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DATE:&#9;16TH MAY 2000
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 DATE:&#9;&#9;&#9;16TH MAY 2000

NAME:&#9;&#9;&#9;TAMSANKA NORMAN TSHOKO

APPLICATION NO: &#9;AM6211/97

DAY :&#9;&#9;&#9;2

_____________________________________________________CHAIRPERSON: Good morning everybody. We have two matters left on the roll and this morning we'll be starting with the applications of Norman Tamsanka Tshoko and Nkululeko Freedom Sidiya. Let me briefly introduce the panel to you. On my right is Judge John Motata, he is from Johannesburg, he is a member of the Amnesty Committee as is Mr Jonas Sibanyoni, he's an attorney and he comes from Pretoria and I'm also a Judge and I come from Umtata in Transkei. 

&#9;I'd like the legal representatives to kindly place themselves on record?

MR MALOWA: I am Advocate Malowa from the Pretoria Bar, representing the applicants, Freedom Nkululeko Sidiya and Tamsanka Norman Tshoko.

CHAIRPERSON: Thank you Mr Malowa.

MS PATEL: Thank you Honourable Chairperson, Ramula Patel, Leader of Evidence.

CHAIRPERSON: Thank you Ms Patel. Before we start I'd just like to inform the people that these proceedings are simultaneously translated and if you wish to benefit from the translation you must be in possession of one of these devices, they are available from the sound technician. You just turn into the correct channel, channel two is English, channel three is Xhosa.

&#9;Mr Malowa, I take it your clients shall be giving evidence

MR MALOWA: That is correct.

CHAIRPERSON: Which applicant is going to testify first?

MR MALOWA: Tamsanka Norman Tshoko.

MR SIBANYONI: Which language would he testify in?

MR MALOWA: He will be using Xhosa.

TAMSANKA NORMAN TSHOKO: (sworn states)

CHAIRPERSON: Thank you. Mr Malowa?

EXAMINATION BY MR MALOWA: Thank you Chairperson.

&#9;Mr Tshoko, can you tell your permanent physical address?

MR TSHOKO: My residential address? I reside at Boipatong, Vanderbijlpark, 1901 Musimvubu Street.

MR MALOWA: How long have you been staying there?

MR TSHOKO: I was born there.

MR MALOWA: Presently where are you staying?

MR TSHOKO: I still stay there at Boipatong.

MR MALOWA: It appears that you are in prison, is it related or unrelated charges to this application?

MR TSHOKO: Yes, it is related.

MR MALOWA: What I mean is that you are in prison because of the crime you have committed upon which you brought this application or is it a different matter upon which you are in prison?

MR TSHOKO: It's about different matters.

MR MALOWA: Which political party did you belong or do you belong?

MR TSHOKO: ANC. I was an ANC supporter.

MR MALOWA: You're still an ANC supporter?

MR TSHOKO: Yes that is correct.

MR MALOWA: If you are a supporter, from when were you a supporter of African National Congress?

MR TSHOKO: From 1982 when I was still a scholar at Dr Nglapa School in Boipatong.

MR MALOWA: Can you tell the Committee which act or which crime did you commit upon which you are requesting Amnesty Committee to forgive you?

MR TSHOKO: I was at Serilla in 1993. We were patrolling there as the members of the community

CHAIRPERSON: Was that some sort of street committee?

MR TSHOKO: No, like ANC members after the Boipatong Massacre we were patrolling in the area in 1993 but I cannot remember the date.

CHAIRPERSON: And I think it's quite clear from the documents before us, Mr Tshoko, that the date was the 28th January 1993, would you agree with that?

MR TSHOKO: Yes, I cannot remember the date but I cannot dispute that.

CHAIRPERSON: I notice from your application form you say it was between May and June 1993 but it's clear from the records and the court record, that the trial that never went ahead, that it was in fact the 28th January 1993. You may proceed.

MR TSHOKO: That can be possible. On that particular day in 1993 as we were patrolling the area as ANC members we heard that there are people who were coming from Kwamadala Hostel who had come to our community. When we went there we found Mr Gazu in Mr Sotho's street, that is Majola Street, that is where Mr Gazu died.

CHAIRPERSON: Sorry, just for explanation. Who resided in Kwamadala, supporters of which group resided in Kwamadala Hostel?

MR TSHOKO: IFP members.

CHAIRPERSON: Yes, if you could then just proceed and give us more detail as to what resulted in Mr Gazu's death?

MR TSHOKO: As we were patrolling, when we got to Majola Street, as ANC members we looked for him and we wanted to ascertain that he was really a person from Kwamadala and after that we took action after confirming that and what we did that day it makes me hurt even today.

CHAIRPERSON: Sorry, how did you confirm that he was from Kwamadala?

MR TSHOKO: We found his membership card.

CHAIRPERSON: Was it on his person? Did he have it in his possession?

MR TSHOKO: It was just a piece of paper with his name Gazu and the address in Kwamadala. I cannot remember the other details because it took place some time ago.

CHAIRPERSON: And approximately, your group that was patrolling, how many people were you in your group?

MR TSHOKO: It was quite a large number of us.

CHAIRPERSON: Could you give an estimation? Was it five, ten, hundred, this? More or less, we don't need the exact figure.

MR TSHOKO: I cannot remember but it was quite a large number of members from the community.

CHAIRPERSON: And what time of the day was this, or night?

MR TSHOKO: I cannot remember the time but it was late in the evening. I cannot remember the time.

CHAIRPERSON: So then what happened with Mr Gazu when you established that he was from Kwamadala?

MR TSHOKO: We kicked him, we assaulted him. 

CHAIRPERSON: Please continue?

MR TSHOKO: We kicked him and we assaulted him as ANC members of Serilla. We assaulted him and the others came with paraffin and poured it over his body and we left for the other side of the area to continue patrolling.

CHAIRPERSON: Was the paraffin that was poured over him set alight at all?

MR TSHOKO: Yes, it was set alight.

CHAIRPERSON: And then as far as you know that resulted in Mr Gazu's death?

MR TSHOKO: Even the wounds that he sustained we were using so many objects, including dishes and I am sure that some of the objects that were used while assaulting him caused his death.

JUDGE MOTATA: Where did he die, did he die on the scene where you assaulted him and poured paraffin over him?

MR TSHOKO: I cannot say for sure because we left him there, lying there.

CHAIRPERSON: And this took place some months after the massacre that had taken place in Boipatong, is that correct?

MR TSHOKO: Yes that is correct.

CHAIRPERSON: Were tensions between supporters of the ANC and supporters of the IFP in that area still very high at that time?

MR TSHOKO: Yes, the two parties were in battle. We couldn't relax, we had to patrol day and night, we couldn't sleep at our homes, we couldn't even wash ourselves.

CHAIRPERSON: Mr Malowa?

MR MALOWA: Thank you very much Honourable Chair.

&#9;As you were assaulting the victim or the deceased, did you personally use some objects to injure or to kill the deceased, Mr Gazu?

MR TSHOKO: Yes. 

MR MALOWA: Can you say you know specifically the person who came with paraffin?

MR TSHOKO: Even my co-accused was also involved.

CHAIRPERSON: Your co-applicant?

JUDGE MOTATA: In the assault - if I may come in Mr Malowa? In the assault, what did you do?

MR TSHOKO: I kicked him, I even hit him with a brick. I did not have a panga with me at the time.

MR MALOWA: Where specifically on his body did you hit him with a brick?

MR TSHOKO: On his ribs.

MR MALOWA: Was it continuous on - you only hit him with a brick on the rib?

MR TSHOKO: I cannot say how many times but I hit him with a brick, but I cannot say how many times that I hit him.

MR MALOWA: And can you say how many times did you kick him?

MR TSHOKO: Many times. I cannot remember how many times because I wasn't counting. I was very hurt at what had happened and we couldn't' sleep because of those people from that area.

MR MALOWA: You say you cannot remember a specific person who did come with the paraffin?

MR TSHOKO: The person who came with paraffin, I cannot say I do not remember him. There were many of us there and there was a bit of confusion and we were busy attending to this person and people were saying pour paraffin over his body.

MR MALOWA: Well, even though you don't remember or you don't know the number of the people involved, will I be correct to say there were over a hundred?

MR TSHOKO: I cannot say there were more than a hundred because I did not get a chance to look at them but it was quite a large number of us, all the young men from Boipatong township.

MR MALOWA: Among those residents, were you able to see a person who produced a match or who had set alight Mr Gazu?

MR TSHOKO: No I did not see him. Each and every person was willing to set him alight, the others had lighters. I cannot remember because this incident took place some time ago, I cannot remember the people who wanted to set him alight.

MR MALOWA: Among those residents, were they members of different political groups or any political group?

MR TSHOKO: There were members and supporters, people who were patrolling in Serilla township. I cannot say which were the members and who were the supporters but it was a large community.

MR MALOWA: But are they members, were they visible, any residents to be from one political organisation or were they many political organisation members there who were identifiable or which you knew?

MR TSHOKO: It was a community thing, all of us, even if there were PAC and ANC members we were united. All of us, we ended up being ANC members because it was apparent that the ANC was soon to be a ruling party.

MR MALOWA: Were there colours of ANC or even other organisations like PAC?

MR TSHOKO: Most people were ANC members. 

MR MALOWA: And the colours of both organisations were visible amongst the residents, maybe through T-shirts or maybe through flags or whatever, being which may purport to align one person with a political organisation?

MR TSHOKO: I saw only ANC supporters.

MR MALOWA: Do you know that - was it how many days after the Boipatong massacre?

MR TSHOKO: No I cannot remember but it was a long time after the incident.

MR MALOWA: Could it be months or can it be weeks thereafter?

MR TSHOKO: I think it happened only a few months after the Boipatong massacre. We were patrolling the area all the time.

MR MALOWA: The patrol was facilitated by the fact that IFP members have attacked Boipatong residents, is that correct?

MR TSHOKO: Yes that is correct.

MR MALOWA: If it wasn't the attack by IFP members, can you say you would have participated or would there be ...(inaudible).

MR TSHOKO: No we couldn't have because even now we have made peace with the IFP people and I even ask for apology, forgiveness from Gazu family. We even go and shop in their business areas. They even come to our places. We have made peace with them.

MR MALOWA: After the attack by IFP members on Boipatong residents, was there a tension between ANC and IFP?

MR TSHOKO: Yes, we were worst enemies, we didn't even go to their area, we didn't even want to see them nearer because they had done something very, very bad.

CHAIRPERSON: I think, Mr Malowa, you can accept there was tension between the groups in that area at that time. I think it's just a matter of record as well.

MR MALOWA: As the Chair pleases.

&#9;Can you say was the ANC using the residents or telling the residents what to do about the attack or the consequences after the attack, that means after Boipatong massacre?

MR TSHOKO: Yes, they would tell us where to patrol, when and what was going to happen and they would even tell us about the meetings and they would tell us the meetings that we should attend and the meetings that we shouldn't.

MR MALOWA: What was the political objective you sought to achieve by such attack on Mr Gazu? What did you want to happen, what did you want to achieve?

MR TSHOKO: The death of Mr Gazu is all because of what they had done to us. We were hurting because of what they had done to us but it is ...(intervention)

INTERPRETER: I would like to ask the applicant to repeat the answer?

MR MALOWA: What I'm ...(intervention)

CHAIRPERSON: Mr Malowa, the translator has just requested that the applicant just repeat what he said now, the answer. If you can just say it again please?

MR TSHOKO: The political objective is we wanted to get the freedom that we are enjoying even today. We didn't want them to suppress us but they wanted to suppress us seemingly.

MR MALOWA: On the initial answer you mentioned that you have killed Mr Gazu because of what they have done to you. When you say what they have done to you, can you specify what do you mean?

MR TSHOKO: They killed children, babies, elderly people in the township and children are innocent.

MR MALOWA: I mean when you say "they", what do you mean? You mean who or which people?

MR TSHOKO: The IFP members who were residing at Kwamadala.

MR MALOWA: Can I assume that even when you say they were suppressing you, retarding the freedom which you are enjoying even now, you are also referring to members of Inkatha Freedom Party?

MR TSHOKO: Yes that is correct.

MR MALOWA: Was the act of killing Mr Gazu politically motivated?

CHAIRPERSON: I think he said that, Mr Malowa. He stated what his political objective was.

MR MALOWA: As the Chair pleases.

&#9;Can I assume that the other reason for you to saying so, that it was politically motivated, it was because they were attacked by IFP members on residents who are mostly supporters or members of ANC and more so because there it was after Boipatong massacre?

MR TSHOKO: Yes that is correct, the IFP members attacked the Boipatong. They were not selective, they were killing any person that they come across.

MR MALOWA: Did you benefit anything financially or otherwise by killing Mr Gazu?

MR TSHOKO: No we never benefit anything financially. No one had bought us to do that, we were just community members.

MR MALOWA: In other words here today you are applying for amnesty for killing by necklacing or burning Mr Shadrack Gazu whom you believe he was a member of IFP?

MR TSHOKO: Yes that is correct, I am asking for forgiveness from the IFP members and Mr Gazu's family should forgive me for what I did.

MR MALOWA: As the Chair pleases, I'm through with the first.

NO FURTHER QUESTIONS BY MR MALOWA

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

CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chair.

&#9;Just one or two for clarity or completeness, Mr Tshoko.

You said in your application to us that after the Boipatong massacre the community started loosing confidence in the police. Is that correct?

MR TSHOKO: Yes that is correct.

MS PATEL: Okay and that one of the reasons that Mr Gazu was also killed was that the group thought that he had come to spy on the residents so that they could launch another attack on you. Do you confirm that?

MR TSHOKO: Yes that is correct.

MS PATEL: Okay and then just one curious aspect. In your application to us you also mention that the South African Communist Party was responsible for defending the community. By that do you mean that the group that was involved in the murder of Mr Gazu comprised of members of the ANC, PAC, SACP?

MR TSHOKO: Yes that is correct.

MS PATEL: Alright. Thank you Honourable Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS PATEL

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

I shouldn't think so, I mean there was nothing against your client. Do you have any re-examination or not?

MR MALOWA: I just wanted to clarify on this point of SACP that would he admit that there is no clear demarcation between ANC and SACP.

CHAIRPERSON: Yes I think we can take - we know what the alliance was between the two parties. Judge Motata, do you have any questions?

JUDGE MOTATA: Just a small point, Chairperson.

&#9;When you say the community had lost confidence in the police, what were the police not doing?

MR TSHOKO: IFP was perpetrating but people were not arrested and we decided that we do not want them in our community and after each and every conflict or fight the police would assault us, they wouldn't do anything to the IFP members.

JUDGE MOTATA: Now lastly, this confirmation that he was a card carrying member of the IFP and ascertaining his residential address, were you one of the people or you heard from the group in which you were that he was an IFP member or did you see that personally that he was a card carrying member of IFP?

MR TSHOKO: I saw someone holding this card or piece of paper and he was reading out that IFP and Kwamadala and we confirmed that this is a person who was residing at Kwamadala Hostel and he was coming to spy in our community.

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

CHAIRPERSON: Mr Sibanyoni, any questions?

MR SIBANYONI: Just a few Mr Chairperson.

&#9;Mr Tshoko, some of the statements from the police talk about the deceased being stabbed. Did you notice any person stabbing the deceased with a knife?

MR TSHOKO: I cannot dispute that. Yes he was stabbed there but we were using many different objects. There were leads, there were knives, there were bricks, there were axes, there was everything. I cannot remember who specifically stabbed him.

MR SIBANYONI: Now you, the people who were patrolling, were you structured in a form of self defence units or it was just people who volunteered from the community to patrol?

MR TSHOKO: We were all members and we were all patrolling and there was no specific structure, all of us would form one group.

MR SIBANYONI: Would you say, when you are talking about Serilla, is that another name for Boipatong?

MR TSHOKO: Yes it is the name that is known, Serilla is also Boipatong. The two sections are called Serilla.

MR SIBANYONI: Would you say Boipatong was a no go area for residents of Kwamadala Hostel?

MR TSHOKO: Yes that is correct because of what they did, the gruesome acts that they did to our township because each time we would see them we would cry a lot.

MR SIBANYONI: What about the residents of Boipatong, would they easily go to Kwamadala Hostel?

MR TSHOKO: No, after the Boipatong massacre in 1993 they couldn't set their foot there and even in 1994 and 1995, they couldn't go there. It's only now that we do visit the area.

MR SIBANYONI: That's all, thank you Mr Chairperson.

CHAIRPERSON: Thank you. Just one question Mr Tshoko. Is it correct that after the event you, your co-applicant and various other people were arrested and actually charged in respect of the death of Mr Gazu but the trial never proceeded because of the lack of evidence in possession of the State?

MR TSHOKO: Yes that is correct.

CHAIRPERSON: Thank you. Thank you Mr Tshoko, that concludes your testimony.

WITNESS EXCUSED

NAME:&#9;&#9;&#9;NKULULEKO FREEDOM SIDIYA

APPLICATION NO: &#9;AM7850/97

_____________________________________________________CHAIRPERSON: Mr Malowa, are you going to be calling Mr Sidiya?

MR MALOWA: That is correct, Honourable Chairperson.

CHAIRPERSON: Thank you. Mr Sidiya, are you prepared to take the oath or would you prefer to make an affirmation?

NKULULEKO FREEDOM SIDIYA: (sworn states)

EXAMINATION BY MR MALOWA: Thank you Honourable Chairperson.

&#9;Mr Sidiya, can you tell this Committee your permanent physical address?

MR SIDIYA: 62 Bulokomo.

MR MALOWA: Where is this Bulokomo?

MR SIDIYA: In Sebokeng.

MR MALOWA: Which party did you or do you belong?

MR SIDIYA: The ANC.

MR MALOWA: From when?

MR SIDIYA: From 1992.

MR MALOWA: Are you still belonging to that party?

MR SIDIYA: Yes that is correct.

MR MALOWA: Are you a member or a supporter?

MR SIDIYA: I'm a supporter.

MR MALOWA: Specifically do you remember when in 1992 were you a member of ANC?

CHAIRPERSON: He didn't say he was a member, Mr Malowa, he said he was a supporter.

MR MALOWA: I beg indulgence from the Chair.

MR SIDIYA: I don't remember the month but I only remember that I started supporting the ANC in 1992 after people died.

MR MALOWA: Can you tell this Committee about your participation or the crime that you have committed upon which you are requesting amnesty?

MR SIDIYA: I'm here before the TRC, I made this application because I was involved on this particular day, that is why I made this application before the TRC. I'm here to tell about my actions that day.

CHAIRPERSON: Yes, just tell us what you did, Mr Sidiya?

MR SIDIYA: That day I was working in the shop but there were patrolling the streets those days and I would take part in those patrols and that day, Mr Gazu, these people apprehended him next to the place where I was working at the shop. So when these people caught him, one man by the name of Ronti came to me and he asked for paraffin. I asked him why he needed that paraffin, he said that I must not ask a lot of questions, I must just give him the paraffin. Indeed I did so as I was working at the shop. I gave him the paraffin and then I followed him.

&#9;When I arrived there, I realised that there is this person who was injured, he was caught by the community and he was kicked. I also threw stones, hit him with stones because I heard that he was a member of IFP. I did not know that but I heard that after I was arrested by the police that the person that we killed was from Kwamadala Hostel and the people that were there that day said that that person was from Kwamadala Hostel. I also participated in kicking him and then I gave him this paraffin. After kicking him I went back to the shop. That was my participation in Mr Gazu's incident. I then left the people that were patrolling, I went back to the shop. After a week I was then arrested. It was said I had taken part in burning a person in Kwamachala Street.

