involved in that?

MR GROSSKOPF: I was not and again if memory serves me well I was actually on Luanda Airport on that day.

MR VAN DER BERG: And are you aware that a unit named the Dolphin Unit has claimed responsibility and that evidence has been led in respect of the Krugersdorp Magistrates' Court bombing?

MR GROSSKOPF: I'm aware of that.

MR VAN DER BERG: Please will you continue? I think we had got to paragraph 78.

MR VAN DER BERG: You then deal with your involvement in the ANC Repatriation Committee?

MR VAN DER BERG: Thank you Mr Grosskopf. You've testified about your activities as an MK cadre and specifically in respect of the operation at Wits Command on the 30th July 1987. Is there anything that you would wish to add to your testimony?

MR GROSSKOPF: Thank you. I am proud to have played even a small part in the birth of a free South Africa and pay homage to all of those who suffered pain and death to achieve this. As a soldier in MK I share the sentiment of a statement in the ANC's second submission to the TRC on the 12th May and I quote:

I believe that violence can never be good, it can at best be necessary. The violence I encompassed other comrades used in the defence of our people was necessary, for the consequences of this violence, for any injury or suffering that I have caused, regardless of to whom, I feel deep regret and continued sadness. Thank you.

MR VAN DER BERG: Thank you Mr Grosskopf.

Mr Chairperson, I have no further questions at this time. Perhaps this might be an appropriate time to take the tea break?

CHAIRPERSON: Yes, thank you Mr van Der Berg.

Yes thank you, we'll adjourn for 15 minutes.

CHAIRPERSON: Yes Mr van Der Berg, is there anything else?

MR VAN DER BERG: There is not, Mr Chairperson.

CHAIRPERSON: Yes, Mr Richard?

CROSS-EXAMINATION BY MR RICHARD: Thank you Chairperson.

Mr Grosskopf, I believe that the point has already been covered but I need some classification. When you described yourself as a single operative, does that mean you worked completely alone?

MR GROSSKOPF: I worked completely alone inside the country, yes.

MR RICHARD: Now within the command structure of MK where would you have fitted in, under who and above who?

MR GROSSKOPF: I would have fitted in above nobody. I would have fitted in underneath special ops command.

MR RICHARD: And to whom were you responsible?

MR GROSSKOPF: To the commander of special ops, Rashied.

MR RICHARD: And then after that to Mr Dumakude?

MR GROSSKOPF: Yes that's right.

MR RICHARD: So you never belonged to any particular unit within South Africa or any structure within the Republic?

MR GROSSKOPF: I'm not sure I understand the question.

MR RICHARD: You were based outside the country?

MR GROSSKOPF: Yes.

MR RICHARD: But while inside the country you weren't associated with any particular structure?

MR GROSSKOPF: Are you referring to ANC or other structures within South Africa?

MR RICHARD: ANC within the borders.

MR GROSSKOPF: No.

CHAIRPERSON: In other words you were not part of an MK unit?

MR GROSSKOPF: Well I was part of an MK unit insofar as I was part of special ops. I was not part of any MK unit inside South Africa other than myself. I was the unit.

CHAIRPERSON: Inside the country you operated on your own?

MR GROSSKOPF: Completely.

CHAIRPERSON: Entirely?

MR GROSSKOPF: Entirely on my own.

CHAIRPERSON: Thank you.

MR RICHARD: That continues, now on the chronology you left the Republic in January 1986 and then except for the period around July 1987 when this operation was carried out, you never came back?

MR GROSSKOPF: That's right.

MR RICHARD: And while outside South Africa did you deal with operatives who returned to Angola or Botswana?

MR GROSSKOPF: Do you mean returned?

MR RICHARD: An operative was sent into South Africa, they came back, while you were outside South Africa would you have dealt with people who had finished their operation within South Africa and had gone back to ...(indistinct) they may be at?

MR GROSSKOPF: To the best of my recall, no. To the best of my recall, no.

MR RICHARD: Does the name John Dube mean anything to you?

MR GROSSKOPF: No.

MR RICHARD: Would you have recalled the name Silbert?

MR GROSSKOPF: Yes.

MR RICHARD: I don't intend, Chairperson, going very far on the ...(indistinct) cross-connected with other hearings.

CHAIRPERSON: Yes, please.

MR RICHARD: Thank you Chairperson. Now it's a simple question and if there's a simple answer I will leave it there and then. Did Silbert, also known as John Dube, ever discuss the killing of Sekelo Nglomu with you?

MR GROSSKOPF: No, I have not. To the best of my recall, I have never met him.

MR RICHARD: And when he returned from South Africa he wouldn't have reported to you?

MR GROSSKOPF: Well he didn't.

MR RICHARD: No, that's the end of that point. I take it no further.

Now let's go to the 30th July. How many times had you been to the scene of the car bomb attack on the Wits Command headquarters before that morning?

MR GROSSKOPF: Numerous times. All in all certainly more than ten times. I didn't keep a diary, I don't know the exact number. I'm aware that I went to Wits Command prior to going to Botswana to report back to Rashied and get material and I carried out further reconnaissance subsequent to that. More than ten I can't give you more.

MR RICHARD: It's not important, but you very familiar, you were highly familiar with the environment?

MR GROSSKOPF: Yes.

MR RICHARD: Now if we turn to page 75, that's of bundle B and we go to Sterland and there's a letter G which is described as a stairway?

MR GROSSKOPF: Yes.

MR RICHARD: Is that the main entrance to the movie complex?

MR GROSSKOPF: I don't know, I did not draw the map. There was an entrance in Court Street that too, again to the best of my recall, would run diagonally through the building, coming out in whichever the street north of De Villiers was. Whether that was the main entrance or not I don't know.

MR RICHARD: But it was, to put it in general terms, a principal entrance?

MR GROSSKOPF: It was an entrance, yes.

MR RICHARD: Now in the papers and I can't find my annotation, there's a reference to Mike's Kitchen. Would you be able to tell us where it is on the map?

MR GROSSKOPF: No, I would not. This was thirteen years ago.

MR RICHARD: I accept that. It's simply that, you would agree that a restaurant such as Mike's Kitchen is a popular place at that time?

MR GROSSKOPF: 9.45 in the morning? Hardly. I mean I once, when I was at school, worked at a Mike's Kitchen so I knew it as a steakhouse and restaurant, not an early morning cafe.

MR RICHARD: Do you recall whether the schools were on vacation or not as at July?

MR GROSSKOPF: To the best of my recall not and I seem to remember - well no, there on hearsay, to the best of my recall they were not.

MR RICHARD: Now on your reconnaissance would you agree that you were aware at all times that there was every probability that there would be pedestrians in and around the Court Street, De Villiers Street area?

MR GROSSKOPF: I was aware of that, yes.

MR RICHARD: Now was there any point in the day time, because this was a day time attack, at which time there wouldn't have been no pedestrians?

MR GROSSKOPF: During the day time no and which is why I timed it for the time when there would be the lowest number of pedestrians around.

MR RICHARD: Now it's very difficult to reconstruct after thirteen years but we note from the one bundle some 26, 30 people were injured. Now that leads me to the inference that at that point, whether it was 30 or 50 people in the environment, there were people trafficking backwards and forwards?

MR GROSSKOPF: Yes.

MR RICHARD: Now compared to your reconnaissance, at that point how many soldiers would have been in visible sight?

MR GROSSKOPF: Well, I would give you both a short and a more complete answer. The short answer is three with the sentries that were visible at the time. I will also remind you that the intention was actually to primarily attack the building itself rather than the soldiers who were on sentry duty at the time.

MR RICHARD: Now if one looks at page 75 again, your plan was to have the vehicle marked B to do a 90 degree turn and bring itself to a halt against the wall of the building. Now the wall of the building, how far away is it from the kerb of the street?

MR GROSSKOPF: Sitting here I don't know. It was a normal pavement but I'm not going to hazard a guess.

MR RICHARD: So if I put it this way, it's the distance of the pavement?

MR GROSSKOPF: Yes.

MR RICHARD: Now on page 75, that plan, where would the three soldiers have been? Would you recall?

MR GROSSKOPF: From memory, the soldiers that I could see stood on the two corners in Court Street. There was one group of two and one single, I cannot recall on which corner there were two soldiers, on which there was one.

MR RICHARD: I'm not sure whether it's intended to be an A, but if one looks at this, there's an A on the one corner of the Wits H.

MR GROSSKOPF: Yes.

MR RICHARD: And that's where some soldiers, one or two, and then on the other corner the other one or two?

MR GROSSKOPF: That's right and if I can refer you to the plan on page 76 it indicates at least on this and I will only add that this is not my sketch and that there were - two soldiers stood on this corner.

MR RICHARD: Now in your construction of the bomb, was the bomb designed to achieve any particular purpose? Was it designed to do particular types of damage?

MR GROSSKOPF: Yes.

MR RICHARD: What sort?

MR GROSSKOPF: It was designed as far as was possible in the circumstances to create a very strong shock wave rather than emit shrapnel in order to attack the fabric of the building and thereby attack the soldiers and senior officers whom we knew to be inside.

MR RICHARD: How were the explosives placed in the vehicle?

MR GROSSKOPF: They were placed in a steel trunk in the back of the vehicle.

MR RICHARD: In other words the height of the duct board at the back of the bakkie?

MR GROSSKOPF: Yes.

MR RICHARD: Were they packed into the steel trunk in any particular manner?

MR GROSSKOPF: They were, they were packed - I just trying to think of words to describe it without getting into sketches. If you take the rectangular shape of a steel trunk, they were packed along practically to fill the trunk. Behind them and behind - therefore being furthest away from the front of the vehicle, I placed the four hollow charges that I referred to in my statement and the source of detonation was, for the whole lot, was from those hollow charges therefore to direct the force of the explosion towards the front of the vehicle which had the operation gone entirely to plan, would have been directed mainly towards the ...(indistinct) command itself.

MR RICHARD: Now if the vehicle had done its right hand turn and collided with the wall, at what angle would the vehicle have hit the wall?

MR GROSSKOPF: About perpendicular to it, in other words at a right angle.

MR RICHARD: At a right angle, so that means the trunk in the back of the light delivery van and the engine and cab of the bakkie would have been between?

MR GROSSKOPF: Yes.

MR RICHARD: So then had you examined the fabric of the wall against which it was planned that the vehicle would come to a standstill?

MR GROSSKOPF: It was a brick as far as I recall.

MR RICHARD: Now during your training had you been given any explosives training?

MR GROSSKOPF: I have.

MR RICHARD: And so that means I'm not going to have to spend time going through the fact that on an explosion both the gaseous and the shrapnel take the line of least resistance and go the opposite direction to the maximum resistance?

MR GROSSKOPF: Sorry, can you just rephrase that?

MR RICHARD: Oh, I'm sorry, I might have convoluted the question. When an explosion goes off the matter produced by the explosion, whether it be gas, fire or shrapnel, takes the line away from the explosion of least resistance?

MR GROSSKOPF: The short answer to that is I am not sure. I am aware because to the best of my recollection from my training many other considerations in the direction that an explosion would take, very important among those are the shape of the charge and the source of detonation.

MR RICHARD: Amongst other things?

MR GROSSKOPF: Amongst other things, certainly.

MR RICHARD: I don't want to belabour the record with a long technical debate about - the reality of the matter was that, as planned, the explosion would take place against a wall which would act as a device that would cause the effect of the explosion to bounce back into the street away from the wall and not through the wall?

MR GROSSKOPF: Surely that would depend - no, honest, I can't quite see that the direction is going but to answer your question and that would surely depend on the size of the explosion and whether the wall was actually knocked down or not. If the wall was actually knocked down then the main force of the explosion would not bounce back, it would continue through the hole that was created by the explosion.

MR RICHARD: But a considerable amount of the explosion would radiate back into the street?

MR GROSSKOPF: There would be explosive force in all directions, in a full circle, that is certainly true and the way the charge was constructed was to ensure that the greatest proportion of that force was directed towards the front of the vehicle.

MR RICHARD: But none the less we had a situation where there's a building, which is the target, the military building - legitimate, no query on that, surrounded by civilian streets in which civilians are walking, three visible soldiers in the street, so it's obvious to me that you did foresee that there would be civilian casualties?

MR GROSSKOPF: Again I would like to answer that question at some length. At the risk, Mr Chairperson, at belabouring the point and going into lots of documents that had already been before the Commission at various time, I would like to make the point that - sorry, where were we? The South African Defence Force, contrary to Geneva protocols, did place military personnel and military targets within a civilian area. I'm not going to say that I have no responsibility for the attack on the operation but it was not purely by coincidence that a very important military headquarters was placed in a civilian area. That does not in any way or shape or form alter the fact that yes, I was aware that there was the possibility of civilian injuries and on a policy level that had been dealt with by statements of for example President Tambo in '83 and the Kabwe Conference in '85 ...(intervention)

MR RICHARD: We'll return to that point but let's look at it this way. You say you were born in 1963 and you came to Johannesburg in 1965?

MR GROSSKOPF: Yes.

MR RICHARD: For how long had you been aware of the existence of the place called Wits Command in Court Street or that area of town? It had been there all along, it wasn't a new building?

MR GROSSKOPF: I don't understand. I don't understand what -by the two years of my infancy in Bloemfontein has to do ...(intervention)

MR RICHARD: I'm saying that Wits Command had been in Johannesburg from the day that you had arrived in Johannesburg?

MR GROSSKOPF: Certainly.

MR RICHARD: So I would submit to you that it's nonsense to say that Wits Command was positioned where it was as a result of some deliberate strategy to mix military operations in the middle of civilian areas which had been there since the previous war?

MR GROSSKOPF: And?

MR RICHARD: So your statement that ...(intervention)

MR GROSSKOPF: I did not say it was built subsequent to my birth by deliberate design, what I'm saying that whoever chose to site the command, as many other commands, in densely populated areas, have to accept some responsibility. I'm quite aware it was not the apartheid State which attacked Wits Command, I'm quite aware of that but what I'm saying is that they also have to accept some responsibility for the way in which they chose to govern this country and that includes siting headquarters in populated areas.

MR RICHARD: Were you aware of what went on on the other side of the wall within the Wits Command building?

MR GROSSKOPF: I had some idea, yes.

MR RICHARD: What?

MR GROSSKOPF: It was a military headquarters which meant that a lot of the operations that were planned within Wits Command would be planned and administered and supported from there.

MR RICHARD: Now the primary objective of the bomb was to do damage within the building. It's natural that it had to be a very big bomb?

MR GROSSKOPF: That's right.

MR RICHARD: And so that means the corresponding damage to the area around it on the outside of the building would be that much larger as well?

MR GROSSKOPF: That is true.

MR RICHARD: Now the point I've made which I don't think is in dispute is you really didn't know what happened inside the building immediately off the street other than the fact that it was a military building and you didn't know whether there was any particular officer or ...(intervention)

MR GROSSKOPF: It was not an attempt at assassination, so it was no particular officer who was being targeted.

MR RICHARD: Now - or for that matter it might have been a storeroom on the other side of the wall?

MR GROSSKOPF: It is possible.

MR RICHARD: Now you made mention of Kabwe. What happened in Kabwe?

CHAIRPERSON: In what context, Mr Richard?

MR RICHARD: The Kabwe Conference ...(intervention)

CHAIRPERSON: Yes, but be specific, what must the applicant tell you, must he tell you the whole history of Kabwe or what? What do you want to know?

MR RICHARD: Chairperson, I'll put it this way. I have before me various documents one of which is styled "The Report of the Main Decisions and Recommendations of the Second National Consultative Conference of the African National Congress - Zambia, June 16 - 23 1985." That's the Kabwe Conference. Now the context that you mentioned it in was that civilian casualties were discussed at that conference?

MR GROSSKOPF: Yes.

MR RICHARD: Now my question is - and I've never quite understood the exact position - what was the essence of the policy post-Kabwe towards civilian casualties?

MR GROSSKOPF: I think I shall refer to page 65 in the ANC's second submission to the TRC, May 1997, paragraph 4.3.1, at the bottom of the page:

That is the context within which I placed that.

MR RICHARD: In other words it's plain to me that two things flow from that. At no stage was it permissable for an attack to take place which would have had merely civilian casualties without a military component or a security component. Is that correct?

MR GROSSKOPF: In my understanding of it, yes.

MR RICHARD: Now as in this particular situation it was obviously perfectly permissable to attack, to use the words, the army and police and so-called defence units?

MR GROSSKOPF: That's right.

MR RICHARD: Now the next question is, when would civilians and civilian casualties as a consequence of an attack on a military establish persuade a person not to carry on an attack? In other words, when would the number of civilians about to be injured not justify the attack? How would you determine that?

MR GROSSKOPF: That's a very complex question you're asking. You would determine it clearly on the basis of the most accurate information possible. You would also determine it on the basis of discussion with commanders but I cannot refer you a pat formula of soldiers versus civilians if that's what your asking.

MR RICHARD: In this specific instance we have a situation where you've certainly been there on somewhere around ten times, I don't mind whether it's eleven or nine, that's neither here nor there. You're physically there when the bomb is about to be planted and you see three soldiers and you see civilians in the street. You know three soldiers might be injured, some damage might be done to a building and you do not know what injuries might happen inside the building. But you know for certain that civilians are going to be hurt?

MR GROSSKOPF: Is that a statement or a question?

MR RICHARD: My question is, is my outline of the situation you were in correct?

MR GROSSKOPF: Yes.

MR RICHARD: Now the next thing that fits into the situation that you were in is you are in complete control of what is going to happen. There are three switches which you must choose to turn on to cause the device to explode. In other words, you can abort the mission at any time. Now it's quite correct, and this is the question, that in that situation you decided to go ahead despite the probability of a significant number of civilian casualties versus an insignificant number of military casualties?

MR GROSSKOPF: I find the whole issue of how - I'll start from the beginning again. I find the issue of trying, you know, of trying to bandy about what the actual numbers of casualties in some ways quite distasteful. I also would like to stress that what I said in the conclusion of my statement that for me all life is sacred and that is an absolute. I mean I'm aware that in three different - from three different sources there are three very disparate accounts of the number of people injured and whether anybody was actually killed or not. The Police reports certainly indicate none. So whether one number of casualties was significant or was more significant than another, one group was insignificant is a statement I have to reject but I have to accept that when the charge was placed and yes, you are right and as I said in my own statement, that I have to accept moral responsibility for the consequences of my actions, which I do. And yes, I did foresee the possibility of civilian casualties by virtue of certainly the construction of the charge and the decision not to add additional shrapnel to what would be contained in the vehicle and the charges themselves, but to attack the fabric of the building with the force of a blast was an attempt to limit the impact and injuries to civilians to the greatest extent I possibly can. But we also have to realise that at that stage South Africa was in a state of war, that there was a civil uprising against apartheid and that if we, as the ANC and as uMkhonto weSizwe, had actually totally held our hands from striking at the enemy then we may very well not be in the position where we are today, where we are in a free and democratic country. I do not believe that there was the possibility of carrying out military operations against the apartheid State that would not have endangered civilians.

MR RICHARD: What was your attitude to the civilians you saw in the street that morning at quarter to ten. What did you see them as?

MR GROSSKOPF: As people. As I saw the soldiers, as people.

MR RICHARD: Did you see them as your enemy? I'm talking about the pedestrians, the civilians?

MR GROSSKOPF: Certainly not.

MR RICHARD: In other words you saw no reason why you should attack them?

MR GROSSKOPF: I did not and still do not see myself as attacking them.

MR RICHARD: You saw three soldiers?

MR GROSSKOPF: I did and I saw military headquarters.

MR RICHARD: Now I go through it again. You knew for certain that the pedestrians who were nameless civilians, who were not your enemy, would be the principal casualties, not soldiers or the military building?

MR GROSSKOPF: I disagree with that entirely. In terms of principal casualties, no. I would just like to make something clear about my view or the way I perceived the people who would be exposed to the explosion that I was about to cause. I was quite aware that there could be kids I went to school with inside that building. I was aware of that. The vast majority of children I went to school with, at least the boys, end up either in the South African Defence Force or in the Police. I knew they had faces, I knew they had people, they were not some amorphous enemy. But at the same time, the system that they chose to be a part of was killing people in their hundreds and their thousands and that had to be resisted.

MR RICHARD: I have a very simple situation. There's a military installation with soldiers, whoever they may be, inside. You are a solider?

MR GROSSKOPF: Yes.

MR RICHARD: Within the context there's nothing untoward, tragic though it may be in a South African context that you attack a military installation. But in the factual situation of that morning, I am going to argue and I'm giving you a chance to rebut it, that you knew perfectly well that your damage to the building would be material, not significant. In other words, you damage the fabric of the building. Injuries to civilians and civilian property would be large and at best you could have hoped for three military personnel which were obvious. In other words, it was not an attack. You knew what a car bomb was. You knew its effect. What do you say to the proposition?

MR GROSSKOPF: There are many propositions in there. Which proposition are you speaking of?