MR MALOWA: Did you usually patrol with the people, the residents, as they patrolled?

MR SIDIYA: Yes.

MR MALOWA: Was the participation in killing Mr Gazu politically motivated?

MR SIDIYA: Yes.

MR MALOWA: Can you tell this Committee why you are saying so?

MR SIDIYA: It is because the people that were involved in this incident were the supporters of the ANC and the person that we were injuring that day was a member of IFP. We were fighting with the IFP, that is why I'm saying it was politically motivated.

CHAIRPERSON: Mr Sidiya, you heard the evidence of Mr Tshoko relating to this situation that applied in that area at that time and the relationship between the ANC and the IFP, the tensions that existed between them. Do you confirm that evidence, do you agree with it?

MR SIDIYA: Yes I confirm that.

MR MALOWA: Mr Sidiya, did you benefit any way, anything financially or otherwise by killing Mr Gazu?

MR SIDIYA: No, I did not benefit anything, I was just arrested.

MR MALOWA: In other words, today you are asking this Honourable Amnesty Committee to pardon you for necklacing or participating in killing a Mr Gazu by burning and assaulting him because also you believed he was a member of IFP?

MR SIDIYA: Yes.

MR MALOWA: That is all.

NO FURTHER QUESTIONS BY MR MALOWA

CHAIRPERSON: Thank you Mr Malowa. Do you have any questions Ms Patel?

MS PATEL: No thank you, Honourable Chairperson.

CHAIRPERSON: Judge Motata?

JUDGE MOTATA: None Chairperson.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: I've got no questions, Mr Chairperson.

CHAIRPERSON: Mr Sidiya, thank you, that concludes your testimony.

WITNESS EXCUSED

CHAIRPERSON: Mr Malowa?

MR MALOWA: Thank you Chairperson.

CHAIRPERSON: There's no further evidence to be led, I take it? Is that correct? Ms Patel, no evidence?

MS PATEL: No evidence, thank you.

CHAIRPERSON: Yes, if you can just make submissions Mr Malowa?

MR MALOWA IN ARGUMENT: Thank you Honourable Chairperson.

&#9;I submit that the applicants made a full disclosure of commission of an act upon which they are requesting amnesty. They have clearly disclosed that indeed they have killed Mr Gazu by burning and assaulting him and they've been honest in all material respect and they do so unconditionally.

&#9;It was also clear that there was a political motive since there was a political tension and violence between members of IFP and residents of Boipatong who mostly were members and/or supporters of African National Congress. The Committee must take into account the Boipatong massacre after which the applicants committed this crime. There was also a circular distributed by Inkatha Freedom Party members as alleged which appear on page 173 of the amnesty application record upon which the members of IFP were indirectly confirming the linkage, the political linkage, between the crime committed by the applicants. The crime which they have done, had fuelled the political antagonism which were already on this spree. However, the applicants were doing so in view thinking that that will minimise the attack by Inkatha Freedom Party and they were doing so in the interests and furtherance of their political objectives of African National Congress.

&#9;The applicants are remorseful and they are hounded and haunted by guilty consciences of their crime against Mr Shadrack Gazu. Even though the charges were withdrawn against them still they've got a burden of shame about what they have done and they have benefitted nothing, instead they have lost by so doing. They have lost their credibility and other related issues pertaining to the crime they have committed.

&#9;If there is anything that they have benefitted or gained, it was just a temporary relief which they got by their acts upon that time. The applicants embrace the spirit of reconciliation, not only when it apply for the crime they have committed but also the crimes committed against them and their immediate families by other people. They submit that errare humanum est and forgiveness is love because he who is devoid the power to forgive is devoid of the power to love as Martin Luther King has once said. I therefore humbly ask that the applicants be granted amnesty in relation to the murder by burning and assaulting one Klekuza Shadrack Gazu on that day.

CHAIRPERSON: Thank you Mr Malowa. Do you have any submissions Ms Patel?

MS PATEL: No thank you, Honourable Chairperson, I will leave it in your hands.

CHAIRPERSON: Thank you very much. As is our policy we will hand down a written decision in this matter which we hope will be in the very near future. We accordingly reserve our decision. Mr Malowa, I would like to thank you for your assistance in this matter and the same to you, Ms Patel, thank you very much. We will now - that brings this hearing to a conclusion and we will now adjourn and reconvene to hear the next matter whenever that is ready to proceed. Thank you.

MR MALOWA: Thank you very much, Chairperson.

COMMITTEE ADJOURNS

NAME:&#9;&#9;&#9;SIPHIWE NYANDA

APPLICATION NO: &#9;AM6231/97

MATTER:&#9;&#9;&#9;VARIOUS OPERATIONS 

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ON RESUMPTION

CHAIRPERSON: Good morning everybody. Before we proceed I would just like to briefly introduce the Panel to you. On my right is Judge John Motata, a Member of the Amnesty Committee. He comes from Johannesburg. On my left is Mr Jonas Sibanyoni, also a Member of the Amnesty Committee, he is an attorney and he comes from Pretoria and I am Selwyn Miller, also a Judge and I come from Umtata. We'll now commence with the amnesty applications of Siphiwe Nyanda, Solly Zachariah Shoke, Malakole Johannes Rasegatla.

&#9;These proceedings will be simultaneously translated and if you wish to benefit from the translation you must be in possession of one of these devices. If you do not have one they Vare available from the sound technician. Channel one is Afrikaans, channel two is English, channel three is Zulu or any other language that is available. At this stage I would request the legal representatives to kindly place themselves on record?

MR BERGER: Thank you Chairperson, my name is Danny Berger, I'm appearing on behalf of General Nyanda, General Shoke and Mr Rasegatla. I'm instructed by the firm Nicols, Cambanis and Associates. My attorney is Ms Crystal Cambanis.

CHAIRPERSON: Thank you Mr Berger.

MR MOTLOUNG: Thank you Mr Chairperson. My name is Ike Motloung from the firm Motloung and Associates in Germiston. I'm appearing on behalf of some victims on instructions of the Legal Aid Board. Thank you.

CHAIRPERSON: Thank you very much.

MR WAGENER: Chairperson, good morning. I am Jan Wagener from Wagener, Muller, Pretoria. I represent one victim, Mr Dewald Jacobus Visagie. He is a victim in the incident. You will find it on page 16 of your bundle as item number 33, where General Nyanda refers to an attack at the Wonderboom Police Station in 1981. Thank you.

MS PATEL: Thank you Honourable Chairperson. Ramula Patel, Leader of Evidence.

CHAIRPERSON: Thank you Ms Patel. Mr Berger?

MR BERGER: Thank you Chairperson. Chairperson, this amnesty hearing concerns attacks which were carried out by the Transvaal Urban Machinery of Umkhonto weSizwe. The first applicant, General Nyanda, is presently the Chief of the South African National Defence Force. He will be giving evidence in relation to many of the attacks - well, in relation to the attacks that are set out in the bundle of documents at pages 14 to 16. I think before we say anything more about his evidence, perhaps General Nyanda should be - he's not going to be sworn in.

CHAIRPERSON: Well I'll ask him. Would you prefer to make an affirmation, General?

SIPHIWE NYANDA: (affirms)

EXAMINATION BY MR BERGER: Thank you Chairperson. Chairperson, you will see in the bundle that there is an amnesty application which starts at page 4, this is for General Nyanda, running through to page 10 and together with that there are further particulars which were submitted by General Nyanda. I have to go through the same exercise that I did in White River because the bundle is, as they say in Afrikaans, it's "'n bietjie deurmekaar". 

&#9;Chairperson, you'll see that the further particulars start at page 13, then the second page of the further particulars appears at page 18 and then 19 and then back to 14. Also Chairperson, you'll see that in the particulars there are certain annexures referred to. At page 13 there's annexure A that is being referred to and that is the amnesty application which I referred to earlier, running from page 4 to page 10. Then annexure B is the document that you will find in today's bundle at page 141. For some reason the annexures were divorced from the particulars. Annexure C is the document in today's bundle at page 143.&#9;D is at 142, E is at 144, F is at 145, G is at 146, H is at 137, I at 138, J at 139 and K at 140. Annexure L has been left out altogether. 

CHAIRPERSON: They seemed to have made it as difficult as possible for us but thank you Mr Berger.

MR BERGER: Thank you Chairperson. Annexure L, I can just tell you, is an extract from the argument in relation to the Johannesburg car bomb and there, all that is relevant, is that Mr Landman who was appearing on behalf of the applicants in that application said the following, he said:

&#9;"Mr Chairperson, you'll also recall that we placed on record that General Nyanda, the person who gave the orders, does not intend to contradict any of the evidence which was given and indeed I'm instructed to inform you that he confirms that that is indeed the correct position that the orders emanated from himself."

My attorney in fact has the record from that application and she is willing to hand it up to you.

CHAIRPERSON: Thank you. Do we have photocopying facilities here, Ms Patel?

MS PATEL: Apparently, the machine has conked in, Honourable Chairperson, so we don't.

CHAIRPERSON: Thank you, but as long as we know it's available. You've told us what it is and I'm sure we'll remember that.

MR BERGER: Thank you Chairperson.

&#9;General Nyanda, is it correct that you are presently the Chief of the South African National Defence Force?

GEN NYANDA: That is correct.

MR BERGER: You've made application for amnesty and your application runs in the bundle from pages 4 through to 10, is that correct?

GEN NYANDA: It is so, yes.

MR BERGER: You confirm that that is your application?

GEN NYANDA: It is, yes.

MR BERGER: You've already given evidence in relation to this application in relation to Operation Hlatshwayo which was the landmine operation. Do you confirm the evidence that you gave at the previous hearing?

GEN NYANDA: I do confirm, yes.

MR BERGER: Also at the previous hearing you were referred to your further particulars which start at page 13. You heard what I said about the order of documents and the annexures that ought to have been attached to your further particulars. Taking that into account, do you confirm that the particulars from pages 13 through to 20, together with the annexures that I refer to, are in fact the particulars supplied by you?

GEN NYANDA: They are, yes.

MR BERGER: Could you briefly - it's in your further particulars, but just for the purposes of the victims who are here today, could you briefly sketch your involvement in Umkhonto weSizwe from approximately 1977 onwards?

GEN NYANDA: Well, in 1977 the ANC command, operational command, formed the Transvaal Urban Machinery as well as other structures to prosecute military struggle in the Transvaal urban areas, Transvaal rural areas, Natal and so on.

MR BERGER: You'll just have to speak up?

GEN NYANDA: I was appointed Commissar which was then a Deputy Commander of the Transvaal Machinery, Transvaal Urban Machinery. In the event the Commander of the Transvaal Urban Machinery died in 1978, early '79 and I assumed command of the Transvaal Urban Machinery in 1979 through to about 1983 when again the structures of the command changed and I was appointed Chief of Staff of the Transvaal Machinery, the entire Transvaal Machinery, in 1983 through to about 1985 or so.

MR BERGER: Then during the period 1984 to 1985 you were part of the political military council?

GEN NYANDA: Yes I was.

MR BERGER: And after that period 1986 to 1988?

GEN NYANDA: Period '84 to '86/'87 I was - '85 to '86 I was made Commander of the special machinery called - operational machinery called Hlatshwayo which was responsible for the landmines which you referred to earlier. After 1986/1987 I was withdrawn and preparations were made for me to infiltrate into the country in another operation.

CHAIRPERSON: Sorry, during this period that you've been speaking about, General, where were you based, where did you operate from?

GEN NYANDA: I was based mainly in Swaziland and Mozambique in the late '70's, early '80's and in the late '80's I then infiltrated into the country.

CHAIRPERSON: Thank you.

MR BERGER: Now, in your amnesty application, particularly at page 5, paragraph 9(a)(i), you were asked to furnish sufficient particulars of the acts in respect of which you seek amnesty and you say under (i), you say:

&#9;"Acts unknown to me unless stated otherwise by individual amnesty applicants"

and then as far as the nature and particulars are concerned, (iv), - have I been off all this time?

GEN NYANDA: Yes.

MR BERGER: Sorry, I'll have to start again.

&#9;Page 5, paragraph 9(a)(i) under Acts and Omissions, you say:

&#9;"Acts unknown to me unless stated otherwise by individual amnesty applicants"

and then 9a(iv) under Nature and Particulars you say:

&#9;"As declared in the ANC Submissions 22 August 1996, Operational Documents, 12 May 1997, ANC - The Declaration attached hereto."

Can you confirm that the documents that you are referring to at page 5 of your amnesty application are these documents that I have with me, the first being the statement to the Truth and Reconciliation Commission dated August 1996 and the second being Further Submissions and Responses by the African National Congress to questions raised by the Commission for Truth and Reconciliation dated 12 May 1997?

GEN NYANDA: I confirm, Chairperson.

MR BERGER: Why is it that - and you say this again in your further particulars - why is it that you are not able to list each and every operation that was carried out under your command?

GEN NYANDA: Well, it's because the operatives who fell under my command received general guidelines about what they could do and what they could not do. We defined the parameters within which they could act, they were trained militarily and politically and we also briefed them about the kinds of things that - kinds of operations that they had to undertake and the kinds of operations that were taboo. Initially, of course, we knew at the initial stages who these operatives were, we helped infiltrate them into the country, we helped infiltrate the hardware or the weaponry they had to use into the country. We established some form of communication, impersonal communication with them and we also established some arrangements whereby they could come and report or we could get reports from them. So to a degree we knew what they were involved in, what operations they undertook and to some extent, initially, we were also responsible for some of the planning for the operations they undertook. But in some cases, because they had these general guidelines about what they could do, attack policemen, attack military, the military attack, administration and so on. They chose the targets themselves.

MR BERGER: So what you're saying is that within these guidelines the Commanders on the ground, the cadres on the ground, had an element of discretion?

GEN NYANDA: They did, Chairperson.

MR BERGER: I'd like to turn to the operations which were carried out, as you say in your further particulars by the Transvaal Urban Machinery. I'm referring to page 14 of the bundle. There are 37 operations mentioned there from page 14 through to page 16. Is it correct that you are applying for amnesty for these operations as well as others which might have been carried out by the cadres of the Transvaal Urban Machinery but of which you today still cannot remember or have no knowledge?

GEN NYANDA: It is correct, Mr Chairperson.

MR BERGER: Now we can see from that list of 37 operations that most of them were attacks, we can see, on police stations, on security personnel. But there also attacks on for example sub-stations, railway lines. Would those have fallen within the broad guidelines that you've referred to earlier?

GEN NYANDA: Certainly, Mr Chairperson.

CHAIRPERSON: Sorry Mr Berger, if I may just ask the General a question?

&#9;General, you've specified these 37 incidents and you've said that there may be other incidents that you are unaware of. How are you in a position to be aware of these particular ones? Were there report backs in respect of these ones or I just want to know how you know of these but not of others?

GEN NYANDA: Chairperson, in fact in some of these I may be vaguely aware of, I may not even be certain of who carried out some of these actions. Some yes, I am aware of, some of these or many of these were reported to me directly. The situation is this, in I think 1994/95 we were asked by the TRC as the ANC, following an earlier submission to - there was an enquiry as to exactly the kinds of operations that we had carried out, there was a request from the TRC for us to furnish full particulars of operations that had been carried out by the various structures of the ANC and we proceeded to sit and in some instances because we do not keep documents on operations that were carried out outside the country, to try to rake out some of the evidence and some of the operations that had been carried out and this is a result of the exercise that many people engaged in following a TRC request for the ANC to provide the list of operations that it had carried out.

CHAIRPERSON: Would I be correct in saying and say so from various other hearings I've been involved in, that there was very little in the way of written records of operations for fairly obvious reasons?

GEN NYANDA: It is correct.

CHAIRPERSON: And most of the report backs were verbal, maybe sometime, quite a long time after the carrying out of an operation when an operative left the country and went to Mozambique or Swaziland or Lusaka or whatever?

GEN NYANDA: It is correct, Mr Chairperson, in fact we deliberately did not want to keep records because otherwise it would have compromised our security and risked people.

MR BERGER: Thank you Chairperson.

&#9;In fact, General Nyanda, the reply that you are referring to, if you would have a look at this document before you, the further submissions dated 12 May 1997, the one that I'd referred you to, in appendix 4 there is a list of MK operations, it runs from page 72 of this second submission through to page 101. Is this the response that you were referring to?

GEN NYANDA: Exactly.

MR BERGER: Chairperson, if I could just read to you what it says at the start of appendix 4, it says:

&#9;"Please note, information in this list was drawn from press reports and the annual surveys of the SAIRR - South African Institute of Race Relations. These are not MK records, there are probably omissions and errors due to censorship during the apartheid era and other difficulties in collecting information of this nature."

Now the incidents reflected at page 14 to 16 of the bundle are - can you confirm - are extracted from this appendix 4, pages 72 through to 101?

GEN NYANDA: It is so, Mr Chairperson.

MR BERGER: And you are saying that there may even be or there are even operations listed here in the 37 that you don't have a good recollection of or an accurate recollection of, is that correct?

GEN NYANDA: It is correct, Chair.

MR BERGER: As I pointed out to you earlier, General Nyanda, most of these attacks are attacks on railway lines, policemen's houses, police stations, police barracks, but there is one here, number 27, which is an explosion at - this is at page 16 - explosion at Tshabalala's Dry Cleaners in Soweto. Do you know why a dry cleaner was targeted?

GEN NYANDA: Well I suppose because Mr Tshabalala was the major of Soweto and at that time there was a general campaign against what we referred to as collaborators and he was certainly regarded as a collaborator as the mayor of Soweto.

MR BERGER: And collaborators clearly fell within the guidelines set down by MK?

GEN NYANDA: Certainly.

MR BERGER: Then General, in addition to the 37, also in your further particulars, there is reference to the Johannesburg Magistrate's Court bombing at page 20 of the bundle. Just for the sake completeness, do you confirm again that you authorised this operation?

GEN NYANDA: Yes I confirm, Mr Chairperson, that that operation was planned by me and I instructed Mr Kwetle to carry it out.

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

NO FURTHER QUESTIONS BY MR BERGER

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

MR MOTLOUNG: Thank you Mr Chairperson, I have no questions.

NO QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Thank you. Mr Wagner, do you have any questions that you would like to ask the applicant?

CROSS-EXAMINATION BY MR WAGENER: Thank you Chairperson.

&#9;General Nyanda, are you aware that in terms of Section 18 of, if I may refer to it as the TRC Act, the Promotion of National Unity and Reconciliation Act, any person who wished to apply for amnesty should do so in respect of a specific act, omission or offence. Are you aware of this?

GEN NYANDA: I am aware, Mr Chairperson.

MR WAGENER: So when you filed your first application for amnesty on the 10th May 1997, for which incidents did you apply for amnesty?

GEN NYANDA: As I indicated in my application, for all incidents that the ANC in its submission of 12th August and 12th May 1997 had indicated.

MR WAGENER: So were you personally involved in all - I haven't counted them, but it must be a few hundred incidents listed from page 72 to 101 of this submission. Were you personally involved in all of them?

GEN NYANDA: I was not personally involved in all of them. As I indicated in my application, many of the acts are known to me unless otherwise stated by individual amnesty applicants, but it does not detract from me taking responsibility for their actions. I was a member of the National Executive Committee of the ANC as well at the time that the submissions were made.

MR WAGENER: So General, do you therefore say that you regard yourself as legally liable for all these actions, all these 30 pages of incidents and therefore you apply for amnesty in respect of all of them?

GEN NYANDA: The ANC leadership has taken responsibility for all the actions that it's cadres carried out in pursuance of it's objectives.

MR WAGENER: Sorry, but that's not the answer to my question. Can you please answer the question?

CHAIRPERSON: Perhaps if you can repeat it Mr Wagner?