MR RICHARD: Did you attack, as I will argue, the civilians in and around a military establishment or did you commit a legitimate act of war?

MR GROSSKOPF: I committed a legitimate act of war.

MR RICHARD: Despite the fact that you knew that the overwhelming preponderance of damage and injury would be to civilians?

MR GROSSKOPF: That I reject utterly. Had the operation gone to plan then I personally very strongly believe that the vast preponderance of damage would have been suffered by SADF personnel. But I must say that with hindsight had the operation succeeded in its full intention, there would have been probably a significant number of soldiers killed. To the best of my knowledge and I'm going by figures, as I say, I don't want to ...(indistinct) but to the best of my knowledge, nobody actually died in this attack. I am, in some ways, quite relieved that there were not five or ten or however many funerals as a consequence of that because life, whether that life is in uniform or that life in civilian clothes, is a life.

MR RICHARD: What went wrong?

MR GROSSKOPF: I don't know. I know the car did not move. I don't know. I can speculate that the gear selector did not move out of neutral, that would be the only explanation that would fit the facts as I know them, which would be that the electrical switch running the wiper motor was clearly working because I and other witnesses all heard the car revving, but it did not move off as far as I know. So that is supposition, I don't know that for a fact.

MR RICHARD: Now what you're saying is the mechanics of the device didn't work? The bomb didn't ...(intervention)

MR GROSSKOPF: Yes.

MR RICHARD: Now was that a foreseen possibility?

MR GROSSKOPF: It was a possibility but I tried to rule out by very extensive tests all of which were successful.

MR RICHARD: Are you an engineer?

MR GROSSKOPF: No.

MR RICHARD: Mechanic of any description?

MR GROSSKOPF: I'm not.

MR RICHARD: So I'm correct in saying that this device whereby the car would get out of neutral into drive, the bakkie to be more precise, was in fact an amateurish device?

MR GROSSKOPF: If by amateurish you use it in its proper sense of a non-professional, that I'm not a mechanical engineer, that's true. I don't see the relevance, particularly.

MR RICHARD: The point is, you're not an expert in making mechanical devices that will on a pre-planned nature that will set a car into motion within 30 seconds of you pressing a button?

MR GROSSKOPF: You're right, but may I remind you that this was a national war and if we expected only professionals in every possible aspect of the endeavour to be doing it, apartheid would still be reigning and as a consequence, you know, I would like to remind you that as a consequence of people who made mistakes, very often MK cadres were the ones to die themselves. The risks were very great, that is true. The risks were also very great for those participating in it and the consequences of us not engaging in armed struggle were far, far greater. I mean, at the risk of belabouring the issue and going to policy statements, going a long way ago, people were dying in their hundreds and had done for a very long time.

MR RICHARD: I'm not going back into the training you received. You've covered that ground by saying that you were aware of the distinction between a legitimate target and what would be inappropriate. I haven't had a quarrel with your answer, but we now have a factual specific situation which is not theoretical, it's very immediate, where there's a device parked on the left hand side of a road, in other words the entire road width away from the target with a non-professional, to avoid the word amateurish, mechanical device which is designed or planned to get it to drive across the road and stop at right angles to a wall. Surely you foresaw that if it went on that corner, as opposed to where it was intended to go, it would look very much like an attack on the civilians who so happened to be in around a military building?

MR GROSSKOPF: I would ...(indistinct) up the last part of that first, is that even the newspaper reports which got their information from the Police the day after and identified as an attack on Wits Command. So the fact that the car was there was even then, so it was not seen at the time as attack primarily on civilians. But I would like - I mean I accept, you may not, I don't know, I accept as an article of faith that the South African people had a right and an urgent need to defend themselves. Within that context, what would you have me do?

MR RICHARD: Now I put the question this way. If, as we have it here, vehicle B on page 75, were deliberately parked there and intended to explode near the entrance to a cinema complex, would it really matter that there was a military building across the road?

MR GROSSKOPF: Clearly in the view of the South African press and Police for that matter yes, because for all intents and purposes, that is what happened because as far as I know, at least, certainly the bakkie did not start moving. Yet from the afternoon of the 30th it was seen as an attack primarily on Wits Command.

MR RICHARD: However, the facts are ambiguous. It's capable of either construction.

MR GROSSKOPF: That was not the interpretation that was given by people including the Police the very same day.

MR RICHARD: Now if we look at it this way, certainly a choice was made to attack the Wits Command headquarters. Now would it have made any difference to your objectives if the attack had taken place at 3 a.m. in the morning or 10 a.m.?

MR GROSSKOPF: It would, yes.

MR RICHARD: Why?

MR GROSSKOPF: At 10 p.m. - well, okay ...(intervention)

MR RICHARD: At 3 a.m. in the morning.

MR GROSSKOPF: At 3 a.m. in the morning, the chance of actually being able to carry out an operation like that would have been very negligible, the chance of my actually being able to park the car and get away with it, were infinitesimal. At the same time I remind you that the primary purpose of the attack was not just to blow a hole in the wall, the primary purpose of the attack was the senior officers inside Wits Command who would not have been present at 3 a.m.

ADV SANDI: Sorry Mr Grosskopf? At that time at 3 a.m. in the morning, what are the chances of you being apprehended in that area and getting arrested?

MR GROSSKOPF: Massive, I do not think I could have attempted the operation unless I was willing to have that as a suicide mission which I chose not to do.

MR RICHARD: Let us turn to page 82 of bundle B. I assume you can still read Afrikaans?

MR GROSSKOPF: I can.

MR RICHARD: Have a look at paragraph 6 at the foot thereof. My impression is that you did a U-turn before parking the car, is that correct?

MR GROSSKOPF: That's not my memory of it, no. I don't think it's particularly pertinent to the issues but that's not my memory of it, certainly.

MR RICHARD: No, would you then please tell us, when you arrived in the vehicle which street did you use to come to that particular corner?

MR GROSSKOPF: From memory I don't know. I would certainly be very surprised if I made a U-turn against the flow of traffic in a one way road, but whether I came further up from Court Street down it or turned right or left from De Villiers I don't know.

MR RICHARD: Now when you approached the scene at some time shortly before quarter to ten that morning, what would you have done if the parking bay where B is designated were occupied?

MR GROSSKOPF: I would have gone round the block until such time as I could find parking which is after all what people often do in city centres, go around the block until parking is available.

MR RICHARD: Now did you - were you lucky on the first pass?

MR GROSSKOPF: I was. From memory, I mean I cannot remember having to go around the block, but you know it was thirteen years ago, I'm not going to swear as an absolute truth, I have no memory of it.

MR RICHARD: Now between stopping in the parking bay and detonating the bomb did you at any stage get out of the vehicle and get back into it?

MR GROSSKOPF: No.

MR RICHARD: Then have a look at page 83 of bundle B:

Do you remember that?

MR GROSSKOPF: No.

MR RICHARD: Did you speak to anyone?

MR GROSSKOPF: No.

MR RICHARD: It is possible it may have been said without my hearing it, I certainly did not hear anybody speak to me.

MR GROSSKOPF: Because the deponent of this affidavit is correct in many other particular details:

You know, that sort of particular detail is there?

MR GROSSKOPF: There were some errors in it as well. I mean the issue is not in dispute that I planted the car and that it exploded. So whether it was a first or second try at parking I fail to see the relevance.

MR RICHARD: The relevance is that I find no particular reason to disbelieve this deponent, Mrs Claassen, who if she were called to give evidence would say she saw you there, she spoke to you, you saw the civilians in and around the environment. My question is, did you look them in the eye and think "I am now going to detonate a bomb which may kill them"?

MR GROSSKOPF: Yes. Yes.

MR RICHARD: Subject to my client, no further questions.

CHAIRPERSON: Thank you Mr Richard. Mr Mapoma any questions?

CROSS-EXAMINATION BY MR MAPOMA: Just one, Chair-person.

Mr Grosskopf, when you were debriefed by the commanders in Zambia I take it that you explained to them what happened and how the operation went?

MR GROSSKOPF: I did.

MR MAPOMA: And was the operation regarded a success?

MR GROSSKOPF: It was.

MR MAPOMA: Thank you Chairperson.

CHAIRPERSON: Thank you, Mr Mapoma. Has the panel got any questions?

ADV BOSMAN: Thank you, Chairperson.

Mr Grosskopf, I have a technical difficulty here. In your application you apply for amnesty for the Court Street, Johannesburg, outside Witwatersrand Command SADF relating to the bombing but in the further particulars on page 10 of the bundle you mention three mentions for which you apply:

Can you just assist me here? Is there any direct link between the creating a cache of military material and the attack on the Witwatersrand Command?

MR GROSSKOPF: No direct link at all, Adv Bosman, it was material that I took into the country at the same time as the explosives used then. When I took the decision that I will carry on with the operation, such material was not needed, I established in a cache.

ADV BOSMAN: I see. Is there any reason why you did not mention this in your application form?

MR GROSSKOPF: I did not consider it particularly relevant and it was only in discussion with Ms Patricia Whittle of the Amnesty Committee in Cape Town, that she advised that it might, even though it was unrelated to the main issue that it might as well be to mention it.

ADV BOSMAN: Did you have any assistance when you completed the form?

MR GROSSKOPF: The initial form?

ADV BOSMAN: The initial form, yes.

MR GROSSKOPF: No, I did not.

ADV BOSMAN: I see, so you hadn't been advised at that time?

MR GROSSKOPF: No.

ADV BOSMAN: And then as far as the third incident is concerned, the non-combat support, I don't recall having heard particular evidence in that regard. What were you referring to there, in non-combat support?

MR GROSSKOPF: When I returned from the Soviet Union at the end of 1988 I was deployed in the command structure of special ops under the command of Lester Dumakude at the time. It was intended that it would be assistance with the planning operations and as I speak, I could recall one operation which was cancelled in Zimbabwe, which probably took out a good six months of that time, where most of the command structure went to Zimbabwe to carry out reconnaissance and planning. It was abandoned probably about a week before the intended operation was carried out and there was also a plan, which did not come to fruition, to attack the fuel installations in Durban. But again, that did not come to fruition. At the same time I did most of the administration for the special ops unit at that time.

ADV BOSMAN: Okay, so this relates to sort of general acts outside the country?

MR GROSSKOPF: Yes.

ADV BOSMAN: Outside the country?

MR GROSSKOPF: Yes, I was entirely outside the country. I did not at the time debrief any of the cadres that came back.

ADV BOSMAN: Just one more question. Was this also included on the advice of Ms Whittle?

MR GROSSKOPF: It was.

ADV BOSMAN: Thank you Chairperson, that will be all.