MR WAGENER: The question is, General, you applied for amnesty for a few hundred incidents, the way I understand it. Correct? Is that what you intended as ...(intervention)

GEN NYANDA: As a member of the Executive, yes. All the operations, not just a few hundred. If there were a few thousand, yes.

MR WAGENER: Well, let's stick to your written application please. Your written application seems to refer to these 30 pages of incidents so that was why I ask you, you ask for amnesty for all these incidents, correct?

GEN NYANDA: That was what the application said.

MR WAGENER: Yes. Do you agree that nobody asked for amnesty if he is not personally liable in terms of the law of our country? There's no need for amnesty or there's no need to ask for amnesty?

GEN NYANDA: I didn't say that I do not have liability for the actions of the people that I sent into the country to carry out the operations that they did.

MR WAGENER: So was this first application of yours, what we may refer to as a blanket application for amnesty?

MR BERGER: Chairperson, I must object. My learned friend knows all too well because he's been in possession of these submissions of the ANC for as long or even longer than I've been in possession of them and he knows all too well that General Nyanda's role, like the role of many other combatants in MK is set out in some detail in these submissions. In fact the position that General Nyanda held, his position in the Transvaal Urban Machinery, is set out in these submissions and all one has to do is to look at the list of operations and check where those effected the General's areas of responsibility and my learned friend could work out for himself exactly what acts General Nyanda would be liable for under the laws of the land at that particular time. So it's not correct to say that it's a blanket amnesty application, it's an MK Commander saying "I was in MK, I authorised certain operations, I don't know the detail of all of those operations. If people come forward and say that I commanded them, if that is so I will admit it. I'm applying for amnesty because there is a cut-off date and I'm referring you to the submissions which my organisation made on my behalf and with my concurrence and if you read it, you'll see precisely what acts I am liable for."

MR WAGENER: Mr Chairperson, my learned friend should also be aware of the fact that this process of amnesty does not provide for general blanket amnesty and he should also know it is not for me to work out what General Nyanda is asking amnesty for. It is for his client, Mr Chairperson, to come here and state what incidents he is applying for amnesty for and on what basis and that is why I ask him these questions. Which incidents does he apply for amnesty for and I got the response. Apparently General Nyanda is applying for amnesty for all the incidents in this book, 30 pages of them, and therefore I'm perfectly entitled to ask the General on what basis does he apply for amnesty for all these?

CHAIRPERSON: Yes, I'll allow that question, Mr Berger, because it's basically we'll get down to a question of argument at the end. The General is obviously free to tell us in respect of what he applies for amnesty. We know that this list, appendix 4, although there's no information between the period 1960 to 1976, starts from 1960 and goes through right up into the cut off-date in the 1990s. So the question is fairly straightforward and the General can answer it. I can't see any problem there. 

&#9;So the question was, are you applying for amnesty in respect of all these matters that are listed in appendix 4?

GEN NYANDA: I think in the further particulars on page 14, there is states quite clearly what specific operations that to the best of my knowledge were carried out by the Transvaal Urban Machinery. They are listed there.

MR WAGENER: General, I will come to the further particulars later. At this moment I'm merely questioning you on the amnesty application that you signed on the 10th May 1997 and I'm asking you, on the 10th May 1997, for which incidents did you apply for amnesty?

MR BERGER: Chairperson, I'm sorry, I must object.

CHAIRPERSON: That's stated there, isn't it? There on the 10th, it says all the - as declared in the ANC Submissions 22 August 1996, Operational Documents 12 May 1997 and the declaration attached hereto. But that has been amplified by the further particulars.

MR WAGENER: Well General, if that is correct what the Chairperson has just said, why then did you say on page 5 under (i) you are applying for acts unknown to you unless stated otherwise by individual amnesty applicants? Why then did you say that? To me there seems to be a huge contradiction between (i) and (iv), or can you explain to this Committee and to myself, what did you mean when you signed this application?

GEN NYANDA: But I have just said that there are many operations which were carried out that I am not aware of and for which I'm also applying for amnesty. 

MR WAGENER: General, with due respect, had you been advised by your legal advisers that you can't ask for amnesty in that sense for unknown incidents and that you have to specify the incidents in terms of Section 18?

GEN NYANDA: We took the position in the African National Congress that because of the way of the modus operandi, because we sent people into the country to carry out operations under certain guidelines and they would carry out those operations which we would not abnegate responsibility for, for those actions and that those people if they could come out, come out and ask for amnesty for those operations and indicate that in fact they had been sent by us, if somebody comes up and says that he was sent by me or she was sent by me to carry out a specific action of which I had no recollection, of which I have no knowledge, then of course I accept responsibility whether the Act stipulates otherwise or not.

MR WAGENER: So since signing this first application you gave a list of incidents from page 14 onwards. Did you get these incidents then from other applications by some of your colleagues or where did you come by these incidents? Sorry, if I may rephrase? How did you decide in the end to apply only for these 37 incidents?

GEN NYANDA: I was a Commander of the Transvaal Urban Machinery for some time and as indicated by my legal representative and when he led evidence, because we were asked by the TRC to provide further particulars, to provide details of the kinds of actions that Umkhonto weSizwe was involved in, we had to go through the records of newspapers and so on because we did not keep our own records. This is how some of these things come about.

MR WAGENER: But General, my question is slightly different. In your initial application you said you apply for acts unknown unless stated otherwise by individual amnesty applicants?

GEN NYANDA: Yes.

MR WAGENER: My question is, the list that we now find on page 14 onwards, did you get that from other amnesty applications?

GEN NYANDA: It was compiled by teams who worked in the ANC to try to get the activities which took place, recorded incidents in the area in which I was responsible.

MR WAGENER: As a matter of interest General, if I may go back to page 5 of the bundle, there you refer at the bottom of the page to a future document. This application is dated the 10th May. Do you state here that you were already in possession of a document of a future date when you ...(intervention).

GEN NYANDA: What document of a future date?

MR WAGENER: In your application of 10 May you refer to a document dated 12 May.

GEN NYANDA: We had already compiled this.

MR WAGENER: So this document, although it's dated the 12th May, was that already available to you on the 10th, is that what you're saying?

GEN NYANDA: Well I'm not sure about the dates, all I'm saying here is that I'm describing to you the way we compiled the incidents as far as the Transvaal Urban Machinery were concerned, was concerned and these incidents, including others, that other people were responsible for, formed part of the ANC Submission, part of that document that you refer to.

MR WAGENER: General, I want to be absolutely sure. On the 10th May 1997 were you in possession of this document dated the 12th May 1997, two days later? Were you or were you not?

GEN NYANDA: We were responsible for compilation of that document.

MR WAGENER: Were you in possession of this document on the 10th May 1997, yes or no?

GEN NYANDA: It is quite possible that we had that document.

MR WAGENER: Even though this is a later date?

GEN NYANDA: Because it was compiled by the ANC.

CHAIRPERSON: That date, do you know that date the 10th May 1997, was that the date - you don't know whether it's the date of compilation of that or the date of submission of that?

GEN NYANDA: I don't know.

MR WAGENER: General, if you were in possession of this document, why then couldn't you specify the incidents for which you applied for amnesty already at that stage? Why only wait another two years?

GEN NYANDA: What two years now are you referring to because ...(intervention)

MR WAGENER: Only apparently in 1999, Mr Chairperson, my documents are not dated but - or maybe my learned friend can help me? This document called Further Particulars, what is the date thereof? Maybe Mr Berger can just indicate to us what is the date of this document you find from page 13 onwards called Further Particulars?

MR BERGER: No, I can't assist. I don't have a date on my document either.

JUDGE MOTATA: If we look at the bottom of the pages, to me it would appear there's a date there, 1999 October. It's a faxed document.

MR WAGENER: Exactly, that is why I said two years later but I may be wrong but it was in that sense that I said you waited for another two and a half years before you specified incidents. My question to you is why, if you were already in possession of this document on the 10th May 1997, why did you take so long?

GEN NYANDA: Because I was responsible for the Transvaal ...(indistinct) still from those incidents that appeared in the ANC document, there was that pertained to me directly. But those very same incidents formed part of the compilation of that major document of 1997.

MR WAGENER: General, were you ever part of a unit you called or the ANC called Special Operations?

GEN NYANDA: I was never.

MR WAGENER: Did you work alongside them or did you work independently from Special Ops?

MR WAGENER: Special Operations worked independently.

MR WAGENER: Do you know a person called Aboobaker Ismail?

GEN NYANDA: I do.

MR WAGENER: He was with Special Ops?

GEN NYANDA: He was, yes.

MR WAGENER: Have you perhaps read his amnesty application?

GEN NYANDA: I did not.

MR WAGENER: Will you accept if I tell you that he, as a Special Ops Commander, applied for amnesty for a number of incidents for which you now apply for and I will give the particulars to your legal advisers. For the moment will you accept if I tell you that?

GEN NYANDA: I have said that the compilation of, it is quite probable when I started giving evidence that it is quite probable that some of the operations listed here were not carried out by people under my command and that in fact this was done by people taking things from the press because we had to compile a list of operations that took place and because these incidents were in the Transvaal and I was overall responsible for the Transvaal, it is quite possible that some of the incidents here, other people are responsible for.

MR WAGENER: So you regard yourself as responsible for the old Transvaal in general and that's why you apply, for in case, for maybe, just for in case it was some of your people who did this but you don't even know?

GEN NYANDA: Hence 9(i)(a) to say that some of the acts may be unknown to me because people who operated in a manner that I discussed, that I've described here, were given general guidelines and they took part in operations some of which were not reported to me. There are many who operated under me who performed acts which I am not aware of and it is quite possible that there are people who operated under other people and we make an assumption that that action was under the auspices of the Transvaal Urban Machinery when it was not.

MR WAGENER: So in that sense and I put it to you because I will probable argue this, that your application still as it stands here is a kind of a general application, for in case, you don't even know? It's like all MK operations in the Transvaal, you don't know whether you were involved or not but for in case?

GEN NYANDA: I have said, Mr Chairperson, when I described our modus operandi that initially yes, we knew some of the operatives and the actions that they carried out and some of them were actually involved in the planning and carrying out of those activities but in some instances and as the struggle developed, in many instances there was no way in which we could keep track of the activities of individual operatives and units in the country and that they carried out actions which we did not know about which they did not report and so it is quite possible yes, what you say.

MR WAGENER: My client who was injured in an incident to which reference is made on page 16 of your bundle under your listed item 33. Do you know who were responsible for that attack?

GEN NYANDA: I think if you're referring to Booysens?

CHAIRPERSON: Wonderboom Police Station, occurring 1981, number 33 on your list on page 16 of the bundle.

GEN NYANDA: Well I can't say immediately but I think there was - it was a unit under my command or under my instruction. I'll give you the names.

MR WAGENER: General, may I refer you to page 84 of your bundle, at the top under paragraph 4, you will see certain names mentioned. Page 84 at the top, paragraph 4.

CHAIRPERSON: The document, General, starts on page 83. That's "Terrorist Attack on South African Police Station, Wonderboom."

GEN NYANDA: Yes.

MR WAGENER: Yes, in fairness General, this seems to be a police document shortly after the incident and certain details are given and then on page 84 at the top it is mentioned that certain people who are named there were the suspects in this matter? Do you know these people mentioned there?

GEN NYANDA: I know Nelson Hhlongwane and also Simon Mogarane, Chindela, Bruce, Geram Soludi.

MR WAGENER: Were these people serving under your command?

GEN NYANDA: Yes they were.

MR WAGENER: Were they responsible for that operation or don't you know?

GEN NYANDA: Yes they were.

MR WAGENER: Do you say that as a fact or are you guessing?

GEN NYANDA: Well I think some of them - all of them are late and I think I did receive a report. This is a long time ago.

MR WAGENER: No, I accept that, that is what I would like to ask you. Can you remember anything specific about this incident, this attack? I realise it's going for 19 years ago but nevertheless, can you remember anything about this attack?

GEN NYANDA: No, apart from the fact that it was an attack at the police station I don't remember any particular thing.

MR WAGENER: Can you remember any prior planning sessions or can you remember any prior instructions to anyone?

GEN NYANDA: No.

MR WAGENER: Can you remember any report back?

GEN NYANDA: I think I recall a report back yes, but I can't recall the details of the report back, Mr Chairperson.

MR WAGENER: General, you've referred to General Guidelines to these operatives. What were those guidelines?

GEN NYANDA: Guidelines about what to attack, who to attack, what installations to attack. Primary targets were police, police installations, military, military installations, infrastructure, railways, electricity and so on.

MR WAGENER: How were these guidelines conveyed to the operatives?

GEN NYANDA: Verbally.

MR WAGENER: By whom was it conveyed?

GEN NYANDA: By myself, by my staff and general political guidelines that people had in their training and in briefings and the talks by the leadership.

MR WAGENER: So if you can help us here, did you have an office in Swaziland?

GEN NYANDA: No, we had safe places in Swaziland.

MR WAGENER: So would it happen at this safe house or whatever you call it, that you would meet the operatives there and you would then instruct them in terms of these general guidelines?

GEN NYANDA: We had safe houses in Swaziland and Mozambique. Some of the preparation was in Mozambique which was relatively a safer haven for us than Swaziland and most of the briefings were done in Mozambique, most of the preparations were done there. Some of the briefings were done in Swaziland.

MR WAGENER: General, what were the guidelines ... (intervention)

MR BERGER: Chairperson, with respect, my learned friend is representing a person who was injured in an attack on a police station. I don't know if my learned friend is disputing that police stations were generally targeted by MK and that they were in fact - I know the Act doesn't speak about it, but I know they were legitimate targets, police stations. I don't know why we're going on this whole discourse about guidelines?

CHAIRPERSON: Mr Wagener?

MR WAGENER: Chairperson, what I'm aiming at and I will come to that shortly if I'm allowed, is where did these guidelines come from, how were they conveyed and the obvious question in the end will be why is there only this one General here before us as an applicant?

CHAIRPERSON: I think we've got at least another General here before us today and then it's up to individuals to apply, isn't it, Mr Wagener? I mean, you know, the fact that some people apply and some don't shouldn't in any way have any effect on the application of those people who do apply?

MR WAGENER: Of course Chairperson.

&#9;What were the guidelines, General, in respect of innocent civilians?

MR BERGER: Chairperson, does my learned friend represent an innocent civilian?

MR WAGENER: Chairperson, I see on page 82 of the bundle of this very incident, these ANC people fired shots at innocent civilians and I would like to ask General Nyanda in respect of instructions given to him, apparently to his operatives, I think I'm perfectly entitled to ask these questions?

CHAIRPERSON: Yes okay, you can proceed. You can answer that General?

JUDGE MOTATA: But shouldn't we have a caution as well that the document at page 82 referred to was not necessarily compiled by the General, this was done by the South African Police and I suppose we should tread lightly whether that information is precise?

MR WAGENER: Chairperson, I have noted that comment. In lieu of any evidence to the contrary, I have in front of me an official or what seems to be an official police report regarding this incident and reference is made to shots fired at what seems to be innocent civilians?

MR BERGER: Chairperson, with respect, does my learned friend act on behalf of such a person?

CHAIRPERSON: Your client, Mr Wagener, was he a civilian or a police personnel?

MR WAGENER: At the time Chairperson, my client was a civilian doing police duties in terms of what they called like camps that military had.

CHAIRPERSON: Oh, instead of going to do military training he did police - so what you're asking now about the guidelines relating to civilians? I can't see any problem with being answered what was the situation relating to civilians and the injuring or the damaging of property owned by civilians?

GEN NYANDA: We had to avoid inflicting injury on civilians or getting civilians ...(intervention)

CHAIRPERSON: And what would be the position - sorry, General to interrupt, a civilian who was doing police duty in lieu of let's say military training, what was he regarded as by yourselves?

GEN NYANDA: A legitimate target.

MR SIBANYONI: Is it, General, perhaps the farmers which were encouraged to operate along the borders and to do reconnaissance as well as providing intelligence? Is it in the same light.

GEN NYANDA: No, he's a policeman, he's just like a soldier. The difference is that instead of doing duty the military people who were doing duty in the military were no different from the ones who were doing military service and if he was doing instead of, in lieu of military service, police service, he was a legitimate target as well.

CHAIRPERSON: Mr Wagener?

MR WAGENER: General, my next questions will have reference to December 1981 because that is ...(intervention)

CHAIRPERSON: Sorry? December 1981?

MR WAGENER: Yes, sorry, did I say something else?

CHAIRPERSON: No, go ahead.

MR WAGENER: December 1981, when this attack took place. Can you remember, what was your position in the ANC or in MK then?

GEN NYANDA: I was the Commander of the Transvaal Urban Machinery. 

MR WAGENER: Now, correct me if I'm wrong, I understand that was part of what was called a senior organ in Swaziland or is that not correct?

GEN NYANDA: No, I was a Commander of this, if you ask me what I was, I was then a Commander of the Transvaal Urban Machinery.

MR WAGENER: Yes but in turn I understand that your unit or your component formed part of what is referred to as a senior organ, is that correct?

GEN NYANDA: The senior organ was the political leadership but the military organisation was something else. Senior organ gave the overall political direction in the region.

MR WAGENER: I think maybe I will rephrase. As a military Commander then, who was your Commander? To who did you report?

GEN NYANDA: To the central Commander. Joe Modise was my Commander.

MR WAGENER: And from whom did you receive the guidelines that you had to pass on to your understudies?

GEN NYANDA: The guidelines were from the military command.

MR WAGENER: How did you receive these guidelines from your military command?

GEN NYANDA: Verbally.

MR WAGENER: Was that in Lusaka?

MR BERGER: Chairperson, my learned friend, I don't know if he's trying to widen the net or if he is going on a fishing expedition but his client was someone who was eligible for military conscription serving in a police station. I don't know how any of these questions have any relevance on his client?

MR WAGENER: Chairperson, in the first place, I sat and all of you sat through days of cross-examination by people like my learned friend cross-examining my clients along these exact lines. In the second place, Mr Chairperson, my client was injured in this attack. If he was injured and there's someone that he can sue or that he can be asked to be brought before justice, it is his perfect right to do so. So therefore I'm asking General Nyanda from whom did he receive his guidelines, his instructions, to pass on to his understudies? I can't see any problem. Mr Berger himself, he cross-examined for days on end clients of mine in the same position as General Nyanda. I find it rather strange that he now objects?

MR BERGER: Chairperson, if I could just clarify, what my learned friend is referring to is when I cross-examined the Generals that he represents is because they say they acted off their own bat. General Nyanda is not saying that.

CHAIRPERSON: In any event, do we need to know how the guidelines were transmitted, Mr Wagener? I mean do you dispute that there were guidelines?

MR WAGENER: The question was, Mr Chairperson, that if you disallow the question I will abide. The question was from whom did he receive his guidelines and the next question then was, was this verbally and the General said verbally and then I asked him, in Zambia? That was where we stopped. But if you disallow these questions ...(intervention)

CHAIRPERSON: Well you can carry on but bear in mind that we don't need the finest detail as to where they were handed down or whether it was oral or written.

MR WAGENER: Except Mr Chairperson, with all respect, these are the questions that are expected from my clients for days on end.

CHAIRPERSON: You can ask, I said you can carry on.

JUDGE MOTATA: Besides, Mr Wagener, I'm not even privy to such questions and I wonder what probable value would they have because I've got to decide on what is before me, that it happened in the past would it form part of this? Wouldn't this hearing be guided by what we allow and disallow?

MR WAGENER: Chairperson, I'm merely asking General Nyanda, it could be that he was on a frolic of his own. That's why I'm asking him these questions.