ADV SANDI: Thank you, Chairperson.

Mr Grosskopf, I understood you to say that at the moment you are based in the U.K.?

MR GROSSKOPF: I am.

ADV SANDI: Yes, I must first apologise that I'll be asking you a question that does not really have anything to do with the merits or demerits of your application. Don't you think it would be a waste of human resources for someone like yourself to be sitting outside there, not coming back to be part of the solution to some of the problems people are trying to address here today?

MR GROSSKOPF: First of all, thank you for the compliment inherent in that. Yes, you are right. However, it will for personal reasons not be possible for me to return and bring children with me and as a result, I'm not willing to put that strain on young children to be without their parents. So yes, it is a sentiment I share.

ADV SANDI: Thank you. Thank you Chair.

CHAIRPERSON: Thank you very much. Mr van Der Berg, any re-examination?

MR VAN DER BERG: No Mr Chairperson.

CHAIRPERSON: Yes Mr Grosskopf, thank you very much. We'll excuse you. Mr van Der Berg, anything else?

MR VAN DER BERG: No Mr Chairperson, that's the case for the applicant.

CHAIRPERSON: Mr Richard, any evidence? Mr Mapoma?

MR MAPOMA: I've no further evidence, Chairperson, thank you.

CHAIRPERSON: Yes Mr van Der Berg, have you got any submissions on the merits of the application?

MR VAN DER BERG IN ARGUMENT: Very briefly, Mr Chairperson.

The applicant's political motivation and the applicant's position within the African National Congress and within MK is not in dispute. As the common cause issues, the only issue which may be in dispute may be related to proportionality. In that regard my submission is that based on the evidence of the applicant, this was an attack aimed at the Wits Command. It was an accepted military establishment. The primary motive for the attack was an attack on enemy personnel and enemy installations. I think that it falls squarely within the ambit of what the ANC and MK were about at the time. Mr Grosskopf has testified at some length about the precautions he took in respect of civilian casualties and the manner in which he approached that and whilst the various propositions were put to him by Mr Richard, I don't believe that those propositions in any way impact on the manner in which this operation was carried out. The considerations which Mr Grosskopf applied his mind to in the planning and execution of the operation. It's my respectful submission that the applicant has fulfilled the criteria of the Promotion of National Unity and Reconciliation Act and that he fulfils all the criteria which are required and that he is entitled to amnesty in respect of - well, there's a debate as to whether anybody was killed in this matter. It would appear from the papers before us that there were no deaths but he certainly would be entitled to amnesty in respect of attempted murder and related incidents on the 30th July 1987. I don't believe that there's anything else that I need to address you on, Mr Chairperson.

CHAIRPERSON: Just on the other - you're also asking for amnesty in respect of the arms cache that was established?

MR VAN DER BERG: That is correct, Mr Chairperson, added in through the correspondence with Ms Whittle. I'm aware of the debates which have gone on with previous panels and Committees as to the extent that he is bound by the four corners of his amnesty application.

CHAIRPERSON: Yes and the other incidents?

MR VAN DER BERG: The other incident really relates to logistical support, planning and operational support for operations which did not materialise. So whether that's amnestiable or not, I suppose it's really up for debate.

CHAIRPERSON: What is your submission?

MR VAN DER BERG: There were no gross human rights violations arising from that planning, from the work that was done in respect of operations which did not come to fruition. So in the strict sense I would think that there's no offence which has been perpetrated. There may be an argument about conspiracy but I leave that in the panel's hands, Mr Chairperson.

CHAIRPERSON: Thank you Mr van Der Berg. Yes, Mr Richard?

MR RICHARD IN ARGUMENT: Thank you Chairperson.

Very shortly, I start with the objective facts. A vehicle, with a very large and powerful bomb, is parked outside a cinema complex. The cinema complex is across the road from a military establishment. We know for certain that the car bomb did not explode in or on the property of the military establishment. Next factor, there are three soldiers in visible killing range of the car bomb and many civilians. And the third most important point of those that I emphasise is that this area is a down town city centre teeming with civilians. The applicant seeks to justify his action on what I can dismiss as a mere spades, a mere hope, that what I do describe as a highly inept and amateurish device, if he is to be believed, that will propel the vehicle across the road, through traffic, over a pavement and against the wall. On those facts there's an obvious and clear inference that must be drawn. Civilians must be hurt.

CHAIRPERSON: Well, Mr Richard, you must add to your objective facts, that's going back to this device, that it was tested over some time and it appeared to have operated properly.

MR RICHARD: Is that an objective fact? The fact where the bomb exploded is objective, the other is a statement of what's intended.

CHAIRPERSON: Yes, then is there any basis, are you suggesting that we should reject the applicant's version on that aspect?

MR RICHARD: I haven't said that, I've got no basis to say that we can reject it.

CHAIRPERSON: Well would it then not be part of the objective facts?

MR RICHARD: I accept that the applicant's version is that it was tested and did work when tested. In the nature of these applications there's nothing besides the applicant's ipse dixit that we have to gone on that I really have no particular reason to criticise his versions in that particular context and I don't.

CHAIRPERSON: Yes.

MR RICHARD: Now to progress to that point, if the operation had gone as planned notwithstanding that fact, we now have a light delivery van with a bomb in its container at the back that is not immediately against the wall that will explode, still causing obvious injury to the civilian environment around it. Now we then look to sub-section 3(d) of Section 20 of the Act. Was this act primarily directed at a political opponent or State property or against property? The word primarily to me is important. To say it was primarily intended at anything in particular other than the environment in which it was placed is wrong. It was clear that the attack would damage civilian property and civilian people and it is not so clear that the damage to State property or military equipment was anywhere near as obvious.

ADV BOSMAN: But Mr Richard, to ascertain whether it was primarily directed at the military headquarters or a property, shouldn't one look at the subjective belief of the applicant?

MR RICHARD: Take Exhibit A and ...(inaudible). I haven't counted how many paragraphs he deals with his subjective orientation and beliefs about what he was doing in relation to the struggle. Those paragraphs stand as they are written. Certainly on a subject to perception he is in the situation and not here to argue my learned colleagues case. He has the instructions and orders from above, many planning sessions and his beliefs. However, the objectives circumstances of which he's in, I don't believe that with all the good intentions and the will a person is entitled to commit what would ordinarily be at international law a wrong simply because he believes it might be right in his context.

CHAIRPERSON: But Mr Richard, I mean, is there - seriously, is there any other objective, primarily or otherwise, then the attack upon this military headquarters?

MR RICHARD: My submission ...(intervention)

CHAIRPERSON: On what conceivable basis can we find any other objective?

MR RICHARD: Chairperson, on the facts I argue and I leave it there that there was an attack on a military installation, I never disputed that in my cross-examination, but also the attack involved an attack on the environment in which the bomb would be placed so that meant ...(indistinct) with whether the question - to use the catch phrase nowadays "the collateral casualties".

CHAIRPERSON: Yes, but what is your submission on Section 23(d)? Which was the primary target?

MR RICHARD: I'm saying that that environment was the primary target and to distinguish between the civilian and the military my argument goes is to ignore the fact that more damage and more injury would be done to civilians than to anything else.

CHAIRPERSON: Yes, yes, that's a different point. The point of Section 23(d) is identifying a target. Now was it Sterland or was it Wits Command?

MR RICHARD: My submission and I leave it there is as a result of where the bomb was placed, the proximity of everything to the bomb, to say that the primary intention was to only attack, the military installation is incorrect. It was an attack on whatever was around the bomb.

CHAIRPERSON: You say he was attacking both. He was attacking Sterland and he was attacking the civilians?

MR RICHARD: Yes.

CHAIRPERSON: And he was attacking whoever was in the vicinity and also attacking the Wits Command?

MR RICHARD: Yes.

CHAIRPERSON: Yes. Well I've noted that. Does that conclude your submission on 23(d)?

MR RICHARD: And then I go to proportionality.

CHAIRPERSON: Yes.

MR RICHARD: I do not need to labour it. The evidence speaks for itself. It was obvious that there were three soldiers in the vicinity and many civilians. It was also obvious that civilian property around would be damaged and in that regard we need only look to the schedules annexed to bundle B. Now taking into account that the applicant has conceded that the civilian injuries and damage was probable and could be foreseen, my argument and submission is that the consequences of the attack and its nature were completely disproportionate to the value of blowing a potential hole through a wall of a military building.

Then my final point which I add on and also as it's been argued before in other hearings I will not labour it, is intrinsic in the Act is that the Norgaard Principles do apply. Now proportionality, as per Prof Norgaard, would have extended to use the case I've often quoted before - the car park incident. Where to place a bomb in a car park planned to detonate late at night was not acceptable. On that precedent neither would be planting a car bomb outside a cinema complex even though there might be some benefit in it damaging a military installation. And that is my submission.

CHAIRPERSON: Was there anybody killed here? Was there anybody killed? Nobody killed.

MR RICHARD: ...(inaudible).

CHAIRPERSON: Yes, you were saying that there's an annexure to one of the bundles indicating the victims. Is it B?

MR RICHARD: It's B. The last - from page 114 onwards there's a schedule.

CHAIRPERSON: Onto the end?

MR RICHARD: Yes.

CHAIRPERSON: Yes.

MR RICHARD: And then in bundle - the bundle I received on Saturday, at pages 33 onwards.

CHAIRPERSON: Yes.

MR RICHARD: As the Committee pleases.

CHAIRPERSON: Thank you Mr Richard. Yes, Mr Mapoma?

MR MAPOMA: Chairperson, I leave it in the hands of the Committee. I have no submissions thank you.

CHAIRPERSON: Thank you Mr Mapoma. Mr van Der Berg any reply?

MR VAN DER BERG IN REPLY: Just a very brief aspect Mr Chairperson. The suggestion that - and I don't think it was put very, very strongly by Mr Richard but certainly an element of it was flown as to a suggestion that the target was anything other than Wits Command and the suggestion that it was a matter of convenience that Wits Command was there and that the target was something else, Mr Chairperson. That proposition was never put to Mr Grosskopf and certainly I don't think that you can attack any weight to that argument. The applicant's evidence has been quite clear that the primary target was Wits Command and it's correct as Adv Bosman asked Mr Richard, it's the applicant's subjective belief which one needs to look to and the surrounding circumstances and facts to which he's testified to. As the Committee pleases.

CHAIRPERSON: Yes, thank you Mr van Der Berg.

Yes, that concludes the formalities in regard to the formal proceedings in regard to this application. The panel will consider the matter. The material that has been placed before us, the evidence and the submissions on behalf of the parties and we will take some time to formulate a decision on the application. In the circumstances, the decision in this matter will be reserved.