JUDGE MOTATA: ...(indistinct) if General Nyanda says the legitimate target and we take this instance of your client, the victim, that he was regarded even as he did his conscription duty as a policeman, he was a legitimate target and we look at it from the background of the conflict of the past, that they targeted this. From the answer given, would it take us any further?

MR WAGENER: Of course, Mr Chairperson, your colleague is speaking from experience of what we've heard in many matters here. All I'm asking this General is, where did he get his instructions from?

CHAIRPERSON: So he said so.

MR WAGENER: The final question on this issue, General, is that must we then take it that people in your position never ever received written instructions of any sorts?

GEN NYANDA: I can't recollect but when we were briefed by people from military quarters they came to where we were mainly in Maputo and gave us verbal instructions. We had meetings periodically where we gave reports and where we got guidelines.

MR WAGENER: Coming back to this very incident of Wonderboom Police Station, was there any report back to you?

GEN NYANDA: There was a report back, yes.

MR WAGENER: By whom?

GEN NYANDA: I think by Johannes Hhlongwane ...(indistinct).

MR WAGENER: Did he do so in person to you?

GEN NYANDA: Yes he did.

MR WAGENER: Where did this happen?

GEN NYANDA: Either in Swaziland or Mozambique, one of the two.

MR WAGENER: Isn't he the person that was arrested two days after the incident? Which one is Johannes, maybe I should ask you that first? If you refer to page 84, is it one of those people at the top?

GEN NYANDA: In fact I'm even making a supposition here but I think I'm correct because he was not arrested. Nelson ...(indistinct) at the very top.

MR WAGENER: Yes, no you're correct, he wasn't arrested.

CHAIRPERSON: Tell me, while we're there, General, I see there's in brackets after his name "Commander". As far as you can recall, would he have been a Commander of the unit?

GEN NYANDA: Yes he was a Commander of the unit, Chairperson.

MR WAGENER: General, from the bundle that I have, I'm not sure of this, that's why I'm asking this question, but is your co-applicant, Mr Shoke, was involved in this incident?

GEN NYANDA: I don't think so.

MR WAGENER: Is he applying for amnesty in this or don't you know?

GEN NYANDA: I don't know.

MR WAGENER: Shall I ask him? Because I'm not sure. Perhaps you can tell us, what was his position at the time?

GEN NYANDA: Well he was an operative.

MR WAGENER: This is now again December 1981?

GEN NYANDA: Yes.

MR WAGENER: He was not a Commander?

GEN NYANDA: No.

MR WAGENER: But you were his Commander?

GEN NYANDA: Yes. He was one of the people who was in one of the units.

MR WAGENER: If you will allow me just a minute?

MR SIBANYONI: Maybe while you are still there, General, did these units have specific names?

GEN NYANDA: Some of them had, yes.

MR SIBANYONI: Thank you.

MR WAGENER: Thank you. General, lastly and I'm sorry that I go a bit back. These incidents that you referred to now on I think page 14 onwards. Are those the only ones that you could establish that you were probably involved in and that's why you mention them?

GEN NYANDA: Yes.

MR WAGENER: During the hearing of the Johannesburg Magistrate's Court bomb incident, you will remember, you were here, I was here as well, your - or Mr Landman appearing on the applicants then and I will ask the record to be given, he specifically said that you're not an applicant in that matter. Can you remember that?

GEN NYANDA: I was not an applicant in that matter on that day.

MR WAGENER: Chairperson, if you will allow me because I appeared in that matter on behalf of another victim as well and I'm not sure about this. Are you applying for amnesty for that incident now, today?

GEN NYANDA: Mr Landman or whoever again is on record as saying that I will not deny that I gave the order there.

MR WAGENER: No, that's correct. That's correct. 

CHAIRPERSON: I think the question was, was that one of the incidents in which you are now applying for amnesty? I think it's referred to on page 16 of the record.

GEN NYANDA: Yes it is.

MR WAGENER: In other words - Chairperson, if I may seek your guidance, well at the end of this hearing you will also decide on that?

GEN NYANDA: The General said he is applying for it, yes.

MR WAGENER: And that incident is before you, you will also give judgment on that incident, is that what the position is? I'm not sure here.

CHAIRPERSON: If the applicant says that he is applying for it and I think it's on page 14, is it? Or is it later? Sorry, page 20, it's mentioned there. If it's in his application then we'll consider it.

MR WAGENER: Chairperson, maybe this is by way of comment but I think it's unfortunate that the applications are dealt with in this way because that was a lengthy hearing when I appeared for someone and one could have prepared properly because there's lots of disputes in that matter on certain aspects and to me this is merely by way of comment. I find it unfortunate ...(intervention)

CHAIRPERSON: We will receive submissions from both sides in relation to it but it is one of the incidents for which the General applies, so we're bound to consider it.

MR BERGER: Chairperson, I'm sure my learned friend knows that a decision has been given in relation to the Johannesburg Magistrate's Court bomb and in fact amnesty was granted to the applicants who appeared before the Committee at that stage. Including General Shoke who is on my right hand side.

CHAIRPERSON: If that is the case we will not be duplicating General Shoke's application again because it's finished.

MR WAGENER: Mr Chairperson, yes, I've got the judgment with me. All I'm saying is that we find it uncomfortable in dealing with an application in this way, we're not sure exactly which incidents are dealt with and which not. That's all I'm saying.

CHAIRPERSON: Thank you. Do you have any further questions Mr Wagener?

MR WAGENER: Thank you Chairperson, I've got no further questions.

NO FURTHER QUESTIONS BY MR WAGENER

CHAIRPERSON: Ms Patel, do you have any questions you would like to put to the General?

MS PATEL: No thank you, Honourable Chairperson, except just to follow onto the discussion. Not all General Nyanda's applications for the incidents he is applied for has been set down, only those that were ready for hearing have in fact been set down and my understanding at all stages in respect of the Johannesburg bombing, that the General hadn't applied for that incident and so it's not before us in any event in that the reference in his further particulars to that incident, is merely to confirm that he in fact authorised that operation but we certainly didn't read it as one of the incidents for which he has applied for amnesty but I guess we will deal with that later?

CHAIRPERSON: We'll deal with that later when submissions are made. Mr Berger, do you have any re-examination?

MR BERGER: I have no re-examination, thank you Chairperson.

NO RE-EXAMINATION BY MR BERGER

CHAIRPERSON: I'll just ask my colleagues if they have any questions that would like to put. Judge Motata, do you have any questions?

JUDGE MOTATA: I've got none Chairperson.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: I've got no questions, Chairperson.

CHAIRPERSON: General, thank you, that's concludes your testimony.

GEN NYANDA: Thank you Chairperson.

WITNESS EXCUSED

CHAIRPERSON: Mr Berger?

MR BERGER: Chairperson, I see it's five past one. Would this be an appropriate time?

CHAIRPERSON: Thank you, I was unaware of that. We'll take a lunch adjournment until quarter to two. We'll resume at quarter to two. Thank you.

COMMITTEE ADJOURNS

NAME:&#9;&#9;&#9;SOLLY ZACHARIAH SHOKE

APPLICATION NO: &#9;AM5303/97

_____________________________________________________

ON RESUMPTION

CHAIRPERSON: Mr Berger?

MR BERGER: Thank you Chairperson. The next witness is General Shoke. He will also affirm.

CHAIRPERSON: Thank you. 

SOLLY ZACHARIAH SHOKE: (affirms)

EXAMINATION BY MR BERGER: Thank you Chairperson.

&#9;General Shoke, could you tell the Committee what your present position is in the SANDF?

GEN SHOKE: I am Director, Personnel Acquisition.

MR BERGER: Say that slowly this time?

GEN SHOKE: I am Director, Personnel Acquisition.

MR BERGER: You have made an application for amnesty which appears in the bundle from page 21 through to 27 as well as the annexure to that application which runs from page 28 to 29, is that correct?

GEN SHOKE: Positive.

MR BERGER: You also made a statement which is to be found in the bundle from page 30 through to page 36. Can you confirm that?

GEN SHOKE: Yes.

MR BERGER: And finally, you also gave evidence before a Committee of the Amnesty Committee in White River two weeks ago in connection with the landmine campaign and your involvement therein, Operation Hlatshwayo, is that correct?

GEN SHOKE: Exactly.

MR BERGER: You've heard the evidence today of General Nyanda. Do you confirm that evidence or is there anything that you wish to alter?

GEN SHOKE: I confirm it.

MR BERGER: We should just for completeness sake mention that when you gave evidence in White River two weeks ago, you effected certain changes to your statement, the statement which starts at page 30 of the bundle, and I'll just run through those changes again. Some of them are not that relevant to this application, but at page 33 under the heading "C. 1985 - 1990" the second paragraph which reads:

&#9;"Transvaal was later split into the Transvaal Urban and Transvaal Rural"

You deleted the word "later", am I correct?

GEN SHOKE: Exactly.

MR BERGER: And then also, at the bottom of that page, paragraph 8:

&#9;"Amongst the activities of the Transvaal Urban region included the planting of landmines along the borders of the former Eastern Transvaal."

Again, you deleted the word "urban"?

GEN SHOKE: Exactly.

MR BERGER: So it's the Transvaal region as a whole. And again, not relevant here but for completeness sake at page 35, the second paragraph, which ends with the words:

&#9;"based with that information"

you added another sentence to the effect that 

&#9;"that was not always the case."?

GEN SHOKE: Correct.

MR BERGER: General Shoke, this application that we are concerned with today relates to page 22 of your application in the bundle where you say under paragraph 9(a)(i) for acts, you say attacks on police stations, power stations, administration buildings. As I say, the landmine explosions we've dealt with already. And if we turn to the - you also refer there to an annexed document and the annexed document is page 28 and 29, at the bottom of page 28 you say:

&#9;"The following are the operations that I was directly involved in"

and you list there the bomb blasts and attacks at the various police stations. In number 5, administration offices, and on page 29 the sub-station blast at Rosslyn and the attempted sabotage at the Watloo Petrol Depot. Can you briefly tell the Committee what was your involvement, what positions were you holding at the time of these attacks and why is it that you take responsibility for these attacks?

GEN SHOKE: First I can say I was a participant. In some actually I was a Commissar, in some I was Commander of the unit.

MR BERGER: All of these units fell under the Transvaal Urban Machinery, is that correct?

GEN SHOKE: Correct.

MR BERGER: A Commander of the unit, that speaks for itself, but Commissar? What was a Commissar responsible for?

GEN SHOKE: A Commissar is responsible to give political guidance in terms of the ANC structures and is also the second-in-command.

CHAIRPERSON: And General, even in those instances where you were the Commissar, were you also on the ground in respect to the carrying out of these operations?

GEN SHOKE: Those that I've listed, yes.

CHAIRPERSON: The ones listed on page 28 here, the six of them? No 29, the eight of them?

GEN SHOKE: Correct.

MR BERGER: Thank you Chairperson, I've no further questions.

NO FURTHER QUESTIONS BY MR BERGER

CHAIRPERSON: Before I ask for any questions, perhaps if I could just get some detail?

&#9;Uncle Tom's Administration Offices, are they in Soweto?

GEN SHOKE: Sure.

CHAIRPERSON: And Watloo? Whereabout is Watloo?

GEN SHOKE: Pretoria.

CHAIRPERSON: Do you know in which of these incidents that you've listed here, General, these eight incidents, whether persons were injured or killed or only damage to property? Are you in a position to indicate those in which persons were injured or killed, whether there were in fact a gross human rights violation as contemplated by our Act?

GEN SHOKE: I think what I can say is only based on press reports.

CHAIRPERSON: Yes.

GEN SHOKE: To the best of my recollection, this is Maroka, Orlando and Mabopane.

CHAIRPERSON: And in those incidents, do you know whether people were killed or only injured or both?

GEN SHOKE: It's very difficult for me to say I know or not but according to press reports.

CHAIRPERSON: According to the hearsay information that you have?

GEN SHOKE: It would seem as if people were killed.

CHAIRPERSON: Were killed and injured in those three. And General, these attacks like you talk about bomb blasts at Daveyton, Morako, Orlando, you've just mentioned the names, were they also bomb blasts or limpet mines?

GEN SHOKE: They vary.

CHAIRPERSON: Sorry?

GEN SHOKE: They vary. In Daveyton for example it was a bomb blast.

CHAIRPERSON: Yes, Daveyton was a bomb blast and then Maroka?

GEN SHOKE: It was an assault.

CHAIRPERSON: With firearms?

GEN SHOKE: Exactly.

CHAIRPERSON: And Orlando?

GEN SHOKE: It was also a raid.

CHAIRPERSON: With firearms and then Uncle Tom's - sorry Booysens?

GEN SHOKE: It was also a raid.

CHAIRPERSON: And Uncle Tom's?

GEN SHOKE: It was just arson.

CHAIRPERSON: What - how was that done, was it set off by some sort of delayed detonator or did - throw a fireball or malatov cocktail through a window, what sort of thing was it?

GEN SHOKE: We physically destroyed the documents.

CHAIRPERSON: Physically burned documents?

GEN SHOKE: Exactly, during the rent boycott.

CHAIRPERSON: During the rent boycott. Is Uncle Tom's your own name or is it a real name?

GEN SHOKE: Yes.

CHAIRPERSON: Real name? Because I was thinking maybe being an Uncle Tom, it was called Uncle Tom's, not so? It's just coincidental it was called Uncle Toms. Mapobane?

GEN SHOKE: It was also a raid.

CHAIRPERSON: The blast at Rosslyn, is that the limpet mine?

GEN SHOKE: Mini limpet mines.

CHAIRPERSON: And the attempted sabotage at Watloo? What was the attempt there, placing of mines that didn't go off?

GEN SHOKE: Exactly.

CHAIRPERSON: And did you consider all these targets as being legitimate targets?

GEN SHOKE: That is correct.

CHAIRPERSON: Were they within the guidelines referred to General Nyanda in his evidence?

GEN SHOKE: Exactly, but not only General Nyanda, by the ANC.

CHAIRPERSON: By the ANC?

GEN SHOKE: Yes.

CHAIRPERSON: Referred to by General Nyanda in his evidence.

&#9;And these attacks, these actual attacks where you went in with firearms, what time of the day? Did you take into account the civilian population or people who might be attending at the police stations, that sort of thing? Or when were they conducted?

GEN SHOKE: Yes, we did take that into consideration and they were done at night between 8 and 10 and never carried out over the weekend or from Friday to Sunday when in fact members of the public would be there en masse.

CHAIRPERSON: Mr Motloung?

JUDGE MOTATA: General Shoke, this Uncle Tom's administration offices, is that when there were temporary offices in the actual hall because there were prior offices which served the area?

GEN SHOKE: Well they were temporary offices after the other offices were destroyed by the community.

JUDGE MOTATA: Thank you. Thank you Chairperson.

CHAIRPERSON: Mr Motloung?

MR MOTLOUNG: Thank you Mr Chairperson, I have no questions.

NO QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Mr Wagener?

MR WAGENER: No questions, Chairperson.

CHAIRPERSON: Ms Patel?

MS PATEL: Thank you Honourable Chairperson. For the record might I just state, Honourable Chairperson, that the matters for which General Shoke has applied, those that are on the roll today are Daveyton, Maroko, Orlanda only. The rest five to eight were not placed on the roll for today and the other incidents, the Johannesburg Magistrate's Court bomb and the landmine attack have already been heard.

CHAIRPERSON: Sorry, just repeat that? Daveyton?

MS PATEL: Daveyton, Maroko and Orlando are on the roll for today out of the applications of General Shoke. On page 28 from number 4 to number 8, those aren't on the roll for today.

CHAIRPERSON: ...(inaudible)

MS PATEL: The Johannesburg Magistrate's Court bomb, that's number 2, that is listed further down on page 29 and also number 1, the landmine attacks, those have been heard about two weeks ago, I think, or a week ago.

CHAIRPERSON: ...(inaudible) do you have any questions to ask?

CROSS-EXAMINATION BY MS PATEL: I do, thank you Honourable Chairperson.

&#9;General, can I just go back to the Daveyton Police Station? Can you tell me exactly what your involvement was in that operation?

GEN SHOKE: I was a participant.

MS PATEL: Alright, what exactly did you do?

GEN SHOKE: We placed in fact a bomb.

MS PATEL: Where was it placed?

GEN SHOKE: Attached to the wall, next to the wall, if I memory still serves me well.

MS PATEL: Sorry Sir, I didn't get that?

GEN SHOKE: If my memory still serves me well, against the wall.

MS PATEL: Okay, it was placed next to the wall and how was it timed to go off, was it timed to go off at a particular time or how was that done?

GEN SHOKE: Yes exactly. I can't remember the time now but it was around eightish if my memory serves me well and it was to go off 30 minutes later.

MS PATEL: Alright and I will confirm that no one was injured in that incident, Honourable Chairperson.

&#9;Is there any specific reason why Daveyton, why there was just a bomb planted there as opposed to the raids that were carried out on the other police stations?

GEN SHOKE: I think maybe yes you might have observed our struggle in fact, as our struggle gained momentum. Also the intensity increased. I think you are aware that actually in the '60's they started with the railway lines, buildings, until actually we took our struggle to higher heights when we started in fact physically engaging the Security Forces.

MS PATEL: Alright and the planning that was done for that operation, were you the main person in charge of the planning?

GEN SHOKE: You're talking of Daveyton?

MS PATEL: That's right?

GEN SHOKE: No we were two.

MS PATEL: Alright and who is the other person involved?

GEN SHOKE: Unfortunately he is late.

MS PATEL: He is late?

GEN SHOKE: Yes so I think it serves no purpose, it's Nicky Hhlongwane.

MS PATEL: Hhlongwane, okay fine. Alright and then the Maroko incident, who did the planning for that incident?

GEN SHOKE: I can say in fact it was a combined planning between the internal and external.

MS PATEL: Alright, can you tell us who was involved in the planning?

GEN SHOKE: External in fact like General Nyanda said in fact in his evidence. The Transvaal Urban Machinery was involved.

MS PATEL: Yes?

GEN SHOKE: And then when we came in, okay involving targeting the scene, selecting the target and also trying to help us with gathering information because I think you might be aware that that was one of the first raids ever conducted in South Africa on an establishment and thereafter internally we were to do our own actual planning for a target and reconnaissance.

MS PATEL: Okay, how many people were involved in that incident on the ground?

GEN SHOKE: Four.

MS PATEL: Is it the same cell as was mentioned in the Wonderboompoort Police Station attack, can you tell?

GEN SHOKE: No, no, no, I never mentioned Wonderboom and I was not involved.

MS PATEL: Yes, no that was General Nyanda's information. Was it a different cell that you were involved in?

GEN SHOKE: Yes, I was involved in a different cell, exactly. But I think maybe what I want to bring, to clarify here is that some of the people who might have been involved in Wonderboom were involved with me in Moroka. We started in fact as a small group of four and as the struggle started to intensify, the units also expanded. Those with experience took in new people, so we split into two units.

MS PATEL: Okay?

GEN SHOKE: And the one in fact in Wonderboom was led by the late Hhlongwane and I was with my unit.

MS PATEL: And who were the members of your unit?

GEN SHOKE: It will also vary according to operation by operation.

MS PATEL: Okay, let's talk about the Moroka incident?

GEN SHOKE: Moroka it was Nicky Sangele.

MS PATEL: Yes?

GEN SHOKE: Myself.

MS PATEL: Yes?

GEN SHOKE: Tegema Parani.

MS PATEL: Yes?

GEN SHOKE: And Marcus Machau.

MS PATEL: Machau. Alright. What was decided at the planning at that raid, was it initially decided that only the building would be damaged or was it foreseen that people would be injured in this raid? Was that part of the planning? 