We take the opportunity to thank the legal representatives for their assistance in this matter, Mr van Der Berg on behalf of the applicant, Mr Richard and your client for having attended the proceedings and participating and Mr Mapoma for your usual assistance and of course also to Mr Grosskopf for having come and having participated in the proceedings. It is important in the overall importance that we establish as much of the facts and circumstances surrounding the political conflict in this country as possible through the process, as been established. And it is of importance to have the various perspectives placed before the country to understand.

We will then excuse Mr van Der Berg and Mr Richard if you so wish and we thank you once again for your assistance.

We have the details of your client in regard to the question of possible victimhood.

MR RICHARD: ...(inaudible)

CHAIRPERSON: Yes, so perhaps you can just convey that to her again. Very well.

MR RICHARD: ...(inaudible)

CHAIRPERSON: Yes, so perhaps you can convey all of those facts which are very relevant. Yes, thank you very much for your assistance. Thank you.

CHAIRPERSON: Mr Mapoma, what is next?

MR MAPOMA: The next matter, Chairperson, is that of Mr Mashoala.

CHAIRPERSON: Do you need a few moments or are you able to just proceed?

MR MAPOMA: I think we can just proceed, Chairperson.

CHAIRPERSON: Very well. We'll then excuse whoever wants to be excused.

MR MASHOALA: Mr Mashoala

CHAIRPERSON: If you'll just give us a few moments, we're just waiting for the bundles to come down then we can start.

Yes, I think we're ready to proceed. The next matter on the roll is the application of Enoch Moeseng Mashoala. The amnesty reference number is AM7078/97.

The panel is constituted as would be apparent from the record. The Leader of Evidence is still Mr Mapoma. I am going to afford an opportunity to Mr Joubert to put himself on record on behalf of the applicant.

MR JOUBERT: Thank you Honourable Chairperson and Members of the Committee. H P Joubert from Pretoria Bar on behalf of the applicant in this matter.

CHAIRPERSON: Thank you Mr Joubert. Do you want your client to be sworn in?

MR JOUBERT: Honourable Chairperson yes, he will testify under oath and he will choose to testify in Swana.

CHAIRPERSON: Yes, we do have the interpreter available.

ENOCH MOESENG MASHOALA: (sworn states)

EXAMINATION BY MR JOUBERT: Thank you Honourable Chairperson.

Mr Mashoala, you have applied for amnesty and your application is contained on pages 1 to 7 of the bundle of documents presently before the Committee, is that correct?

MR MASHOALA: That is correct.

MR JOUBERT: Now if we turn to page 1 of the application, you will note at the top of the page there is an inscription there that says "Note - this is not the original amnesty application form" there's a little cross or star, "1-19 additions made to application, April 2000 after the date of commission of the application." Were certain further additions made to the initial application by yourself?

MR MASHOALA: Yes.

MR JOUBERT: And those are those additions which are marked in this application everytime with a little star and a number next to them, is that correct?

MR MASHOALA: That is correct.

MR JOUBERT: Now on page 1, the only issue that has changed there is your address as such, the rest of the page you confirm as correct?

MR MASHOALA: Yes, it's only the address that has changed.

MR JOUBERT: You are presently in the employ of the South African Defence Force, is that correct?

MR MASHOALA: That is correct, I am a member of the South African National Defence Force.

MR JOUBERT: Thank you. Now if we turn to page 2 where you refer - that will be paragraph a(i) where you refer to the acts, the omissions and the offences. In your initial application were you assisted at all by a legal representative or did you complete it on your own?

MR MASHOALA: Not at all, on my own.

MR JOUBERT: And these additions that you made to the application were they made at the request of the Truth and Reconciliation Commission?

MR MASHOALA: That is correct.

MR JOUBERT: Did you have any assistance when you made them? Legal assistance?

MR MASHOALA: There was no assistance, I did it on my own.

MR JOUBERT: Now you are aware that there have been amnesty applications prior to this by inter alia Mr Thoka Pitsi Maleka and those are the applications referred to from page 45 onwards in the bundle of documents?

MR MASHOALA: Yes I am aware.

MR JOUBERT: These applicants here, were they members of a unit that served under your command?

MR MASHOALA: These members, Thoka who had direct contact with him and then the rest of the other members, they were under Thoka. So it was none of our business as to whether they are having those members under them or not except that we only termed those units under certain names.

MR JOUBERT: You did not attend the hearing of their applications?

MR MASHOALA: Not at all, I was not present.

MR JOUBERT: You were not present, you were not advised?

MR MASHOALA: I was not advised also, also not informed.

MR JOUBERT: And up to today you still have not had any sight of the proceedings there, you do not know what was specifically testified, is that correct?

MR MASHOALA: Definitely.

MR JOUBERT: Now, on page 2 where we refer to the acts and omissions, you say that

and you give dates '87 and '88. Are you hundred percent sure of those specific dates?

MR MASHOALA: I'm not hundred percent sure on that. For an example later on after I've contacted Thoka I learnt that in fact that operation which was carried out around Pretoria area it was in fact in Atteridgeville not in Mamelodi.

MR JOUBERT: So this, where you refer to Mamelodi is a mistake on your part?

MR MASHOALA: It is a mistake on my part because there are a lot of operations which were carried out by the very same units also in Mamelodi.

MR JOUBERT: Now your duty as chief of staff, stationed in Botswana, what did that entail, your duties?

MR MASHOALA: My duties? It entailed facilitating movement of trained personnel, that is inside the country, the reconnaissance of borders, the establishment of contacts around the border areas, to facilitate that movement as well as the supply of members with both the material in a form of a sketch or actually giving them the hard material as well as taking care of the transport which we were utilising in Botswana.

MR JOUBERT: Now if you refer now to the people that you were assisting, are those MK soldiers and cadres that were infiltrated into the Republic of South Africa?

MR MASHOALA: Come again?

MR JOUBERT: The people that you refer to, are those the MK cadres that were infiltrated into South Africa?

MR MASHOALA: That is correct, mainly MK cadres and nobody else.

MR JOUBERT: And you were a member of MK yourself?

MR MASHOALA: I was a member of MK and I was a member of the Botswana Regional Command in terms of military operations.

MR JOUBERT: And is it correct that you served - who was your superior officer?

MR MASHOALA: My superior officer, it was Naledi that is Patrick Mvundla who was attacked in one of my houses in 1988 together with the three Botswana Naledis and they died.

MR JOUBERT: Would that be Naledi Molefe to whom is referred ...(intervention)

MR MASHOALA: This was his combat name but his real name, it was Patrick Mvundla.

MR JOUBERT: And that is the person referred to on page 48 of the bundle of documents?

MR MASHOALA: That is correct.

MR JOUBERT: In paragraph 2, Honourable Chairperson.

Now you carry on to say on page 2 of your application that - or let me first put this to you, the unit in Tembisa that you referred to, was that a different unit from the one of which Thoka was a commander?

MR MASHOALA: It was a different unit from the one of Des Mabida's structure.

MR JOUBERT: And do you know if any of the members of that unit had applied for amnesty at any stage?

MR MASHOALA: They have applied for amnesty.

MR JOUBERT: Were you present at those proceedings?

MR MASHOALA: I was not present at those proceedings.

MR JOUBERT: So you don't know whether there was any reference to you at all?

MR MASHOALA: I'm not very sure whether there was any reference.

MR JOUBERT: Now your duties entailed, as you indicated, would you also convey or would you receive instructions from superior officers and convey this to your insubordinates?

MR MASHOALA: That is correct, most of the cases it's either a member of the leadership would arrive in Botswana, let's say for an example the retired Lt. Gen. Maloi or the late Chris Hani whereby I would actually sit down and discuss in terms of what is it that is supposed to happen with regards to the intensification of the armed struggle. Or in some cases when we have been arrested by the Botswana Police, would actually be deported back to Lusaka and that will afford us an opportunity to once more consult with the military HQ in terms of the main direction in terms of escalating the armed struggle.

MR JOUBERT: The armed struggle. Now this would be conveyed to your insubordinates and the operatives on the ground. Would they be given a discretion at all in the way in which to operate?

MR MASHOALA: Definitely. The type of a training we're first giving to former members of uMkhonto weSizwe, it was such that if a member has been sent inside a country, he should be in a position to act independently and use his own discretion because in terms of the security situation it was not allowing them to some sort of contact us or consult for their approval because moving up and down, operating illegally, it will compromise them. So the type of a training is such that us from Botswana would actually give him instructions in a order perspective, that for an example you've got to identify targets like policemen, SADF members, those individuals perceived to be collaborating, colluding with the apartheid system. The councillors, we then regarded them as legitimate targets. So it's upon individuals, when inside the country, that they can identify those targets, reconnoitre those targets and when they are satisfied, they attack them at will. The only thing they will do is to report back to us that such and such a target has been attacked.

MR JOUBERT: And you were at no stage personally, physically involved in the carrying out of any operations, is that correct?

MR MASHOALA: Definitely I was not involved.

MR JOUBERT: You indicate on page 2 that your only physical involvement was pertaining to the reconnaissance of the border in the Garapeng, is that correct?

MR MASHOALA: I said that but you see in fact all what I was trying to say here is, as the chief of staff and the person responsible for the routes of infiltration and exfiltration, before we can actually utilise any crossing point, it was my duty to actually go to the border area, check that border physically, establish like we managed to establish contact with Mr Dawana Moelema in Garapeng, would then assist us with certain people from inside the country with whom we can actually utilise this, for them to ferry people inland. So the physical aspect part of it I'm referring to is in that fashion. Not necessarily meaning that at all times I will be involved because under my command I had also people who were responsible for the border reconnaissance. So for the initial, I would actually go there an then when the bases have been laid, I would actually introduce like for an example Noga, who would at times if I don't go to the borders, he'll go there in terms of infiltrating members.

MR JOUBERT: Now you said that the different units and people had a measure of discretion to identify targets. There was a broad indication, was that given to them to what would be a legitimate target?

MR MASHOALA: That is correct. Like I have indicated earlier on, policemen, the army, councillors, those people who tend to be askaris. They were legitimate targets and those individuals who were perceived to be aiding the apartheid system in one or the other, we regarded them as legitimate targets. They would also be eliminated.

MR JOUBERT: Now if an operative were to identify a target and then act against this target, this operative or this unit would then report back to command in Botswana where you were stationed, is that correct?