GEN SHOKE: Most unfortunately, actually, where now it was a physical attack on the police. As you could remember quite well, it happened shortly after the execution of Solomon Mashlangu.

MS PATEL: Okay?

GEN SHOKE: And even the pamphlets that were left behind actually, we did indicate that we also now avenge for the death of Solomon Mashlangu.

MS PATEL: Okay.

GEN SHOKE: I don't think I need to repeat what was known to you or to everybody in South Africa that by that time that when our people were ...(intervention)

MS PATEL: No, it's not necessary to go into all of that, General, I can assure you. That's just one curious thing that has come out in the evidence about this Moroka incident. There were reports about a certain Johannes Ramagaga who is supposed to be an ex-policeman who I think was dishonourably discharged from the police and was then later said to be involved in this incident. Do you know anything about this?

GEN SHOKE: I can say I don't know Ramagaga and if there's anything the police must take him out and they must clearly indicate why actually they said they linked him to Moroka.

MS PATEL: Then just finally on this incident, what exactly did you do at the scene, what was your physical participation at the scene?

GEN SHOKE: I think as soldiers or as guerillas we worked as a team. We attacked the police station.

MS PATEL: What exactly did you do. I appreciate it's a long time ago but can you recall exactly what it is that you did?

GEN SHOKE: You're asking me quite a difficult question. A raid is a raid. Everybody in fact in a raid is got his sector that he's got to take care of.

CHAIRPERSON: Did you actually enter into the building of the police station or did you stand outside at the perimeter and fire towards the building?

GEN SHOKE: We went into the police station. I actually in fact was the one who firstly approached the scene to ensure that in fact I opened a passage for the rest to enter the scene and I maintained security at the gate after I ...(indistinct) the guards.

MS PATEL: If I can just move on then to the Orlando Police Station attack which occurred in the same year? Who did the planning for that attack?

GEN SHOKE: We did it.

MS PATEL: Is it the same group as for the Maroko attack?

GEN SHOKE: With the exception of Msiswe.

MS PATEL: The exception of who, sorry?

GEN SHOKE: Msiswe - Nicky Hhlongwane.

MS PATEL: Hhlongwane, okay.

GEN SHOKE: And the inclusion of the third applicant.

MS PATEL: Okay. And then once again you were physically present at the police station?

GEN SHOKE: That is correct.

MS PATEL: Can you tell us what you did exactly?

GEN SHOKE: I was part of the team in fact, the assault team.

MS PATEL: Yes?

GEN SHOKE: That's my part.

MS PATEL: You didn't shoot anybody, you didn't injure anybody?

GEN SHOKE: I think it's very difficult to tell. Once you shoot in fact in the battlefield you cannot say this one I've shot, this one I've missed and so forth. But yes, I fired some shots. As part of the assault team I fired some shots.

MS PATEL: Okay.

GEN SHOKE: I think maybe what needs to be clarified here, it was not a hunting expedition, it was really an assault so it's difficult to say what you shot like in a hunting expedition.

MS PATEL: Alright, can you tell, do you have any idea Mr Rasegatla who was involved in that incident as well, besides his involvement in the planning, can you tell us what else he did as regards this incident? What was his further involvement?

GEN SHOKE: He was also a part of the assault team as myself and I think ...(indistinct)

MS PATEL: Sorry, Sir, the last word, what did you say?

GEN SHOKE: And the late Marcus Matoung.

MS PATEL: Okay, then just for your information you know that in that incident that at least two people were killed and several injured?

GEN SHOKE: That's quite possible.

MS PATEL: And that they were both policemen, those who died, were policemen? Can I just ask, you say that these attacks were carried out at a time when you expected or when you least expected there to be members of the public at the police station, that is why raids were not carried out over the weekend?

GEN SHOKE: Exactly.

MS PATEL: Okay, were there any specific instructions that were given in respect of persons who were present at the police station who were clearly not police persons or was that accepted as part of the casualties that you were willing to accept?

GEN SHOKE: I think that's an unfortunate - this thing, there's no way in fact when you enter the vicinity of a target that you now separate or that you'll ask people as well are you a policeman or a civilian, but where really you see you can clearly identify in fact that this person is a civilian and is unarmed, you obviously you avoid it, like we did in Maroko. There was a lady that was deliberately avoided who was sitting at the gate.

MS PATEL: Yes, I confirm that information, Honourable Chairperson, she was sitting with the guard at the entrance I believe.

&#9;Did you report back to anybody after these incidents or was there no need to, what was the system?

GEN SHOKE: Yes, we used to send reports to the ANC.

MS PATEL: Was there anybody specific that you reported to?

GEN SHOKE: We used communication by means of dead letter box - DLB's.

MS PATEL: DLB's, okay. 

GEN SHOKE: Because as you aware that actually our presence by then was not supposed to be known.

MS PATEL Alright and who specifically was the communication addressed to?

GEN SHOKE: I think maybe General Nyanda could tell you better but the communication was addressed actually to the Transvaal Machinery outside, unless who will decipher that, or it was not my business really.

MS PATEL: Alright. Okay. Honourable Chairperson, if you will just grant me a moment? Thank you Honourable Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Thank you. Mr Berger, do you have any re-examination?

RE-EXAMINATION BY MR BERGER: Just very briefly, Chairperson.

&#9;General Shoke, the attack on the Mapobane Police Station. When was that?

GEN SHOKE: I think it was 1991/1992 I cannot remember quite well.

MR BERGER: Chairperson, I only have a comment remaining and that's in relation to what Ms Patel said about this hearing only dealing with Daveyton, Maroko and Orlando and that is that we're aware of the problems that Ms Patel had with notifying victims, but what we subsequently were told was that an advert was placed in relation to all of the operations in which the applicant and in particular General Shoke seeks amnesty today. And so we came to this hearing ready to deal with all of these incidents and it's going to be unfortunate if General Shoke and maybe General Nyanda have to come back again and repeat for - well in some cases a third time and other cases even more than that, the same evidence again. Particularly in those cases where there was no one killed or seriously injured. Strictly speaking, those applications could have been dealt with in chambers and I don't see why they can't be dealt with now.

CHAIRPERSON: I think on this aspect and subject to what I may hear from others, I think one must take a reasonably practical approach. You know, notices have been given out. Okay, the time might not have been as long as one would have wanted but we could perhaps hear all the evidence and if there is any reaction to any of the notices from any of the victims, we can deal with that as it comes and because there might be any reaction whatsoever in which event to come back just for the sake of coming back would be not only costly but also probably just a waste of time. But if there is reaction and some serious opposition then we can confront it and communicate with all the persons concerned and then take it as it comes. I think that that would probably be the best way to deal with it.

MR BERGER: We would be very happy with that kind of arrangement, yes. Thank you.

NO FURTHER QUESTIONS BY MR BERGER

JUDGE MOTATA: Could we at first hear Mr Motloung because he has mentioned that he represents about 9 victims and if he can identify the incidents mentioned by Ms Patel, it would take us further?

MR MOTLOUNG: Thank you, through you Mr Chairperson.

&#9;The list is as follows:

&#9;The first victim that I have consulted with is Mr Risimate Joseph Mgwanamya. He was injured in the 1981 Wonderboompoort incident.

&#9;The second one is Mr Samuel Nkosi who appears actually on behalf of his late father and it's worth mentioning that his late father did not die from the incident itself but died subsequently due to other causes but the incident relates to the 1979 Maroko Police Station incident.

&#9;The third one is Mr Sipho Zungu, he's a civilian that got injured when he went to report the case at the Orlando Police Station in 1979.

&#9;The fourth victim is Lena Msimango. She is a civilian who worked at the fast food outlet adjoining the Tshabalala Dry Cleaners. She was injured, that was in the incident in 1984.

&#9;The fifth victim is Mr Simon Ndawonde who was a trainee constable, student police officer.

CHAIRPERSON: Sorry, if you could just repeat that name please?

MR MOTLOUNG: I'm sorry. Simon Ndawonde, a trainee Constable at the Kladi Training College in Soweto. I was even asked to set the record straight that according to documents presented to us, this incident is said to have been during 1988. I'm told it actually happened on the 21st April 1987.

&#9;The sixth victim is Cyprian Khumalo, also a student at the same Kladi Training College, Soweto. Same dates.

&#9;The seventh one is Edward Moremi, a constable then at the Maroko Police Station in the 1979 incident. He got seriously injured during that attack.

&#9;The eighth victim is Peter Ngobeni, also a trainee constable at the Kladi Training College in 1987. Same dates earlier on referred to.

&#9;And the last victim is Christopher Matibula, also a trainee constable at the Kladi Training College. Same date. He was also injured, just like Peter Ngobeni.

&#9;And just to put the whole thing in context, Mr Chairperson, I was actually asked to be on standby in case victims needed legal representation and these nine that I've referred to are the ones that I have been able to consult with and I therefore would confidently state that I have instructions from these nine. That's all.

CHAIRPERSON: Thank you Mr Motloung. Mr Berger, have you finished your re-examination?

MR BERGER: I have, thank you Chairperson.

CHAIRPERSON: May I just ask my colleagues if they have any questions to put to General Shoke? Judge Motata, any questions?

JUDGE MOTATA: I've got none Chairperson, thank you.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: No questions, Mr Chairperson.

CHAIRPERSON: Yes thank you, General, that concludes your testimony.

WITNESS EXCUSED

NAME:&#9;&#9;MALAKOLE JOHANNES RASEGATLA

APPLICATION NO: AM7164/97

_____________________________________________________CHAIRPERSON: Mr Berger?

MR BERGER: Yes thank you Chairperson, I think we need to just swop seats. Mr Rasegatla can come and sit here and then we can then take his evidence. Mr Rasegatla will be taking an oath.

MALAKOLE JOHANNES RASEGATLA: (sworn states)

EXAMINATION BY MR BERGER: Thank you Chairperson.

&#9;Mr Rasegatla, is it correct that at present you are the Secretary in the Secretariat for Safety and Security, National?

MR RASEGATLA: That is correct.

MR BERGER: That has the rank of Deputy Director General, is that correct?

MR RASEGATLA: That is correct.

MR BERGER: Your application for amnesty appears in the bundle from page 37 to page 43, is that right?

MR RASEGATLA: That is right.

MR BERGER: And you are applying for amnesty only in respect of two attacks, the attack on the Orlando Police Station and the attack on the Booysens Police Station, is that right?

MR RASEGATLA: That is correct.

MR BERGER: At the time of - well let's first get some dates. When was the attack on the Orlando Police Station? Are you looking for the reference in General Shoke's application?

MR RASEGATLA: Yes.

MR BERGER: Okay.

MR RASEGATLA: Orlanda was '79.

MR BERGER: 1979? And the Booysens Police Station? Is that the one in 1980?

MR RASEGATLA: Correct.

MR BERGER: At that time 1979/1980, is it correct that you were a member of Umkhonto weSizwe?

MR RASEGATLA: That is correct.

MR BERGER: What was your rank?

MR RASEGATLA: We did not as so much operate in terms of rank but in terms of responsibility.

MR BERGER: Yes?

MR RASEGATLA: I was part and parcel of the Transvaal command, the Transvaal Urban command that was under General Nyanda.

MR BERGER: Now let's take the Orlando Police Station attack. At that time is it correct that you were based inside the country?

MR RASEGATLA: That is correct.

MR BERGER: What was your involvement in this attack?

MR RASEGATLA: My involvement was that of a participant and that of an overall Commander.

MR BERGER: How did it come that you were a Commander of this - in this attack?

MR RASEGATLA: I was the Commander because I was part and parcel of the Transvaal command that was externally based and now that I was inside the country at the time and part and parcel of this attack, I assumed overall command of the attack.

MR BERGER: Who else was involved in this attack?

MR RASEGATLA: It was General Shoke, the late Marcus Motloung and the late Moegarani ...(indistinct).

MR BERGER: Very briefly, can you describe how the attack was carried out?

MR RASEGATLA: First, reconnaissance was checked, the time that we decided to make this attack was chosen and it was around 1 and 12, late at night and that time was chosen because it was at that time that very, very few civilians appeared to be visiting the station. So the attack was then carried out around that time and it continued for about two weeks to make sure that indeed that was the case in terms of any other unintended consequences in the attack.

MR BERGER: When you say two weeks, that's two weeks for reconnaissance?

MR RASEGATLA: Yes.

MR BERGER: Not two weeks for the attack? Okay. Yes and then the actual attack?

MR RASEGATLA: The actual attack was carried in the following manner. There was one person who attacked from the rear and three attacked from the front of the police station.

MR BERGER: And what was used in the attack? Rifles, grenades, a combination?

MR RASEGATLA: It was a combination of rifles and grenades.

MR BERGER: And when we talk about rifles, what sort of rifles?

MR RASEGATLA: We are talking of AK47.

MR BERGER: The Booysens Police Station attack, 1980, again you say that you were personally involved?

MR RASEGATLA: That is correct.

MR BERGER: With who else?

MR RASEGATLA: With General Shoke, the late Marcus Matoung, the late Hlongwane and the late Gordon Digegu.

MR BERGER: What sort of reconnaissance was done there?

MR RASEGATLA: Just like with Orlando, the reconnaissance took about two weeks to try and choose a time, the most appropriate time to do the attack and also there it was found that around midnight that would be the most appropriate time and it was done at that time.

MR BERGER: The method of attack, did it differ significantly from the actual attack on Orlando?

MR RASEGATLA: It did not differ much except that with Booysens there was the use of another weapon, a rocket launcher.

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

NO FURTHER QUESTIONS BY MR BERGER

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

MR MOTLOUNG: Thank you Mr Chairperson. Perhaps one aspect. I'm sorry, I realise it's in respect of another person. Thank you Chairperson, I have no questions.

NO QUESTIONS BY MR MOTLOUNG

CHAIRPERSON: Thank you. Mr Wagener, any questions?

MR WAGENER: No Chairperson, I'm not involved.

NO QUESTIONS BY MR WAGENER

CHAIRPERSON: Thank you. Ms Patel, any questions?

CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson.

&#9;Mr Rasegatla, in the Orlando matter or that incident, how were you armed? What weapons did you have?

MR RASEGATLA: I was using AK47.

MS PATEL: And you say that in respect of the attack itself the attack was carried out from the rear. Can you tell us more specifically ...(intervention)

CHAIRPERSON: He said one of the cadres attacked from the rear and three from the front.

MS PATEL: Thank you Honourable Chairperson, I missed the second bit.

&#9;What specifically did you do at the police station?

MR RASEGATLA: We approached it from the front, those that were approaching from the front and then when we were right there in front we fired into the charge office there and also at the gate where there were some police officers and from the rear, the ones who were doing that from the rear, used handgrenades.

MS PATEL: Alright. And in the Booysens attack? How were you armed?

MR RASEGATLA: I was armed with AK47.

MS PATEL: Okay and what exactly did you do then?

MR RASEGATLA: We fired into the police station.

MS PATEL: Into the charge office?

MR RASEGATLA: Yes.

MS PATEL: Did you know exactly who was in the charge office at the time or did you fire from outside?

MR RASEGATLA: We fired from outside.

MS PATEL: Alright, thank you Honourable Chairperson.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Mr Berger, any re-examination?

MR BERGER: No thank you Chairperson.

NO RE-EXAMINATION BY MR BERGER

CHAIRPERSON: Judge Motata, any questions?

JUDGE MOTATA: No thank you Chairperson.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: I've got no questions Chairperson.

CHAIRPERSON: Just one brief question. These attacks on police stations, were they exclusively attacks or did you also go with the secondary objective of getting firearms?

MR RASEGATLA: They were exclusively attacks.

CHAIRPERSON: You didn't in fact take any firearms etc during or after the attack?

MR RASEGATLA: No.

CHAIRPERSON: Yes, thank you. Thank you, that concludes your testimony. You may stand down.

WITNESS EXCUSED

CHAIRPERSON: Mr Berger, do you have any other witnesses you are calling?

MR BERGER: No further witnesses, thank you Chairperson.

CHAIRPERSON: Mr Motloung, are you calling any witnesses?

MR MOTLOUNG: Mr Chairperson, I am calling no witnesses.

CHAIRPERSON: Thank you. Mr Wagener, are you calling anybody?

MR WAGENER: Chairperson no, except that I will request you now or later that at the end of these proceedings that my client be seen as a victim and that his particulars ...(intervention)

CHAIRPERSON: Yes, I will get to that now. Ms Patel, I just want to establish whether there's any more evidence at this stage now? Ms Patel, will you be calling any witnesses?

MS PATEL: No thank you, Honourable Chairperson.

MR BERGER: Mr Motloung and Mr Wagener, if you could make available in the list form the names of the people you're representing with an address at which they could be contacted or even preferably as well a telephone number and if those could be handed to Ms Patel and then we, as you are aware, any persons that we are of the opinion who are victims, we will refer to the Committee on reparations and we will do that. Thank you.

&#9;Right, so that concludes the leading of evidence at this hearing. We're now left with the making of submissions and I'll call upon Mr Berger.

MR BERGER IN ARGUMENT: Thank you Chairperson.

&#9;Chairperson, at the start of today's proceedings, Mr Wagener indicated that he was going to take a point I think only in relation to General Nyanda's application, if I understood him correctly.

CHAIRPERSON: Do you think it would be practical then to hear Mr Wagener first on that point and then you go and respond?

MR BERGER: Yes I do, thank you.

CHAIRPERSON: Mr Wagener?

MR WAGENER IN ARGUMENT: Thank you Chairperson.

&#9;May I at the outset refer you to another incident that took place albeit before another amnesty Panel that that would form in my view a point of departure in reaching a decision herein? A client of mine whom I think you all know, Brigadier Willem Schoon, served in the police force for some 40 years and retired in 1989. Seven years later he was asked to remember and compile an amnesty application because he was advised and my submission is properly so that he should specify incidents for which he applied for amnesty and in the end he did so and he filed a comprehensive amnesty application with some 20 odd incidents. 

&#9;During the course of 1999, a matter was put before an amnesty Panel where certain of his ex-colleagues applied for amnesty implicating him and when this was brought to his attention, he remembered that he was in fact involved in that incident as well. As we all know, the last cut-off date for filing of amnesty applications was the 30 September 1997. So the way we read the Act was that it was too late for him to apply for this incident. We did, however, bring a full application before that Panel for him to be accepted as an amnesty applicant. That was during May 199... in Johannesburg in what was referred to as the Schoon Hearings, the Panel consisting of Advocate Potgieter, Advocate de Jager and I think Advocate Gcabashe. In the end, a detailed judgment was given. Unfortunately, Chairperson, I haven't got the transcription now but I will try and get it for you.

CHAIRPERSON: It's alright, I'm sure we'll be able to find it in our Cape Town offices because they do keep all the decisions there. You don't have the amnesty number, do you?

MR WAGENER: Chairperson, it was in connection with an incident called MK George and MK Brown. The incident was referred to by that name. It was two people shot and killed in Swaziland. I'm not sure of the exact date but it was referred to as MK George, MK Brown.

&#9;The judgment given by that Panel was that they are not, or they don't have any discretion in allowing a late application for amnesty and that they are bound by the specific wording of the Act. And although the bona fides of Brigadier Schoon, he had just forgotten about this one incident, that was all accepted, but in the end, as I've said, the Act does not allow for any discretion in this regard and he was denied to be seen as an applicant for amnesty in that incident as well. So at present - well the consequences will follow for itself.