MR MASHOALA: They reported back not physically most of the time. You see like for an example specifically with this unit of Mabida unit, we had a box number in Moegoditsane which was manned by the girlfriend to Thoka. Then whenever there's an operation which has been carried out they will communicate with that lady, Sidi. Sidi then in turn she will give us the message. Then at my place I had a preplanned communication which then I'd take that message and decipher in terms of what does it mean. For an example it would indicate that there's an operation, maybe four ladies then it would mean maybe four policemen.

MR JOUBERT: Yes.

MR MASHOALA: And then maybe attacked.

MR JOUBERT: Yes but the essence the result of any attack would be conveyed back to command centre?

MR MASHOALA: That is correct. That was also another way of actually monitoring because if units are inside the country they were given also monies. Now they had to account in terms of what happened to the monies.

MR JOUBERT: Okay. Would each and every attack that happened, would that have been reported to you personally or would you have only got to know of certain of the attacks or certain of the issues and would others have gone to other superior people?

MR MASHOALA: That was reported directly to us but like for an example not in all cases one will be in Botswana. There are situations whereby you are being arrested and deported. Like for an example in the case after the attack of the four policemen, when my house in Botswana was attacked I was not in Botswana, in that I left with one of the members who was injured to take him across to Zimbabwe for him to be addressed.

MR JOUBERT: Yes.

MR MASHOALA: So that situation it was a ...(indistinct) situation. You find that in the meantime certain units inside the country they are carrying out operations then they'll report to other members like Naledi.

MR JOUBERT: Yes so you would not necessarily know of each and every operation?

MR MASHOALA: No, we didn't know of each and everything.

MR JOUBERT: When you refer to the attack on the policemen and the person who was injured, was that Pitsi?

MR MASHOALA: That is Pitsi.

MR JOUBERT: To whom reference is made in the decision from page 45 onwards?

MR MASHOALA: That is correct, when they were attacking the policemen specifically.

MR JOUBERT: Specifically?

MR MASHOALA: Yes.

MR JOUBERT: Now can you recall each and every operation, names, places that had been attacked or had happened?

MR MASHOALA: I would be lying, I cannot. To the best of my ability like I'm saying some of the other operations you will know, some you'll not know. It will also depend whether you are available or you are not available.

MR JOUBERT: And insofar these units had acted under your command or had received any command from you personally, do you accept responsibility?

MR MASHOALA: Definitely I do.

MR JOUBERT: Now you've had the opportunity to peruse the documentation made available to us including this decision enclosed from page 45 onwards where reference is made to inter alia a Juicy Lucy bomb blast, the attack on the policemen, various incidences that happened, for example a handgrenade attack during which a small child, baby of 14 months had been killed and more specifically, let's say also the attack at Juicy Lucy which was on the pavement. Would that have been in accordance with your instructions?

MR MASHOALA: No, definitely that wouldn't be in accordance in terms of the police of the ANC like I've earlier on, you know, elaborated. As to what could have happened I don't know. I regret the fact that they had to attack a target whereby a baby was killed as well as just putting a limpet mine in a busy street in Pretoria without necessarily directing it to policemen or the members of the former SADF.

MR JOUBERT: Yes, so an operative on the ground would have a bit of discretion and if they had acted outside your orders you would have had no control over that prior to the action, is that correct?

MR MASHOALA: Prior to the action we wouldn't have any control over that.

MR JOUBERT: Where operatives had acted and gone beyond their instructions, was there any disciplinary action taken?

MR MASHOALA: Definitely, we'll actually call the members of the unit in Botswana and actually explain to them that that is not the policy principles of the African National Congress in terms of actually attacking innocent civilians or people who have got nothing to do in terms of, you know, the apartheid system because the apartheid system, we never regarded it as every White South Africa. It's for that reason specifically we gave them instructions that all those who were aiding the apartheid system they must be targeted.

MR JOUBERT: Yes.

MR MASHOALA: Like for an example we wouldn't agree in terms of an attack in Wimpy unless if an explanation would be given as to why that particular target had to be attacked.

MR JOUBERT: For example it was frequented by Defence Force members.

MR MASHOALA: If it was frequented definitely by high-ranking Defence Force members, definitely it was a legitimate target even though there may be certain individuals who would - innocent individuals would get hurt. It's unfortunate, we regret but it would be legitimate.

MR JOUBERT: Yes, you were aware that innocent civilians may be injured during certain actions but the instruction was that they had to prevent this as far as possible?

MR MASHOALA: As far as possible and why it is not possible, we regret that such things had to happen.

MR JOUBERT: Then on page 3 of your application and in paragraph 3(iii) under the names and addresses of victims there's written:

Do you state this as a fact or is this something that you got to know of or is it just hearsay?

MR MASHOALA: I was not physically there and I must submit that that is hearsay. What has actually happened, maybe to elaborate on that, is that Stoffel and Tabando actually sent inside the country. The main object of them going inside the country was to go and reconnoitre a military base for former Bophuthatswana which was then, according to our plans, the intention was to attack it with explosives. So the first day the two members actually went there, then I was made to understand that the second day they couldn't because there were roadblocks in Mafikeng. So the person who was assisting them, or who harboured them, indicated to them that it won't be advisable for them to be moving around, they should stay put.

MR JOUBERT: Yes, if I could stop you there? This is all information that you received, this isn't a fact that you know first hand?

MR MASHOALA: No, not first hand. As I'm saying it's just hearsay.

MR JOUBERT: Just hearsay?

MR MASHOALA: Yes.

MR JOUBERT: Okay. On the same page, on the bottom of the page where you state your political objective sought to be achieved in any actions that you may have taken, you say there:

MR MASHOALA: So that each and every, you know, citizen, irrespective of their race, religion, gender and colour, could have an opportunity to participate as equals in the administration of our country and eradication of apartheid system. That was our main objective.

MR JOUBERT: And this is in accordance with the main objective of the African National Congress, is that correct?

MR MASHOALA: That is correct.

MR JOUBERT: Now insofar as you haven't elaborated in detail regarding political objectives etc, pertaining to the ANC, you are aware that there were detailed submissions made to the Commission on various occasions and do you wish that to be incorporated as part of your application?

MR MASHOALA: That is correct.

MR JOUBERT: On page 4, more or less the middle of the page is your reference to Mamelodi and 1987 to which you earlier testified, it should actually read Atteridgeville?

MR MASHOALA: That is correct.

MR JOUBERT: And you would request that that amendment be made so it reads Atteridgeville?

MR MASHOALA: That is correct.

MR JOUBERT: Am I correct in stating that any order that you gave out to your insubordinates were orders that you obtained again from your superior officers?

MR MASHOALA: That is correct. From Lusaka.

MR JOUBERT: From Lusaka?

MR MASHOALA: Lusaka also it was the same, they wouldn't be telling us that we've got to attack this or that or that other target except in the case of special operations, were also being given that latitude to exercise our mind in terms of advising, that is in terms of the instructions. From there they will then be interpreted and then be given also to soldiers who would be given a latitude to exercise their minds.

MR JOUBERT: Yes, were any of the actions that you partook in in giving these instructions did you receive any personal gain or financial benefit for that?

MR MASHOALA: We were volunteers, we were not being paid. We only received stipend amounting to R200 for basically buying food which was also insufficient but we understood because we were in the struggle.

MR JOUBERT: Yes but all your actions were taken in promotion of the armed struggle?

MR MASHOALA: That is correct.

MR JOUBERT: Do you otherwise confirm the content of your application as contained with the amendments as true and correct?

MR MASHOALA: I confirm.

MR JOUBERT: Then with reference to the decision contained from page 45 onwards. We have noted that it is alleged that the members would or the cadres would report to Botswana each and every time prior to acting against a target. Would that be completely correct?

MR MASHOALA: I think that is incorrect. Like I have earlier indicated that would actually jeopardise the members' security. We'd rather prefer if members are inside the country, that they can have maybe couriers to contact us. So a situation whereby a member has got for each and every operation prior to the execution to actually inform us to get an approval, that was not our modus operandi purely for security reasons because the other thing is, it wouldn't be safe for those members, as well as for us. Say for an example if I can be kidnapped because the South African Police Services as well as the Special Forces as well as SADF, they did conduct cross-border operations, meaning that if I know that a certain target is going to be attacked from the security point of view by method that I know, that I would actually jeopardise the operation. So it wouldn't, from the security point of view, be advisable that prior to them executing an operation they come and tell us. It's none of our business, it was their own business.

MR JOUBERT: Thank you. Now the incidences referred to in that decision, can you recall whether any of those were ever directly reported to you or can you not specifically recall?

MR MASHOALA: They were reported after, after I mean the operations were carried out. All what we did, we gave them like I earlier on indicated a broad overview of the situation in terms of which targets specifically must be attacked and then we supply them with a sketch. How they distribute that material amongst other sub-units, it was their own business. All what we wanted to see is the utilisation of that material of which they did then in the first sketch.

MR JOUBERT: And then just to return to a certain issue on page 53 of the decision - page 9 of the decision, it's page 53 of the paginated papers near the end of the second paragraph, it's indicated that:

MR MASHOALA: That is correct.

MR JOUBERT: Would that have been the gist of all your orders given to your insubordinates?

MR MASHOALA: That is correct. And that the other thing which I must also stress is these orders would be given to Thoka and Mensti whilst Mensti was still living. How they disseminate that information amongst the members of the unit, that was their own business. All what we knew is that there is Mtetindaba, Kwelekwele, Dabulamansi. As to the names and the proper names of those names we never knew. ...(indistinct Mamelodi, it was none of our business.

ADV SANDI: Sorry, just for clarity on their names. Mainstay, would that be?

MR MASHOALA: Ugeli Mapoenya.

MR JOUBERT: Is there anything else that you would like to add, that you would like to say to any victims, although there are no victims present today? Any statement you would like to make in this regard?

MR MASHOALA: The only thing I would like to say is that I regret that during the process of executing our revolutionary duty that we had, some innocent civilians caught in the crossfire. Unfortunately, in any war situation, is does happen. But I must say to the families of the - the bereaved families, that we feel saddened that such an unfortunate situation happened and we don't wish that such a situation should repeat itself in our country.

MR JOUBERT: Thank you Honourable Chairperson. At that stage I have no further questions.

CHAIRPERSON: Thank you Mr Joubert. Mr Mapoma, any questions?

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

Mr Mashoala, you are saying this unit would report to "us", that's how you put it. Whom do you refer to when you say you?

MR MASHOALA: To us I mean myself, the late Naledi ...(indistinct), that is Patrick Mavundla. There was Petwala and there was also Cheogara.

MR MAPOMA: So am I correct when I'm saying that you were a command structure of MK?