&#9;Chairperson, we also had the infamous experience of the amnesty applications of the so-called ANC 37, of which I think we're all well aware of, where applications were filed in the words of the present application that you have in pages, I think 1 to 5 or 6 of this bundle, where amnesty was granted to them and on the review in the High Court in Cape Town a judgment was given. I think it was Justice Conradie, I'm not sure but I also have it somewhere, not here, stating specifically that amnesty could never have been granted because the present process does not allow for blanket amnesty for, if I may call it, unspecified amnesty. Because clearly that would make a mockery of the system that we're busy with here in terms of the wording of the present process.

&#9;Now if one turns to page 5 of the bundle before you, that is the application of General Nyanda filed before the final cut-off date and it is clear, Mr Chairperson, on a reading of page 5 of the bundle, he doesn't know for what he is asking amnesty for. He merely says "acts unknown". Unless, unless other people would come around in future some time and maybe say something. But this, in my submission Chairperson, is nothing else than a blanket application for amnesty or a general application which was set by the High Court not to be allowed in terms of our present process. Even if one tries to read the last part of that page, the same page 5, where reference is made to the submission of the ANC, on a question to General Nyanda, it is clear that he did not intend to apply for amnesty as is required by this Act, stating his own involvement in each and every incident to these odd few hundred incidents.

&#9;Now much the same happened with General Nyanda as what happened with Brigadier Schoon. In some way or another the General's memory was jolted, seems as if it was sometime in 1999 and then he could remember in total, I think 44 incidents, which you find in the bundle on pages 14 onwards.

&#9;Chairperson, the way and I know this is not a precedent system as within our courts of law, but the way I understood the judgment of the other Panel I referred to, it seems to make logic sense in terms of the strict wording of our Act, how unfortunate it may be for this specific applicant, that you have no discretion to grant late applications.

CHAIRPERSON: Just on that and I want to get your view on this and I'm sure Mr Berger will also give us his view, Section 19 it says okay, we receive applications, the Committee receives applications, it says:

&#9;"19.2 The Committee shall investigate the application and make such enquiries as it may deem necessary."

Then in sub-section 3:

&#9;"The Committee may afford the applicant.."

this is 3.2:

&#9;"...afford the applicant the opportunity to make a further submission"

now that section 19.3.2, does that - there's nothing to indicate that that must be done within the cut-off date. In fact I'm sure that if one had to give it a reasonable interpretation, one would assume that after the investigation, most of the investigations would be completed after the cut-off date, I mean seven thousand something applications were received and would take a lot of time. Then they say okay, we've received your application form, it's vague, kindly be more specific. We ask you the following further particulars 1, 2, 3, 4, 5. Then comes the answer. In which you receive then specific incidents etc. What would you say to that? Would those be excluded because you see, I'm not trying to find ways out but I don't know what the application of Brigadier Schoon said, you know, he might have said look, I apply for amnesty in respect of the following incidents 1 to 22. No catch, dragnet clause as it were to keep it open because he might have forgotten. Then we get to an actual hearing situation and he says okay, I want to apply for more. I don't know if there's a difference, if one can distinguish between the application of this section 19.3.2 and what happened in Brigadier Schoon's matter because I've got no idea what happened in his matter. But what's your view on this section 19.3.2?

MR WAGENER: Chairperson, maybe firstly dealing with the last part, Brigadier Schoon said in his application his career lasted 40 odd years, he can't remember everything. He tried to the best of his ability to remember what he could and then he went along and specified 20 or what incidents. Now should one allow, what you refer to as a dragnet situation, then he could have done much better by not trying to be open and frank and making a full disclosure in his application. But to his disadvantage then, he tried to be frank and played open cards, although he said and I'm also Mr Chairperson, aware of a number of other clients who said in their applications "I tried to the best of my ability to remember". So should one allow now for this late inclusion by the back door, I'm sure there will be a large number of other people interested also, a large number of my own clients who will be very much interested to bring what I had advised them would be late applications and what another Committee has found to be a late application .

&#9;Now turning to this section that you referred me to, section 19, a few remarks, Chairperson. In the first instance, section 18 says:

&#9;"a person who wishes to apply for amnesty in respect of any act, omission of offence"

My first submission is that General Nyanda didn't even cross that hurdle in his first application. So section 19 doesn't even enter the frame here in his case because he never filed an application where he applied for amnesty in respect of any act, omission of offence as required by section 18.

&#9; One can even take this argument further. The section says that he should do so in the prescribed form. The prescribed form specifically asks for specific incidents and the involvement, the specific involvement of the applicant there which the General also failed to do. So my submission to you is that section 19 doesn't even enter the frame here in his instance and that section 19 was clearly intended as we've seen in many, many other applications, where an applicant comes along in his initial application and saying "I asked for amnesty for..." and he specifies the incident but he only gives one or two sentences or paragraphs. Clearly this was what was intended with section 19.1 that you referred me to where the investigation unit or the Amnesty Committee can then come along and say "please, you haven't given us enough information, we would require the following further particulars." My submission is, that is what this process that you referred me to was intended for.

CHAIRPERSON: Yes I know and I'll have to go to the documents to refresh my memory etc., but I know that after the 37 applications were set aside by the Cape High Court on review that the Committee asked the applicants concerned for further information relating to specific offences and then after some time a further decision was written where there hadn't been any response and those applications were ultimately refused. So are you saying it was therefore wrong to have requested them for further information? I don't even know and I can't recall, this is why I say I'll have to check the documents whether the Court in its judgment made some reference to setting aside the documents and giving the applicants some sort of further opportunity to be more specific and I know there were two categories of applicants. It was in that 37.

MR WAGENER: Chairperson, as far as my memory serves me, that aspect was not dealt with in the judgment of the High Court. I may be wrong but you are correct that afterwards I think there were repeated requests from the part of the Amnesty Committee even begging for particulars which was apparently never given. But yes, my interpretation of these sections is, with all respect, that one can't even go to section 19 in an instance like this, you must first cross the hurdle of 18 which this applicant in my submission has failed to do.

JUDGE MOTATA: I think in respect of the 37, the Court never made a decision and said these are not applications per se but referred them back to the Amnesty Committee to deal with them further and after a request for further particulars, in respect of which particular incidents were they applying for, it transpired that it was just a general morality statement that they accept responsibility for actions of their operatives even though they know of no specific incident. 

&#9;But I want to return to this and say - or just for completeness, that it was not the whole 37 that were eventually refused amnesty but just part of them, I can't remember the actual number because a sub-committee dealt with that in the Amnesty Committee. But here the Act, if I'm not mistaken, it would be Section 30, says after investigation, the Commission, a Committee or sub-Committee, if they come with such information and I want to say to you help me, because I'm referring to that and coming back to the further particulars which I don't know when they were requested but we just had the further particulars before us, would that not cover that situation? I don't know. My mind is not made up.

MR WAGENER: Mr Chairperson, maybe I shall proceed with my argument and I will try and cover that specific issue. If I do forget in the end please remind me, it's not evasive tactics.

&#9;So the point I've made, Mr Chairperson, in my submission, this application before you by General Nyanda is too late and therefore he can never satisfy you as he should that he has complied with section 20.1.(a) of your Act. 

&#9;The next point, Mr Chairperson, is that even should you decide that these particulars or that this application is not too late, the question remains for what should General Nyanda be given amnesty? As far as I remember, I may be wrong but as far as I remember this very Panel sat in the matter of Aboobaker Ismail or Rashied as he was called. I have his application here with me, Mr Chairperson. You heard his evidence where he said that he is asking for amnesty for operations committed by his special operations unit. We heard evidence today that General Nyanda never worked with special operations but he is telling you or he is trying to tell you that these incidents were committed by his operatives. Can you ever be satisfied, Mr Chairperson, before granting amnesty to General Nyanda that he was at all involved in any of these incidents? He himself does not even know whether he was involved. He said so this morning. He's not sure. Once again, Mr Chairperson, my submission is, in granting amnesty on that basis would (i) be of a general blanket nature and (ii) it will make a mockery of our system and (iii) it will allow for large numbers of other people to come around and say well, now my memory has also been jolted and poor Brigadier Schoon was given a raw deal, he should have been allowed to ask for amnesty in his case.

&#9;Mr Chairperson, if I may be allowed, I think the correct way would be as what the original amnesty did in the Cronje and his four colleagues in that matter where specifically, if I can remember, Hechter and Van Vuuren, you should have the judgments in this regard, where they also applied for amnesty in respect of what they said numerous acts of violence in certain townships around Pretoria without any specification of dates or locality or anything. And in the end, Mr Chairperson, the original Amnesty Committee decided that on that kind of evidence, or lack of evidence, they were unable to grant amnesty, but they said to those applicants should other applicants arrive in future and ask for amnesty in more specific terms and specifically implicate them there at the scene, they would be allowed to form part of those applications and if that Committee is then satisfied of the facts of each incident and that these applicants were in fact there on the scene and they obviously comply for the other provisions, they can be granted amnesty or not.

&#9;Mr Chairperson, my submission is that is the correct way to go with applications like this or else we will end in a situation that I'm not even sure should you now grant General Nyanda amnesty on what you heard today, what you are going to say? What will be the proclamation in the Government Gazette? For what will he receive amnesty? He doesn't even know himself. So my argument, in short then Mr Chairperson, is that this application on what you've heard today, you're not in a position and you can never be satisfied as is required in section 20 to grant amnesty and the correct approach should be what was done in the Cronje and others matter and thereby not granting amnesty in any incident, but should there be more detailed evidence by other operatives in future, spelling out exactly what they did and how they did it and what the role of the General was, then he can be part of that application and if necessary be granted amnesty then. Thank you Mr Chairperson, except - sorry Mr Chairperson, I'm getting old. May I just get that question again, that your colleague Judge Motata asked?

JUDGE MOTATA: The question is that I said if we have regard to section 30 and where the Act empowers us to investigate and we thereafter, after investigation, request further particulars, but what I am not certain of is when those - that request was made and such request is further particulars are furnished and some incidents, well it would depend largely on evidence adduced that if such incidents are furnished, would we say such an application still falls outside the ambit or to use your words that we've got no application before us?

MR WAGENER: Mr Chairperson, yes thank you. The way I understood the argument and the ruling of Brigadier Schoon, it was short and sweet that should an applicant bring to an Amnesty Committee a new matter, a new incident, a new act, for which he wants amnesty and he does so after the last cut-off date, he is not allowed to do that and that the Amnesty Committee has got no discretion to allow it. But of course your brother, Judge Motata, is correct that you can always ask for further particulars, but again, in the sense that I referred to earlier of section 19, where an applicant refers to a specific incident in his application but he does not provide much detail. Of course the Committee can then ask for further particulars before the hearing or at any stage. But the argument remains that is in respect of that specific incident that was mentioned in the initial application before the cut-off date?

CHAIRPERSON: It's quite clear that - well, let's just go back to the 37 applications that there were applications before the Committee, even if they didn't relate to anything specific, they were in fact applications. I don't think one in fact can say they weren't applications because they didn't specify any act. Whether they were applications that fell to be refused because of lack of detail, that's another question, but they were applications. Do you agree with that or not?

The application on page 4 onwards of General Nyanda is in fact an application?

MR WAGENER: Chairperson, I would respond as follows. Those 37 so-called applications were dealt with in chambers. That Committee that decided thereon, they heard no argument in this specific regard ...(intervention)

CHAIRPERSON: What I'm asking you is, they were applications? They fell to be refused for lack of detail or lack of information but they were applications. In other words, the Committee was justified in refusing them.

MR WAGENER: That is what happened in that instance, Chairperson, had I been there I would have argued that they couldn't even entertain the applications.

CHAIRPERSON: So we couldn't even refuse them, you were saying, that they just not be dealt with as an application?

MR WAGENER: At most the Committee should have said that those applicants have not complied with section 21(a) with the formal requirements.

CHAIRPERSON: Yes, because also one other aspect and I'm just mentioning it, one has also got to take a look at the spirit of the Act, what the intentions are of the legislature, the reconciliation, nation building, etc. and I know, rightly or wrongly, but personally involved in matters where the application hasn't been properly attested to and etc., that sort of thing. A lot of the applications, applicants who make application aren't literate and the prescribed form wasn't properly followed, various reasons. And then even at a hearing stage, we condoned that sort of thing as long as the person confirms under oath that it's correct etc. It's not a strict technical line that is followed and I don't think a strict technical line should be followed, as long as one doesn't arrive at an injustice or an undue prejudice, one can be a little bit broadminded.

MR WAGENER: Chairperson, thank you. No, I accept every word that you've said and I must again stress this, I accept the bona fides of General Nyanda without reservation. He is in a very difficult position, the same as many other applicants or prospective applicants are in a sense that we sit with an amnesty process with an Act that it is worded in the way it is as compared to the previous indemnity Acts of 1990 and 1992 where individuals could get indemnity on the basis of a category without specifying even. It was possible that the State President could grant indemnity in that way but we sit with this Act and I accept every word that you say regarding the objectives of the Act and reconciliation and fairness and all that. But once again, Mr Chairperson, then the question would be, can I bring another 100 people now to say they want to file applications for amnesty in the spirit of reconciliation and fairness, because the way I read the Act, you can't allow it, whether fair or not, whether in a spirit of reconciliation or not, but if you do allow this and provide us with a detailed ruling, it may be of - it can be used in future as well, as long as we realise what this is all about? 

&#9;But again, Mr Chairperson, no I accept what you say, it's only the way I read the Act and if I'm wrong, I'm wrong but that's the way I read the Act that you've got no discretion on this specific issue of the cut-off date and that is why when your other Panel ruled in the matter of Brigadier Schoon, I for one, although reluctantly, I accepted that as correct in terms of the Act.

CHAIRPERSON: Thank you Mr Wagener. Mr Berger, do you have any response?

MR BERGER IN ARGUMENT: Thank you Chairperson, I do. If I could start off where my learned friend ended? I see he has a big smile on his face because he is anticipating bringing a 100 or more people to apply for amnesty in the spirit of reconciliation. But there are just some questions one needs to ask about whether those 100 or more would be entitled to apply for amnesty and that is firstly, have they made any applications for amnesty?

CHAIRPERSON: I think it's quite clear, if somebody hasn't submitted the form in any form before the 30 September 1997, he's out unless he can show some huge ground for condonation which only a Court would be able to condone, not us. We don't have that authority in the statute. 

CHAIRPERSON: Sorry, there has been an application form in any sense submitted timeously.

MR BERGER: That is my point, Chairperson, that probably knocks out about 98 of his potential applicants.

&#9;And then the second question is, in the application, if there was such an application for amnesty, was there any reference to a submission by the National Party in which they detailed all the attacks that they were responsible for? I doubt it. The unfortunate point, Chairperson, with referring to other amnesty applications and the amnesty application of Brigadier Schoon is the principles are there but are the facts the same? Are those cases where a specific number of incidents were applied for and then a further incident was added which was never even referred to or alluded to. 

&#9;General Nyanda's application, Chairperson, and apropos of what you said about the intention of the legislature, General Nyanda's application makes it quite clear what he is applying for. We all know the history of the legislation and we all know, with respect, what the legislation was intended to effect. It was intended that people who were involved in the conflicts of the past could come forward, disclose what their participation was, and in return for that be granted amnesty.

&#9;Now General Nyanda says at page 4 of his application that the capacity in which he served the African National Congress was as a Commander of MK. Now anybody, with respect, who knows anything about the history of our country would know what Commanders of MK were involved in. They were involved in waging a struggle against the apartheid regime, a struggle which involved loss of life and attacks on establishments and on personnel. 

&#9;Then in paragraph 9(a) at page 5, he is asked to specify the individual acts and he says "the acts are unknown to me unless stated otherwise by individual amnesty applicants". But my learned friend says even if one reads paragraph 4 below, it's not clear what General Nyanda is referring to. With respect, it's quite clear what General Nyanda is referring to. He says:

&#9;"As declared in the ANC Submissions of the 22 August 1996"

It's this document,

&#9;"and the operational documents, the additional documents on the 12th May 1997"

which are these submissions.

&#9;So General Nyanda is saying there were a whole host of operations, "I don't know all of them", he's upfront to say "I don't know them but I want to apply for them because of my position of a Commander in MK." If General Nyanda is asked what specific bomb did you place, well then he says "no, I didn't place a bomb, I was in the command structure, I was the person giving the instructions." Those are the acts for which he seeks amnesty, the acts, the commands, the instructions that he gave ...(intervention)

CHAIRPERSON: And sometimes those instructions weren't for specific operations, they would be to a unit or a unit Commander to say okay, infiltrate and do your stuff within the guidelines sort of thing.

MR BERGER: Indeed and Chairperson, for General Nyanda to catalogue all of those acts would be almost impossible. We're talking about a struggle which was waged over decades. 

CHAIRPERSON: Do you think whatever - I'm just asking you this question as it comes to my mind - that amnesty could properly be granted in the following form. The Committee therefore grants amnesty in respect of - and then 1, 2, 3, 4, 5, 6 - 22 - whatever amount of specific incidents actually described, date etc. and also grants amnesty to the applicant in respect of any other offences of which he is unaware that he might of been involved in. Would that be - I'm just asking whether that would be a proper decision?

MR BERGER: The second part, not amnesty in respect of any offences of which he might be unaware but amnesty in respect of all other acts committed by him as the Commander of the Transvaal Urban Machinery which resulted in the injury to or the deaths of people unknown to him.

CHAIRPERSON: Yes.

MR BERGER: That would be proper because it's not - amnesty doesn't have to be granted in respect of an offence but amnesty can also be granted in respect of acts.

CHAIRPERSON: And acts might not necessarily be a crime or an offence?

MR BERGER: No.

CHAIRPERSON: Well it might be an offence in the sense that the act must have some sort of liability attached to it, he must be liable to somebody for the act, it can't be - we're not going to grant amnesty to somebody because he drove to work in the morning and had an accident, I mean that's ridiculous because there's no liability at all, but any act that may have resulted in harm of any nature to any person in respect of which the applicant may be liable either civilly or criminally. 

MR BERGER: In fact, Chairperson, the Act is clear that it's section 20.2, it's says in this Act:

&#9;"unless the context otherwise indicates, an act associated with a political objective means any act or omission which constitutes an offence or a delict."

So the act must constitute an offence or a delict, but as General Nyanda says, he is in the command structure and he is giving orders which have as their ultimate end an attack on a police station or an attack on administration offices or the death of a policeman and all of those orders can eventually be traced back to him and then he is saying in respect of those orders, instructions, advices which I gave and which ultimately caused the death of people or injury to people, it's those acts which I gave in my position as Commander of the Transvaal Urban Machinery for which I seek amnesty.

CHAIRPERSON: And it might not only be only in respect of orders given but what about the situation where there's not a specific order given to carry out specific acts but then there's a report back later that that act was carried out?

MR BERGER: And then by doing nothing in the sense of not reporting it to the police, yes then he would be guilty as an accomplice or worse and as my attorney points out, not only for that specific offence, but all the acts that General Nyanda did would have been sufficient to qualify for the offence of treason or as it was the statutory offence at that stage of terrorism. All of those individual acts, individually and accumulatively would have attracted criminal liability and delictual liability, even now.

&#9;But Chairperson, it's not up in the air as my learned friend would have it. The reference in 9a(iv) to the submissions of the ANC, includes a reference to structures of the ANC, it sets out at page 36 of the document dated 12 May 1997 all the ANC structures, how the - for example at page 36, how the Transvaal Urban Machinery fitted into the entire structure of the ANC and then following, the structures are actually set out and the people who occupied certain positions in those structures are mentioned. For example at page 38 and this is an annexure to the further particulars, but at page 38 it deals, paragraph 3.8 deals with MK operations and regional structures during the period 1976 to 1980. 3.8.1, the Eastern Front, it says:

&#9;"Four machineries or military structures operated from 

&#9;the Eastern Front (Maputo via Swaziland).

and under the Transvaal Urban Machinery it says:

&#9;"The Transvaal command consisted of Selaello Ramusi, Siphiwe Nyanda, Nsi Manye and Solly Shoke."

So already the reference to this document makes it clear exactly what role General Nyanda performed during the period - here we are - 1976 to 1980. But it goes on. 1980 to 1983 at page 43.

CHAIRPERSON: I think it takes each period, it goes right through.

MR BERGER: Indeed, indeed.

CHAIRPERSON: Up to 1994, and in fact 1991.

MR BERGER: Yes and wherever General Nyanda participated, his name appears.

&#9;Then the operations that were carried out, all of the operations, MK operations, are listed from page 72 through to page 101. Now my learned friend says well, clearly General Nyanda didn't intend to apply for amnesty for all these hundreds of operations. No, that's correct but each operations specifies where it was carried out whether it was in Kagiso, whether it was in Mamelodi, whether it was in Germiston, wherever and anyone who reads these documents will be able to - it's not difficult - to discern what were the operations that the Transvaal Urban Machinery carried out, what were the areas of operation that they carried out and what operations is General Nyanda referring to in this short note at page 5.

CHAIRPERSON: That's what he said in his evidence that he has done to come with this list on page 14 but Mr Wagener says, well how do we know that some of those aren't special ops operations for which he specifically has testified that he was not involved in but Rashied Ismail was?

MR BERGER: Well Mr Wagener hasn't - I thought he would, he promised he would deal with General - or he is no longer a General - Mr Aboobaker - Mr Ismail's application to show us where the overlap is.

MR WAGENER: Chairperson, sorry, I forgot. If I may be allowed and it may assist my learned friend, I will do so right now if it is an opportune moment? Sorry, I forgot, I can give you the incidents where there's the overlapping where he says it was special ops operations and this General says it was Transvaal Urban.

CHAIRPERSON: You may as well then Mr Berger can deal with it now.

MR WAGENER Mr Chairperson, what I've tried ...(intervention)

CHAIRPERSON: If you turn to page 14?

MR WAGENER: Yes, what I've found on a quick comparison of the two applications on page 15 of your bundle, the items are numbered in the extreme left hand column. I would go by those numbers. It's item number 10, 11, 13, 16 and then over to page 16, items number 28, 34 and 36. Sorry, I nearly forgot, I wanted to do this.

CHAIRPERSON: Yes, I'll be in a position to be able to distinguish between special ops operations, because I remember in that Ismail application there was a list put up as well so I can verify that.

MR WAGENER: Yes it was an annexure to Mr Ismail's application, a long list of incidents.

CHAIRPERSON: Yes that's right and a lot of them in the old Transvaal, the majority of them in the old Transvaal. 

MR BERGER: Well the difficulty, Chairperson, is that my learned friend should have canvassed this with General Nyanda, it's not good for me to say whether it was a special ops operation or a Transvaal Urban Machinery operation and what General Nyanda did say was that it's possible that some of the operations are not Transvaal Urban Machinery operations.

CHAIRPERSON: Yes, that's I was going to say, I think on his evidence, that General Nyanda wasn't emphatic that these were them all, he did say that they sat down and it was a difficult process but this is what they believe were the TUM's operations so if some of them are found to be special ops then one can find that they're not TUM.

MR BERGER: Well indeed, if they were special operations then so be it, then there is no need to apply for amnesty for it and there's no civil or criminal liabilities.

CHAIRPERSON: Well just on that, while we're talking about that, the specific items, if one takes a look at General Shoke's list, that's on page 28, Uncle Toms and Watloo, that's item number 5 and 8, they don't seem to appear in General Nyanda's list unless I'm mistaken and unless they're described under some different sort of name or something.

MR BERGER: Chairperson, all I can say is that is what General Nyanda said, that there were other people operating and there may well be operations which were carried out which would not fall under Transvaal Urban Machinery.

CHAIRPERSON: Those two would be an example of two that he missed.

MR BERGER: Indeed but the interesting thing of course is that in neither of these cases was there a death or injury and so these are not gross violations of human rights, they're not - actually they are neither here nor there.

CHAIRPERSON: But on your argument, you're saying that the General should still be granted amnesty in respect of them?

MR BERGER: Yes I am, but then Chairperson, one must look at -now bearing in mind that General Nyanda as a Commander of MK comes forward and makes application and the intention clearly is to apply for all acts in which he bore the ultimate responsibility. In other words, he says I'm going to apply for all acts which constituted offences or delicts which were carried out whilst I was in command and he says have a look at what my organisation has put together because I'm responsible for a certain sector.

&#9;Then we've got to look at the Act. Section 18 says you must apply for amnesty in the prescribed form. My learned friend quotes a particular decision of the Amnesty Committee, Mr Sibanyoni will remember the weeks we spent in Boipatong where the original amnesty applications were not even completed, not even attested to by the applicants. In fact the attorneys filled out the forms, they were largely blank, the paragraphs, paragraph 9 in particular was not filled in and there was reference. The only thing was that there was a reference to the Supreme Court, as it then was, case, criminal case in which 17 people were ultimately convicted.

CHAIRPERSON: I've done an application, I think it was in Natal somewhere, KwaZulu Natal where the same thing happened, it was completed on the final day before the cut-off by the attorney and it just said ITBS, you know, across the pages and it was information to be supplied.

MR BERGER: The case that was referred to was the criminal case where all the applicants denied their involvement and said that they hadn't done anything so no acts were disclosed at all and Judge Ngobo and the Committee said we've got to take a robust approach, we've got to look at what was the intention when the application was lodged. 

CHAIRPERSON: Can we distinguish between cases where the applicant is actually involved in the physical commission of crimes and offences of gross human rights violation and applicants, who like the General, are removed to a large extent from that or are in a management position away from the action on the ground. In other words, for an operative to come and say look, I operated in that region for six years and in his application well may now have shot several dozen people in a number of incidents - full stop, I now apply for amnesty. Is that different from somebody saying look, I was in control, we gave instructions, people went out, I don't know what they did but I accept responsibility if they acted in accordance with orders. I think there might be a difference. In other words, if somebody were to be granted application for murdering somebody, actually murdering, shooting somebody in cold blood without that being specified, who the deceased was, where - it might be different from somebody who is giving orders because as you said he is applying - the act here is the giving of the order rather than the actual commission of the offence.

MR BERGER: In fact, Chairperson, when one looks at the intention of the legislature, one might pose the question, could it have been the intention of the legislature in 1995 to deny amnesty to an MK Commander who says "I was in this position for a number of years, I gave instructions which ultimately resulted in the deaths of people, I cannot recall all of those instructions but I want to come forward and tell you whatever I know and apply for amnesty." Could it have been the intention of the legislature in 1995 to say such a person would not be entitled to amnesty? I submit not. But the Act makes it clear in Section 19, the act says that when the Committee receives an application for amnesty, the application can be returned and the individual can be told no, you must still fill out that, you must fill out that, does it mean that no application has been received once it's been returned and submission or - so you can return the application or request the applicant to provide such further particulars as it may be necessary. So the Amnesty Committee has two options, either send it back or ask for further particulars. Thereafter there is an investigation in Section 19.2 and after the investigation a decision can be reached whether or not this is an act which involves a gross violation of human rights and if so, it's held in chambers and if not, then we come to sub-section 4 which says if an application has not been dealt with in terms of sub-section 3, the Committee shall conduct a hearing as contemplated. But before the decision is taken to conduct a hearing, there's the application, there's the request for further particulars, there's the further particulars and in fact, what I left out, Chairperson, there is also in 19.3(a)(ii) an opportunity which is afforded to the applicant to make a further submission and all of that is taken into account before the decision is taken to conduct a hearing or whether it should be dealt with in chambers.

CHAIRPERSON: Obviously there had to be some form of application lodged prior to the cut-off date?

MR BERGER: Absolutely.

CHAIRPERSON: For that - well Mr Wagener has argued differently but if one got an application for the first time from an applicant today, clearly we don't have the power to do anything.

MR BERGER: No, then it's too late.

CHAIRPERSON: And even we got an application a day late.

MR BERGER: It's too late.

CHAIRPERSON: It's too late and we don't have any power to accept it.

JUDGE MOTATA: But the tenor of Mr Wagener's argument is an application is received on the 10th May and an applicant says look what we would be saying in future the 12th May and those would be the acts I'm applying for, acts which are determined at a later date. Would that constitute an application contemplated by the Act?

MR BERGER: No Judge, if a document doesn't exist at a time when reference is made to it, well then it's not ...(intervention)

CHAIRPERSON: I don't think that document could have been compiled on the 11th and submitted on the 12th.

MR BERGER: Well that's my point, yes. As General Nyanda has explained, he was privy to documents which the ANC was compiling for presentation on the 12th May 1997, this document couldn't have been conceived in two days, in one day actually for submission on the 12th and clearly it involved a process of back and forth and as it says, reference was to newspaper records and so on. So it is presented on the 12th May 1997 but it's in existence long before then. It must be, because otherwise if it only comes into existence on the 12th May 1997 then how ...(intervention)

CHAIRPERSON: Never have been able to guessed the date.

MR BERGER: Indeed yes. So one then has to make sense or give some meaning as to what was General Nyanda referring to when he said the nature and particulars are set out in a document. Clearly he is referring to something, it's not like an individual who applies for amnesty and says whatever may pop up, pops up.

&#9;Chairperson, about the judgment in the Schoon application I can't comment because I've never seen it. Perhaps we can make some sort of arrangement to get you a copy of it, Mr Berger and also - would you require one as well, Mr Wagener? You'd require one? I will be - personally I will be in Cape Town next week so I will extract that and get copies to you and then if you wish to supplement whatever you say here you can do so but I'll do that.

MR BERGER: Chairperson, if we could also supplement with reference to the application of the ...(intervention)

CHAIRPERSON: Hechter and - what was the other one? Hechter and Van Vuuren, is that the other one?

MR BERGER: No, I was referring more to the ANC 37.

CHAIRPERSON: The decision, the Court decision?

MR BERGER: No, no the Court decision has been reported but if you can just supplement argument on that as well when we hand in supplementary heads if we could just ...(intervention)

CHAIRPERSON: Yes, that decision I can get because I was involved in the second decision on that one, not the first decision but after the Court decision.

&#9;Mr Berger, I think what we'll do now is, I think you can carry on with your argument here but all deal with the actual applications and then Mr Wagener can reply to both, the point that he has taken as well as anything you might say on the actual applications that we've heard today, besides the points taken by Mr ...(inaudible)

MR BERGER: Chairperson, I think that the point taken by Mr Wagener is really the only point because as far as the rest is concerned, it's a question of were these acts, acts associated with a political objective? I submit there can be no doubt in respect of any of the three applicants that that is so and have the applicants made full disclosure? Well to the best of their knowledge they have told the Committee what they know, what they can remember. There's be no suggestion by anyone here today that any of the applicants have held back on any information. &#9;The acts took place a long time ago and obviously that must be taken into account as well.

&#9;General Nyanda, as we've already debated applies for amnesty for specific incidents which were carried out, attacks which were carried out whilst he was in command but he also applies for acts, as I've already said, for any commands, instructions which he gave whilst a Commander, whilst in charge of the Transvaal Urban Machinery which resulted in death or injury and of which he is still unaware. He is not unaware of continually giving instructions, he's just unaware of the consequences of his instructions.

&#9;As far as General Shoke is concerned, he is applying amnesty for specific incidents and he has described those incidents to the best of his ability. He says he was involved in them on the ground and has described what took place.

&#9;And as far as Mr Rasegatla is concerned, he is only applying for his involvement in two attacks and he has described those as well. Save for any new stuff which my learned friends might raise, we've no further submissions to make. Thank you Chairperson.

CHAIRPERSON: Thank you Mr Berger. Ms Patel, do you have any submissions that you would like to make?

MS PATEL: Yes, thank you Honourable Chairperson. Just to comment very briefly, ...(intervention)

CHAIRPERSON: Sorry, I forgot because we had started with Mr Wagener and then went to Mr Berger. Mr Motloung?

MR MOTLOUNG IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, may I at the outset indicate that as far as the decision on the applications by the three applicants, on the merits of each particular say act or deed is concerned, it was my instructions from the victims that I represent that they will not seek to oppose, reluctantly so, the application for amnesty by any of these three applicants. However, my I also hasten to add that I have found some of the points that I've been listening to, particularly the argument raised by Mr Berger, very, very incisive. It is serious food for thought because essentially he doesn't really deal with the merits but he raises a - what one may call a point in ...(indistinct), he is arguing that there is more to it than we may want to believe and I must then add that for my part I find myself constrained to mention that there I found a lot of sense in the effect of his argument when it comes to what I understand to be his argument.

&#9;He says the following. Before you can apply for amnesty, you must in the first place or the Committee must at least find in the first place that you were responsible for a particular deed or act and I think for me and for the Committee that is pretty obvious, you must firstly say this is what I did and you must find that in fact you were responsible for this.

&#9;Now he is asking the question, is this Committee or can it be in the position that that necessary cause - link, I may call it a casual link, has it been proven? Granted the General, while responsible for a particular area, but surely and I do not think that that could have been the intention of the legislature, that if we find that any act or deed took place within his area, it necessarily follows that he should have been responsible for it. As a matter fact, the history of this country knows that the ANC and it's structures like the MK were not the only forces operating within the area, there were other forces. What if this was an act, not of the ANC, not of MK, but say of another say structure or sub-structure. An example would be the Wonderboompoort example. If Mr Aboobaker, is it? Aboobaker?

CHAIRPERSON: Ismail. Aboobaker.

MR MOTLOUNG: If he submits that his structure was responsible for certain acts or deeds and we find same overlap when it comes to the application by the General Nyanda and when the General is confronted by the question, were you indeed - are you emphatic that you were responsible for these deeds and his answer to the effect that if - who knows, maybe I was not responsible, maybe the special ops was responsible. Now the question is, can this Committee under those circumstances, when the Committee itself is not satisfied in the first place that this is something that can be linked or traced back either to an order or an act or deed of the General, can it be found that he should be granted amnesty there?

CHAIRPERSON: I think these incidents that are contained in the submission, this appendix 4, probably can be accepted as being incidents which were committed by supporters of the ANC because they've actually got two, these are the ones we are responsible for and the next appendix is, we're not sure about these ones and then the whole list of incidents of which they're not sure, they might be ...(intervention)

MR MOTLOUNG: Thank you Mr Chairperson, I'm coming to that point. I was going to submit then that to the extent that the General may not be certain and we cannot be certain from a perusal of all the documents about any particular deeds and/or acts, it seems to me that the argument that in respect thereof, no amnesty can be granted there is simply compelling but I'm not suggesting that everything we'll have to get from the General himself and an example would be certain acts as the application by General Shoke showed, there are certain acts apparently, General Shoke acted there under the commands, loosely used the word command of General Siphiwe Nyanda, then if General Shoke, we accept here from his evidence that he was indeed responsible for certain acts, we can then extend the amnesty to General Nyanda in respect of those acts or deeds. Similarly, if any of the other operatives has claimed responsibility and this Committee can be satisfied that the ANC was responsible in the first place, yes then the General can get amnesty in respect of those acts or deeds.

JUDGE MOTATA: But what would be the purpose of a hearing where other people are not advised of those incidents and you proffer argument that because we are at this hearing and other acts because he was in the Transvaal, Chief of Staff and today we hear certain incidents and other acts where people are not afforded an opportunity to say, hey look, it's not him or say something to the contrary. How could we or are we empowered or do we have a wider discretion to include that as well? I've got serious problems about that.

MR MOTLOUNG: Thank you. So Mr Chairperson, in fact my argument seems to be exactly that, that we cannot include in the granting of the amnesty those incidents that cannot be proven to have been committed under the auspices of the General but anybody anything that can be proven or be connected somehow with his orders, yes I'm sure I find no reason why he cannot get the amnesty.

&#9;Now Mr Chairperson, just before I move off, I wish to reiterate that for me the issue is, can the General be linked? If not, or if there is insufficient evidence, and some of these things come from him. I don't mind if he was to claim responsibility for anything and in fact he was not responsible or his operatives were not because then there would be no evidence to countenance what he is saying but to the extent that he himself he says I am not even sure himself whether I'm responsible for or any of my operatives is actually in respect responsible for. How does this Committee then extend the amnesty to those cases? That is all Mr Chairperson, unless you want to hear me further?

CHAIRPERSON: Thank you Mr Motloung. Ms Patel, do you have any submissions?

MS PATEL IN ARGUMENT Thank you Honourable Chairperson, I will be brief given the arguments already raised by my learned colleagues here today.

&#9;In respect of the point in laminae taken as to whether we in fact have a proper application before us by General Nyanda, it is my respectful submission that we do in fact have a proper application before us. Whether that application meets with the requirements of the Act in terms of full disclosure and political motivation is an entirely different question. My understanding of the decision in respect of the ANC review application is that the applications were in fact correctly before us and we were then directed to request further particulars from those applicants which is in fact what has happened in this case and the further particulars were then received by us from General Nyanda albeit after the cut-off date. My difficulty with General Nyanda's application to us is not whether his application meets with the requirements of full disclosure - I mean of political motivation but whether he meets with the requirements of full disclosure. The specific incidents that he has mentioned to us from pages 14 to 16, he has unfortunately in his oral evidence to us he has stated today that he is not certain which of those incidents can in fact be attributed to his overall command that he was giving to operatives and in terms of the guidelines, the policy guidelines that were in fact pointed out to the cadres. In regard to that my submission is that we then are not in a position to say which specific acts, offences he is applying for and he therefore cannot qualify for amnesty.

CHAIRPERSON: Certainly we know for instance at least the incidents committed by General Shoke and Mr Rasegatla, they've mentioned those, they're specific. There's the Johannesburg bomb that people know about, that sort of thing.

MS PATEL: Certainly, Honourable Chairperson, I would concede in respect of instants where he says he authorised those operations and where we have evidence that corroborates his allegations, certainly he should qualify for amnesty in respect of those offences.

JUDGE MOTATA: What about - there's a document and there has been an extraction from the document which incidents fell under TUM and which he was the overall Commander of TUM? What about those, what is your comment?

MS PATEL: The incidents that were carried out under that specific structure which the General can specifically state can be attributed to his command. I will grant that those incidents he should be granted amnesty for but when he says that there are incidents that are listed there that might be special ops that doesn't fall under his command, surely then on what basis are we to decide unless he is able to show to us?

CHAIRPERSON: You say unless he is able to show to us but what if it can be established, what special ops operations were and then not include those for instance those referred to by Mr Wagener, they're confirmed to be special ops and just extract them. What about that situation?

MS PATEL: Well that would be akin to the General withdrawing certain of the incidents for which then applies.

CHAIRPERSON: It would be not succeeding in those applications, he doesn't have to actually withdraw them?

MS PATEL: Well yes then, I would concede that, Honourable Chairperson.

CHAIRPERSON: What about Mr Berger's submissions, saying that he applies for amnesty in respect of certain specified acts, you know, which we've got, that we know about and then in respect of all other acts that he may have given orders for and in which delictual or criminal liability arose?

MS PATEL: I was going to come to that now, Honourable Chairperson.

CHAIRPERSON: I was just thinking, you know, if you had the situation where the head of an army, let's say the South African Defence Force applied, very difficult to start itemising every single ...(intervention)

MS PATEL: Inasmuch as I have great sympathy for the position of General Nyanda in terms of the fact that he doesn't bear personal knowledge of all the acts and incidents which were carried out under his command, we still sit with the practical and legal difficulty of us not being entitled to grant blanket amnesty which is what we would in fact be doing if we were to granting for acts for which he is unaware and my submission is that that is the very crux of the basis upon which those 37 amnesty decisions were in fact set aside, that there wasn't sufficient particularity upon which we would have been able to grant amnesty and we are in fact bound by that. 