MR MASHOALA: We were a command structure and then a command structure was not consisting only of two people. It was myself - it was Naledi, it was myself, it was Petwala and then it was Cheogara at a later stage. But you see the way we were operating, not each and everybody will be handling units expect in a situation whereby another member is late or is not in the region. So if you are handling the units like Mabida Unit you will specifically be handling those units. Not any other members of the structure. The other members of the structure they had contacts or people with whom they were having dealings with.

MR MAPOMA: Now the Mabida unit, is it the one which was led by Thoka?

MR MASHOALA: Firstly it was led by Udilila Maponya and after the incident of Sterland we then appointed Thoka as the commander and then we reinforced him with Liverpool as the second in command and then with Webster as the person responsible for security after having realised that they were multiplying themselves.

MR MAPOMA: Then the Tembisa unit, do you know of any names of the operatives in the Tembisa unit?

MR MASHOALA: The Tembisa unit, the commander it was Mangnani, I've forgotten his surname and then the second in command it was Lawrence Mahlangu and then there was also Thabiso Gadebe.

MR MAPOMA: Then to your knowledge, what acts are they that they applied for amnesty for?

MR MASHOALA: They applied for amnesty for having planted a mine at the municipal offices as well as possession of illegal firearms and then as well as the ambush which was laid for Municipal Police.

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

CHAIRPERSON: Thank you. Panel?

ADV BOSMAN: Thank you Chairperson. Mr Mashoala, I'm afraid I am rather confused in regard to the application form. If you can just assist us there? It seems to have been filled out by two different people. Did you fill in the original form? If you look at the handwriting in paragraphs 1, 2, 3 and 4, it seems to differ from the rest, from 5 onwards. Did you fill out where your name appears and the address?

MR MASHOALA: Definitely I did.

ADV BOSMAN: And the rest also? Is it just that your handwriting changed? I don't understand.

MR MASHOALA: Which rested - all depends, you know, whether I was comfortable but this is my handwriting.

ADV BOSMAN: Everything in the form is written by you?

MR MASHOALA: Everything is written by me.

ADV BOSMAN: Okay and then how did it come about that you make these additions? Exactly when did you make them? Were you asked for further particulars?

MR MASHOALA: Definitely. I was contacted. You see firstly, we applied for amnesty, that is the blanket amnesty.

ADV BOSMAN: General blanket, yes.

MR MASHOALA: Then later on it was said that no, we've got to apply as individuals. That's when I was contacted by the TRC.

ADV BOSMAN: To give further particulars?

MR MASHOALA: To give further particulars and ...(intervention)

ADV BOSMAN: So all this information marked with an asterisk you regard as further particulars?

MR MASHOALA: That is correct.

ADV BOSMAN: Okay and let me just see if there's anything else? And was that done during the course of this year?

MR MASHOALA: I should think last year.

ADV BOSMAN: Last year?

MR MASHOALA: I should think last year, not during the course of this year.

ADV BOSMAN: And you don't know what happened to your original application?

MR MASHOALA: No I don't know.

ADV BOSMAN: Okay.

MR MASHOALA: But I'm saying the original application, it went to Pretoria but then I later on received a letter to the effect that that is insufficient and I must also indicate, as an individual, exactly what am I applying for.

ADV BOSMAN: Alright and do I understand it correctly now that insofar as all these incidents are concerned, you learnt of it happening in each instance only afterwards?

MR MASHOALA: Only afterwards.

ADV BOSMAN: Okay, so you were in - well, it's perhaps for your lawyer to argue, but you were an accessory after the fact, you never participated prior to any of these incidents?

Except for general commands ...(intervention)

MR MASHOALA: For general orders but I never participated physically except for them to inform us such and such an operation has been carried out. Like I'm saying we'd have a communication that is prepared for them to indicate. If it's for policemen it would be indicated but the message they are going to send to that post box, it would be reading something but then it's for us to decipher that message.

ADV BOSMAN: Yes.

MR MASHOALA: So whether they have thrown a handgrenade somewhere else we'll learn thereafter that a handgrenade has been thrown.

ADV BOSMAN: Alright. Now I understand, thank you.

ADV SANDI: Just one question from me. Did it ever happen that anyone of the group of Thoka and company got recalled for committing an irregularity?

MR MASHOALA: No, the only time they came back to Botswana is not because they committed any irregularities. They only came after the incident of Sterland where the commander was killed. Now we wanted to get an explanation from Thoka as to what transpired, what happened and then two, we actually proposed to Thoka that it will be advising for all the units under Mabida to withdraw to Botswana so that we can observe the situation being at a ...(indistinct) but they hold us out and insisted that the situation is still okay, they can actually go back. Then it's for that reason then we called in Liverpool and Webster to reinforce then send them inside the country only to find that before they can exhaust the second sketch, they were then arrested. So our suspicions were confirmed when the whole structure got rounded up.

ADV SANDI: Just one last question. In that group of Thoka, Thoka was the only person you were in contact with?

MR MASHOALA: Initially we were in contact with Thoka and Udilila Maponya. Then when Maponya passed away externally trained members were Liverpool as well as Webster whom then were requested from Lusaka and then we bought Thoka also together to be acquainted with these other new members and then we brief them together as they were going to work together then we infiltrated again inside the country.

ADV SANDI: Thank you. Thank you Chairperson.

CHAIRPERSON: Thank you. Any re-examination Mr Joubert?

MR JOUBERT: It's hard to single aspects so ...(intervention)

MR MAPOMA: Excuse me Chairperson?

CHAIRPERSON: Yes?

MR MAPOMA: Before re-examination? I'm sorry I didn't raise this before with the Committee, I have got this gentleman here, he says that his combat name was Stoffel and he's and implicated person so to speak now and he wants me to put it to the applicant - in fact in page 3 of this bundle, Chairperson, the Mafikeng incident where police were killed, the applicant says that Stoffel, that is himself, was involved in this operation. Now his name is Mr Edward Magisi Sesane.

CHAIRPERSON: Is he indeed - is he the one that's referred to here or do we have to ascertain that first from the applicant?

MR MAPOMA: Perhaps Chairperson.

MR JOUBERT: Honourable Chairperson yes, no it's exactly the same person there's no ...(indistinct)

MR MAPOMA: Now he asks my assistance to clarify this with the applicant.

CHAIRPERSON: Yes, do you want go ahead?

CROSS-EXAMINATION BY MR MAPOMA: Yes Chairperson.

Mr Mashoala, Stoffel is here. He says he was not involved in that operation where police were killed. Do you know that he was involved at all?

MR MASHOALA: Like I've indicated there, Mr Mapoma, that this was hearsay. What has happened is, Stoffel was sent together with Thabang in Mafikeng, specifically to go and reconnoitre military base of the former Bop. The report we received from Thabang, who was the commander, because Stoffel was assisting him in terms of his knowledge of the area, that is Mafikeng and of those areas. For that reason he said he should accompany him. We had a sister who was assisting us based in Mafikeng as well as Botswana. The reconnaissance had to be cancelled after the incident. Now we wanted to know as to what happened. They then said the second day when they were supposed to go for a reconnaissance, roadblocks were manned and that Thabang and Stoffel were advised not to move around but from Thabang he then alleged that whilst they were still sitting, Stoffel then took his AK-47 and said "I'm not going to sell you out" ...(intervention)

MR MAPOMA: No, sorry, before - I just want to interrupt, I'm sorry for that. You see, what he says and despite your narration, what he says is that in fact he was not involved in this incident. Are you able, for you personally to say he was?

MR MASHOALA: No, I'm not able. What I'm saying what I got it was just a hearsay.

MR MAPOMA: Yes.

MR MASHOALA: So if he's saying he was not involved then I accept that.

ADV SANDI: Sorry, just one bit of detail here? I seem to recall a matter where applicants applied for amnesty for an incident in the nature of the description you have given. Is that the incident where they robbed a vehicle before carrying out this attack on the Police?

MR MASHOALA: Not at all, not at all. This was a separate incident. What was alleged was that one of my members, for them to have come back to Botswana and then cancelling, that mission of reconnoitring that specific military base, it was because of this incident because now they had to be taken out of the country to Botswana in a hurry.

ADV SANDI: But you know you say you're talking hearsay, you don't have personal knowledge of all this, this is what you are told?

MR MASHOALA: This is what I was told definitely I agree.

MR MAPOMA: Chairperson, that is all relating to the actual implication.

CHAIRPERSON: Just this one allegation in the application?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: That was of concern to the gentleman?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: Alright, good. Re-examination Mr Joubert?

RE-EXAMINATION BY MR JOUBERT: Thank you Honourable Chairperson.

Mr Mashoala, I just want to confirm one thing. The detail contained in the charge sheet and the decision enclosed in this documentation. This detail, when did this only come to your attention?

MR MASHOALA: I believe only yesterday.

MR JOUBERT: When the documents were made available to you, is that correct?

MR MASHOALA: Yes.

MR JOUBERT: You now apply for amnesty for conspiracy to murder, conspiracy to commit murder, any malicious damage to property, all contraventions under the Firearms and Ammunition Act and the Explosives Act, defeating the ends of justice insofar that no information was ever made available pertaining to crimes that may have been committed, any offence relating to the illegal crossing of the border of the R.S.A. and Botswana and then any other offence and or delict covered by the evidence and the facts that may support a confident verdict, is that correct?

MR MASHOALA: That is correct.

MR JOUBERT: I have no further questions, thank you Honourable Chairperson.

CHAIRPERSON: Thank you. Mr Mashoala, thank you, you're excused.

CHAIRPERSON: Is there any other evidence?

MR JOUBERT: No, no other evidence.

CHAIRPERSON: Is that the case for the applicant?

MR JOUBERT: That's the case for the applicant, thank you.

CHAIRPERSON: Mr Mapoma is there any other evidence?

MR MAPOMA: There's no other evidence Chairperson.

CHAIRPERSON: Thank you. Mr Joubert, have you got any submissions on the merits of this application?

MR JOUBERT IN ARGUMENT: May it please you Honourable Chairperson and Members of the Committee.

I would submit that the applicant has complied with the requirements of the Act and that pertaining to a political objective as such it is my respectful submission that it is clear from the manner in which he acted, the post which he occupied and being a member of MK that the political objective issue has been addressed sufficiently. I will not labour the record any further with that specific issue.

As pertaining to full disclosure, I would submit, with respect, that the applicant has made a full disclosure within his - or as far as he is capable, he is not capable of giving specific detail pertaining to incidents that occurred as he had not been involved in them personally but he has made a full disclosure as to his own involvement or insofar as he may have had any involvement in giving any orders to any actions that were taken.

I would submit that the applicant has disclosed all the relevant facts at his disposal and that in this regard the Committee should find that he has made a full disclosure. It is furthermore my respectful submission that pertaining to proportionality etc, the orders given by the applicant in his post as chief of staff who were to attack legitimate targets, military installations, police stations, etc, and in this regard these orders would suffice for the proportionality test as to what transpired thereafter.

Everything taken into account and unless you want to hear me on a specific issue, I feel that, with the greatest respect, the applicant has come to the fore, he has given his full disclosure, he has given his full cooperation. Unfortunately for the applicant, he was not given the opportunity to be heard during the other applications and may have served to refreshen his memory in certain regards and would have been able to give more detail. But given the circumstances, I would submit that he has complied with all the requirements and that amnesty should be granted to him for the issues which I indicated during his evidence.

ADV SANDI: Thank you Mr Joubert. One of the offences in respect of which Thoka and company were granted amnesty is escape from lawful custody and if I recall the evidence was to the effect that they had been assisted by their commanders from outside the country. Maybe I should have put the question to the applicant. Was he in any way involved in facilitating that escape?

MR JOUBERT: No, as far as my instructions are, Adv Sandi, he was not involved in that, in the escape as such and the assistance there.

ADV SANDI: Thank you.

CHAIRPERSON: Thank you. Mr Mapoma, any submissions?

MR MAPOMA: I've no submissions, Chairperson, thank you.

CHAIRPERSON: Thank you Mr Mapoma.

Yes, that concludes the formal proceedings in this matter. The panel will consider the application and will take time to formulate a decision which we will endeavour to do as soon as circumstances permit in which event we will then notify all of the parties with an interest in the matter once that decision is available. But for the moment the decision in the matter is reserved.

Mr Joubert, we thank you for your assistance in this matter and if you wish to be excused we will gladly do so.

MR JOUBERT: Thank you very much, Honourable Chairperson.

CHAIRPERSON: Mr Mapoma, shall we take the adjournment at this stage?

MR MAPOMA: Indeed Chairperson.

CHAIRPERSON: And then we've got the other matter ready for this afternoon?

MR MAPOMA: Yes Chairperson.

CHAIRPERSON: We'll adjourn and reconvene as soon after 2 o'clock as it's convenient.

CHAIRPERSON: ...(inaudible) AM 1146/96. It is a matter that was before us previously and it was postponed, couldn't be disposed of at that session and which we will now continue with and hopefully dispose of.

The appearances are still the same as before. Mr Makanjee is acting for the applicant and Ms Makhubele represents the interests of the victims and Mr Mapoma is the Leader of Evidence this time around.

Mr Makanjee, we have progressed to a point where we had listened to the testimony of the applicant. What is the further conduct of the proceedings?

MR MAKANJEE: At the time of the last hearing of this matter the matter was postponed for the investigators to attempt to locate people who had been implicated in this matter. I notice that there is a report that has been provided to myself by the offices of the TRC in connection with this.

The one difficulty I wish to just raise is whether the people who were located, whether it was the intention of the Committee to have them served with notices to appear at this meeting, Mr Chairperson.

CHAIRPERSON: I gather that they were located and they were notified. Well, those who could be located were notified and it's quite apparent that most of them are not interested in the proceedings. Some had denied any knowledge of the matters in contention and so on. So it was quite clear from the reports that the investigative unit had done what it could in terms of locating people, some had died apparently and some were located and it looked as if, as is apparent now as well, that those people are not interested in participating in the proceedings. So it looks as if we have done what we could in terms of locating and notifying people who could possibly have been implicated in the matter.

MR MAKANJEE: Thank you Mr Chairperson. Mr Chairperson, may I just confer with my client for a second?

CHAIRPERSON: Yes.

Mr Makanjee, I believe that your client's testimony is concluded, if I'm not mistaken?

MR MAKANJEE: That is correct, Mr Chairperson, I think it was only postponed for any possible further evidence that could assist.

CHAIRPERSON: Yes, well apart from what could have come up through the investigation, I don't think any of the other parties were going to present any evidence, is that not so Ms Makhubele?

MS MAKHUBELE: That is correct, Chairperson. What Mrs Daza wanted to say I believe is what was already put during cross-examination which is not in dispute so there's nothing further.

CHAIRPERSON: Very well. As I've already indicated there's none of the other people forthcoming so, you know, in the circumstances - and I'm not sure if you formally closed your client's case or not but I assume it was closed because there was nothing else that ...(intervention)

MR MAKANJEE: If you may permit me, Mr Chairperson, if I could place one more fact on record if it's possible. Just in connection with regard to the people who were implicated by my client, I have a fax from the offices of the Truth Commission which states that the person who was not found at his house, on the second visit the Investigation Unit found his wife. The Investigation Unit left contact numbers of the concerned investigator of the case. Up to date the person has not contacted the IU. I just wasn't certain whether the person implicated was meant to be served with a notice as opposed to just leaving the phone number of the investigator.

CHAIRPERSON: Of course it is always open to an implicated person to either participate in the proceedings or not. I was led to believe that the nature of the matter was fully explained on these occasions, so there's no uncertainty about the fact that these people are implicated by your client. This person obviously shows no interest because they had spoken to his wife, he shows no interest in the proceedings. Under those circumstances, you know, there's nothing practically that could be done further to the matter because I mean he has been informed through his wife about the proceedings, about what was the nature of the business that brought the investigator to him and he was invited to respond. He hasn't responded, so that is the end of the matter insofar as that is concerned. In any case, it's open to an implicated person to decide whether he wants to participate or not, there's no obligation at all.

MR MAKANJEE: Thank you Mr Chairperson, I just wanted to clarify that.

CHAIRPERSON: I assume that everybody's cases are closed then under those circumstances?

MS MAKHUBELE: That is correct.

CHAIRPERSON: Mr Makanjee, are you in a position to address us?

MR MAKANJEE IN ARGUMENT: Yes Mr Chairperson.

Mr Chairperson, this is an application for amnesty for two murders and an attempted murder. It has been our client's submission further that in response to requests for further particulars, he submitted further information which was incriminating upon himself. It is our submission that our client was attempting to make a full disclosure with regard to the facts and this could only be done in response to the request for further particulars.

Our client has testified that he was a member of the ANC. Unfortunately, given the error at the time, many card carrying members of the ANC never actually carried a card with them. Our client does not have confirmation from the ANC that he was a member but then so do many other applicants as well.

ADV BOSMAN: Mr Makanjee, your client stated in his application form that he was just a supporter?

MR MAKANJEE: I think at the last hearing of this matter the question was put to him as to whether he was a supporter or whether he had joined any particular branch and the evidence was that he had joined the Zonkisizwe branch of the ANC.

ADV BOSMAN: How do we reconcile that now? Was there any explanation offered for why he stated on the form that he was just a supporter? I cannot recall, can you?

MR MAKANJEE: The only explanation I can give is that my instructions are that this form was not filled in by my client.

Our client further was quite, with regard to the aspect of full disclosure - our client has been in prison for more than five years. He has stated in his evidence of chief the reasoning behind him not naming his accomplices at the time of his trial. The logic was that one doesn't implicate one's fellow comrades if one gets arrested by the Police.

Unfortunately, this is a case where the information available to all the parties concerned is not as vast as other amnesty applications have been. We are left with the word of the accused or the applicant against - there's no other concrete information that can contradict the applicant's version and it is our submission in light of the submissions made by the applicant, we believe that amnesty should be granted to him. Thank you Mr Chairperson.

CHAIRPERSON: Thank you Mr Makanjee. Ms Makhubele?

MS MAKHUBELE IN ARGUMENT: Thank you Chairperson.

In my address I can simply point out to the circumstances which at the end of the day would indicate that there was no political motive. First I would start with the 1992 incident where two people died and one was injured. Mr Joshua Misha Kokoa and Reginald Mopeng died and Mr Owen Dava Fodaza was injured.

The evidence, on his own evidence, he only confirmed that that was theirs. He only confirmed that that was theirs. Supposing the Springbok Security was helping the government when they attacked the car, he only confirmed that it belonged to Springbok Security after they found a bag which was marked Springbok. The car was not marked. The two security officers were not dressed in any uniform. This, although none of the persons in their gave evidence would indicate the circumstances that it was just a private vehicle hired by a company which, I'm sure the Committee can take judicial notice, that at the time in townships due to the unrest businesses were not safe, they were burned, delivery vehicles were prevented from entering townships and as a result some companies to protect their interests had to hire some private security companies.

Furthermore, after they took the applicant and his accomplice to the vehicle they kept it for themselves. When it comes to the other - if I may just address, although the decision has been taken as to whether he is applying for amnesty in respect of the TPA robbery, but then in that incident too, we have heard his evidence that after they robbed the R89 000, they shared - there was no decision as to how to share it, they were to keep it to buy firearms and at some stage the money, according to him, was given to some Street Committee members whose names I believe are amongst those that were investigated. But there's no clarity as to actually who the money was given to. Under the circumstances, my submission is that these incidents were just criminal activity, no political motive and amnesty should be refused.

Thank you.

CHAIRPERSON: Thank you Ms Makhubele. Mr Mapoma, have you got any submissions?

MR MAPOMA: Chairperson, I have no submission.

CHAIRPERSON: Mr Makanjee, is there any reply?

MR MAKANJEE IN REPLY: I'll be brief, Mr Chairperson.

As far as I understand it, it's not a requirement for the victim of the alleged political activity to be a confirmed member of any opposition party. It is based on the suspicion of the applicant or the impression that the applicant gets. Surely the victims of bomb blasts by members of the African National Congress, not all of them were IFP members or not all of them were South African Police. What I'm trying to say is I don't believe that the issue of amnesty should depend on whether the victims of the applicant were in reality card carrying members of any opposition political party or members of the State. I think the important thing is the impression that was created at the time of the incident was that members who were working for security companies were colluding with the State at that time. That's what I wish to say.

CHAIRPERSON: Thank you Mr Makanjee. Yes, thank you. That concludes the outstanding aspect of the hearing of this application. The panel will consider the application and will take some time to prepare a decision in the matter. We will endeavour to do that as soon as the circumstances permit us and once the decision is available we will then notify all of the parties with an interest in the matter. So under those circumstances the decision be reserved. We once again thank you, Mr Makanjee, for your assistance and Ms Makhubele for your assistance as well, Mr Mapoma and we will gladly excuse you if you so wish.

Mr Mapoma, is there anything else on the roll for this afternoon?

MR MAPOMA: No Chairperson, that is all for today. We are left with one matter now for tomorrow - Shabalala.

CHAIRPERSON: Yes, we will then adjourn the proceedings and we will reconvene here tomorrow morning at 9.30. We're adjourned.