CHAIRPERSON: There you get the situation of - I'm not, those are all differed as well, you get the situation of some of those people were not involved in the waging of war, if I could put it like that, they were writing articles and stuff like that but they weren't involved in the waging of war. Here we've got an applicant who was right at the centre of the conflict, the armed struggle whereas you get a lot of those other 37's, they weren't associated with it, they were in leadership positions, granted, but they weren't actually directing a war, issuing orders to soldiers to go out there and kill and let's get the hardware through for it in clear infiltration routes. That sort of thing, I think there's some difference between that type of application and the application of a journalist who was writing about things and not actually involved for instance.

JUDGE MOTATA: And before you respond, the evidence before us goes further, that there were other operatives who had given some discretion of identifying targets but those operatives were under General Nyanda, those operatives were committing some acts or offences of crimes or doing something of that nature. What do we do in that instance if you may assist in that regard?

MS PATEL: The difficulty I have with that, Honourable Chairperson, is that we're obliged in terms of the Act to investigate all acts, offences or incidents for which the applicant then applies for. It may be all well and good for the General to come and say that the operatives were entitled to take decisions on the ground but without us in fact having investigated those incidents or acts, how are we in a position to determine without any evidence before us whether in fact those operatives acted in terms of those guidelines? We're not in a position to say that and so on what basis do we say that ...(intervention)

CHAIRPERSON: Sorry. If I give an order - just on that point - if I give an order to say okay, you go and attack installation X, act within the guidelines and then the operative takes that and goes and exceeds those guidelines, does that effect my giving the order, my liability?

MS PATEL: I think it would effect my liability or the General's liability to the extend, Honourable Chairperson.

&#9;I think it would effect the liability of the person authorising the operation to the extent that he is responsible for the conduct of those operatives. So yes, if he says that I authorise a sub-station to be bombed and the factual evidence is that a woman who was found at the sub-station was raped in the process, clearly that is something that goes beyond the order that was given and he cannot apply for amnesty for all acts and offences, that arises out of that incident and to that extent I have a difficulty with us granting - and I say it again, a general amnesty in terms of acts and offences that we are not aware of, Honourable Chairperson and that the General himself is not aware of and certainly in terms of him, the onus resting on him for full disclosure to be made to us, my submission is that he cannot have made full disclosure and I have full sympathy with the reasons why he couldn't or a person in his position possibly may not have been able to make full disclosure but he still needs to comply with the requirements of the Act.

CHAIRPERSON: Excuse me. Mr Motloung. Ms Patel, is the requirement for full disclosure that the applicant should disclose what is within his or her knowledge or to tell a full story about the incident? What are we expected to understand about the requirement for full disclosure?

MS PATEL: Well, Honourable Chairperson, Mr ...(intervention)

CHAIRPERSON: It must be a full disclosure relating to his acts or omission. 

MS PATEL: Well, Honourable Chairperson, that's been a sore point with me for a very long time. I've argued this many times as to whether full disclosure means that an applicant can come to us and say there were ten of in the room but I only smacked the person who was being interrogated and he can then qualify for disclosure or does full disclosure mean that he is sitting in a room with ten people who have interrogated and assaulted a person and he then refuses to tell us what the other lines ...(intervention)

CHAIRPERSON: Of all relevant facts, he must make a full disclosure of all relevant facts that he knows and if you're a witness to other people committing the offence then you've got to make that, you've got to disclose it but if you supply the gun that's going to do the murder, all you know about is the actual supplying of the gun. That's all you need to give about, you don't have to then give disclosure about how the murder took place, I'm sure not.

MS PATEL: The full disclosure, Honourable Chairperson, is not an isolated thing, it has to be linked to an act, an omission or an offence and my submission here is that what is the act, offence or omission that the General is applying for in terms of which he has made full disclosure. There isn't the act, omission or offence and so the full disclosure doesn't - I mean he can't even say that he has made full disclosure in respect of that. If there are any spectre of General Shoke and Mr Rasegatla, I believe that they should qualify for amnesty, Honourable Chairperson. Thank you.

CHAIRPERSON: Mr Motloung, I see you're putting up your hand?

MR MOTLOUNG: Thank you Mr Chairperson. Mr Chairperson, it's basically two points. Can I briefly state that firstly I cannot see how full disclosure can have any other meaning except something that is expected to be within your knowledge, that should take care of the full disclosure but the actual point that I really wanted to talk on is that there is a small amendment or alteration that I wish to make to my submissions. Can I ask for your understanding because as far as the submissions by the ANC to the TRC are concerned, myself in particular, when the bundle was given to me these were not part of the bundle and therefore the information that I'm getting now is something that I'm getting during these proceedings. I have asked Mr Wagener here if the list of the 37 incidents mentioned by the General Nyanda are all mentioned in the submissions to the TRC and he seems to hold a view that yes, all 37 in fact form part of those submissions. I then said to myself that if that is indeed the case, in the light of the evidence given by the General that in fact some form of a Committee was constituted to try and get all information led into the acts and/or deeds that the ANC was responsible for, if any of these 37 or if all of them do appear in those submissions to the TRC despite the fact that he, as he testified today, was able to say that he himself would not be able to be certain whether his operatives were responsible therefore or not. I would then amend my argument accordingly and say that if as I understand there was a committee and this was a difficult mission where several people beyond himself had to come together and we find that through that Committee a certain act forms part of the 37 and is part of the TRC submissions, then in respect of those that do appear there, we would have no opposition.

CHAIRPERSON: Unless they were - we've already dealt with it, special operations.

MR BERGER: Chairperson, just for the record it's 38 because the Johannesburg Magistrate's bomb is also referred to.

CHAIRPERSON: Sorry, it might be 40 because of the other two, Uncle Tom's and Watloo.

MR BERGER: Indeed, but we are agreed that all of the incidents that have been identified today are in fact referred to in the ANC Submissions. 

CHAIRPERSON: Mr Berger, do you have any reply? Sorry, Mr Wagener, do you have any reply to Mr Berger's argument on the point that you took? Were you not finished?

MS PATEL: Sorry, Honourable Chairperson, I was but just in respect of the Johannesburg car bombing, it had slipped my mind, I thought we would deal with that off the record but seeing that Mr Berger has now stated that that is one of the matters for which he has applied, there's a clear contradiction in that application that was heard. The General, my understanding is that the General's legal representative at that stage had confirmed that he was not applying for that incident. I don't know on what basis that incident is now once again added to the application?

MR BERGER: Chairperson, I wasn't there but my attorney was there and what was said was that General Nyanda was not an applicant in that application?

CHAIRPERSON: At that hearing?

MR BERGER: At that hearing, yes.

CHAIRPERSON: Mr Wagener?

MR WAGENER IN ARGUMENT: Thank you Mr Chairperson. I do not intend addressing you on any issue apart from what has been referred to as the point in limine and I would like to briefly respond to certain aspects mentioned by Mr Berger and also by you, Mr Chairperson.

&#9;The question was asked whether there was perhaps a difference between General Nyanda's application and that of Brigadier Schoon. From my own knowledge I may respond by saying yes. Brigadier Schoon went much further, he actually specified incidents, he did his utmost best to take the Amnesty Committee into his confidence and tried to make a full disclosure as he read the Act and he did give a number of incidents although he said he's an old man, his career spanned some four plus decades, he's been in retirement for a number of years, he tried his best to remember. So yes, there was a difference, I think Brigadier Schoon did better than General Nyanda.

&#9;Then Mr Chairperson, you mentioned on a number of occasions this afternoon words to the effect that at least there had to some sort of application before the Amnesty Committee or else it is too late. Now Mr Chairperson, with great respect, if one tests that statement you realise what the results may be. It is a well known fact that I represent a large part of the old command structure of the then South African Police and many people in more or less the same position or exactly the same position than General Nyanda and they were advised on the strict wording of the Act all along. You can't ask for amnesty in a general sense, you can't apply for general amnesty by just saying I was a Commander for 40 years and people under my command may or may not have committed acts - crimes, therefore they filed no applications whatsoever.

CHAIRPERSON: But you see that now gets down to the giving of advice etc. etc. I'm sure in respect of General Nyanda's application and indeed in respect of the application of the 37 ANC that went through to the Court, that there's no question of any male fides or anybody trying to duck the law. When these application forms were filled in, the process hadn't really started, people weren't hundred percent sure they hadn't sat down and gone through the sections with a fine tooth comb etc., but the fact is they had to - what I'm trying to say, they had to be - we can't allow, we can't consider a late - an application that was for the first time lodged after the cut-off date. If there's an application that was lodged before and it's registered etc, even though it might not have been attested to by a Commissioner or there's a lack of detail, then at least it's an application that falls for refusal or granting, for a decision. 

MR WAGENER: Mr Chairperson, then only a closing remark and again this is done with great respect. Has the stage not been reached where the Amnesty Committee should consider approaching the legislature that they should come forward with a piece of new legislation dealing with this exact problem of people in command structures on both sides of the conflict of the past, how to deal with their positions because one again, Mr Chairperson, I have ...(intervention).

CHAIRPERSON: That is the submission made by the Generals of the Defence Force, I think they've put up something to that effect.

MR WAGENER: Mr Chairperson, I haven't seen that but no, I think that is something that actually dealt with something different. What I read in the media was that the Defence Force Generals asked for a general amnesty as we had in the present Namibia where someone could then, if charged in a criminal court, then raise as a special plea that he had received amnesty and that that will then be a question to be decided by that criminal court. That is not what I'm suggesting, I'm merely suggesting the situation of the command structures where there's many other General Nyandas in the same arena who don't know what happened, what was done by operatives at lower levels in terms of what was perceived by them as instructions by their command structures because Mr Chairperson, I can see, with great respect, all sorts of problems arising if that is not the avenue to adopt because even if you decide here that General Nyanda was not too late as was decided, Brigadier Schoon was too late. You still have a problem that amnesty is granted to a person who doesn't even really know and with respect to General Nyanda, I can understand his position, I consulted with many people in situations quite similar to his, they don't know. So you then grant amnesty for acts for which there's no real evidence before you and then the only other alternative would have been like what the original Committee did with Hechter and Van Vuuren saying we can't grant you amnesty now but maybe later on but the problem with that, Mr Chairperson, is that later on may never arise and the books can then never be really closed on that part of our history. So if I may then through you make a suggestion, I would appreciate that. Thank you Mr Chairperson for listening to me.

CHAIRPERSON: Thank you Mr Wagener. Is there anything further anybody else wishes to say or is that the end of this hearing?

MR BERGER IN REPLY: Chairperson, if I could just have some closing remarks? If I could just deal with Ms Patel's submissions? 

&#9;In respect of those operations which General Nyanda says well, he can't be certain that those were under Transvaal Urban Machinery, if those are acts that Mr Ismail claims responsibility for, for special operations, well then if the Committee was satisfied that he was responsible for those acts, then those are excluded. Clearly then, General Nyanda can't be criminally or delictually liable for those. We have no problem with that and those have been mentioned, those specific item numbers have been mentioned by Mr Wagener. &#9;On another point, Ms Patel and Mr Wagener expressed great sympathy with General Nyanda for the difficult position that he is in and it's really such a shame but the question is not whether one such sympathise with General Nyanda but whether it was ever the intention of the legislature to put people like General Nyanda in such a position because we must assume that the legislature had all of these considerations in mind when the legislature was passed. After all it's legislature which was passed by the present democratically elected parliament and that legislature knew full well of the position of MK Commanders who were issuing instructions and who did not have the knowledge of what actually transpired in many instances on the ground. Was it ever intended that such acts should not be given amnesty for? I submit not. 

&#9;As far as instructions which go astray are concerned, well that's quite right, then if the going astray was never foreseen or foreseeable, if instructions were given to a unit to go into a particular area and carry out an operation and in the process of that women were raped, clearly that is not within the parameters of the order but then equally clearly, the Commander who gave the initial instruction would not be liable for the rapes which occurred. It's only those instructions which led to the carrying out of operations within the parameters of the instructions for which the Commander can be held responsible and for which the Commander applies for amnesty.

&#9;Dealing with that point, it's also linked to the question of full disclosure. Our submission is that full disclosure can only be full disclosure of all relevant facts that are within your knowledge. It can't be full disclosure of anything else because then it's putting an impossible burden on an applicant for amnesty and that could never have been intended, but ...(intervention)

JUDGE MOTATA: Then would others which would fall within the first leg politically motivated and say well, some of these acts are politically motivated, then the second leg of full disclosure and say even though there's not full disclosure therefore, he can get amnesty?

MR BERGER: No, I'm not suggesting that at all.

CHAIRPERSON: I think that - sorry to interrupt Mr Berger, this question of full disclosure, a person will be refused amnesty if the Committee is satisfied that he hasn't given full disclosure and that means that the Committee either knows or is of the view that the applicant is one, lying ...(intervention)

MR BERGER: Or he is holding back.

CHAIRPERSON: Or he is holding back stuff that he does know and feels strongly about that. If the applicant knows only a little fact, a little few facts and then gives them and the Committee is satisfied that he has done all he can, then that's a full disclosure although it only covers a little compartment of the whole incident. I think that's quite clear. So we've got to really feel that the applicant hasn't been forthright.

MR BERGER: And that is my submission Chairperson, if one looks at section 20.1 of the Act. It says that if the applicant, if the application complies, if it's an act associated with a political objective and if the applicant has made full disclosure of all relevant facts - then it goes on to say it shall grant amnesty in respect of that act, omission or offence so - and I'm focusing on act and I'm saying that General Nyanda says he sits in a command position and he gives instructions to unit to go into the country as part of Transvaal Urban Command and carry out attacks in which people are killed or injured and he is saying for that act, for that instruction, that's what I want amnesty for, over and above the incidents that are specifically recorded.

JUDGE MOTATA: I raised the very question with Mr Motloung because now I've had an opportunity to look at the Act again and if you look at 19.4, it says when a hearing shall be held is that in terms of 19.4 the applicant should be notified of the hearing, the victim and any other person implicated and now we've had a hearing here. We say okay, we have been given a schedule, people have been notified and then we say no, no, but we look at the document compiled as well, there are other acts where the applicant is involved, like in the instance of General Nyanda, that now we should consider that as well. I say would that be compliance with the Act because we should have given notice to other people who have an interest in the hearing, like the victims, the implicated persons. Would that, if I follow your argument, be compliance with the Act?

MR BERGER: Well Judge, we don't know who the victims are, we don't know if there are any victims. That is the difficulty and my submission is that one has to give some meaning to the legislation. One can't say that the legislature intended to deprive someone in the position of General Nyanda from being amnestied, if I can use that word, from being protected from civil and criminal liability because he comes forward and he says, I was that person who was in charge and I sent units into the country and I don't know everything that happened within the country because of whatever lack of information and secrecy and so on. Could the legislature ever intended to say to someone like General Nyanda, come forward, expose yourself and then there's no remedy, there's absolutely no remedy for you? As Mr Bathender argued in the Constitutional Court the other day, he says a right without a remedy is not a right at all and that's what I'm submitting now. The obligation is to come forward, disclose everything you know. The remedy is you get amnesty. Now the suggestion is you come forward, you disclose everything you know, you expose yourself to liability but yet you're not entitled to amnesty.

JUDGE MOTATA: No, it doesn't. Even where I gave instructions but I am not aware of those, doesn't it go further than there or is that not your argument, otherwise I'm not following you?

MR BERGER: No, he's not saying even though I'm not aware of instructions, he is saying I gave instructions, I sent people into the country. Sometimes we identify the targets in advance. Other times we gave the operatives a discretion and I don't know always which - or I can't recall which operations were carried out under my control. Now we're saying if you sent those operatives into the country, you gave them a discretion, they carried out your command and they acted within the guidelines. Because of communication problems and it never came back to you, are you not eligible to be amnestied for that and my submission is that the legislature couldn't have intended that General Nyanda expose himself and then not be entitled to amnesty.

JUDGE MOTATA: Wouldn't that be a simple problem then that if someone who comes forward and say I attacked or committed this offence and I did so with the blessings of General Nyanda and he is not aware those are some of the incidents where he says whilst you have infiltrated the country you've got a discretion which targets to attack. Under those circumstances, if he's implicated he can come forward under those auspices or probably say that incident as well, even though he would not be strictly speaking an applicant in respect of that incident like we are referring to the Johannesburg Magistrate's Court where he was present but he said in this hearing I am not an applicant and it arises in our hearing. So there should be a difference there because what the Act envisages is that it empowers the Committee, the Amnesty Committee to say if an incident has been identified by an applicant, then the Amnesty Committee has the Investigative Unit which could look at it and investigate it fuller and inform other people who might be mentioned in that.

CHAIRPERSON: Yes, that's only where there's been a gross human rights violations, it doesn't apply to all the ...(inaudible).

MR BERGER: But the problem, Judge, is if you had to apply for amnesty, if you had to mention that incident by name but didn't prior to the cut-off date and other people have put in amnesty applications of which you are unaware and then it comes up, on Mr Wagener's analysis you're out, you have no protection.

CHAIRPERSON: Start getting to end the ...(inaudible)

MR BERGER: Chairperson, I'm almost done with my submissions. My learned friend, Mr Wagener, says that he advised the old members of the SAP that they couldn't apply and he now raises the spectre of the flood gates being opened and hundreds of old police generals rushing forward. If they never made application for amnesty, as I've already submitted, they're in a different class but the important point which Mr Wagener forgets is that the South African Police and the old South African Government never put forward anything which resembles the submissions that were put forward by the ANC where attacks were detailed and it's those attacks that General Nyanda refers to in his initial application. If old police generals had referred to something like this in their original applications, I would submit that they're in, but they never did that because there were no such submissions on behalf of the South African Police. In fact in 1997, if my memory serves me correctly, the Police were still denying responsibility for a whole host of murders which have subsequently been attributed to them. The spectre of opening the flood gates, with respect, is not a real one. I thank you.

CHAIRPERSON: Yes, well thank you, that then brings this hearing to a conclusion and indeed - sorry Ms Patel?

MS PATEL: Sorry Honourable Chairperson, before you do, I think you intimated earlier on that parties would be allowed to hand in supplementary heads in respect of the ANC 37 and can we just get a time frame to that please?

CHAIRPERSON: Ms Patel has just mentioned - as I mentioned, during the course of next week we'll get hold of the Schoon decision and the ANC 37 decision and forward them to the legal representatives and then if you wish to make any further comments or submissions you can do so but as Ms Patel says, it's better to have some sort of time schedule. Perhaps within two weeks of having received them we'll fax them so we'll know when you've received them.

MR BERGER: That is in order, Chairperson, if you could also ask Mr Wagener to make available Brigadier Schoon's amnesty application so that we can do a proper comparison?

CHAIRPERSON: We should have that in our records in Cape Town so perhaps we can get hold of that relevant application and decision. If we have any difficulties trying to identify it then, Mr Wagener, we'll communicate with you and you might be a bit more specific to help us. Thank you.

&#9;...(inaudible) for their assistance. I'd also like to thank all the people who made this hearing possible. Thank you very much indeed for what you've done, the translators who had quite an intense two days, we sat late last night, yesterday, we're sitting a bit later today as well. Thank you very much. And to the caterers, to the suppliers of the hall, the sound technicians, television man, everybody concerned, thank you very much. We will reserve our decision in this matter and it will be handed down in written form. Thank you.

HEARING ADJOURNS

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