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ON RESUMPTION ON 28.11.97 - DAY 5
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ON RESUMPTION ON 28.11.97 - DAY 5 

COMMISSION COMMENCES WITH PRAYERS.

CHAIRPERSON: Thank you. Good morning. We welcome you to this the fifth day of the sitting of the Truth and Reconciliation Commission. As I announced last night, we are doing everything we can to try and catch up on our schedule and I believe that we have been acting as expeditiously and responsibly as we can.

&#9;We will not now meet tomorrow, Saturday and Sunday, so you can watch the Rothmans Final and the rugby test with a clear conscience, but we think that responsibly we should budget for Monday, Tuesday and Wednesday of next week.

&#9;I want to say too that today, in order to make it possible for our Muslim friends to attend mosque, we will take lunch between half past twelve and half past one. Lunch may not arrive at half past twelve, but they are going to try and solve that out. If it comes at one o'clock, then it comes at one o'clock.

&#9;Messrs Cachalia and Morobe, you are still under oath.

MURPHY MOROBE: (still under oath)

AHZAR CACHALIA:&#9;(still under affirmation)

CHAIRPERSON: Mr Semenya?

MR SEMENYA: Thank you Chairperson. Maybe one can start with Mr Cachalia. Mr Cachalia, I want us to explore your request or your call for recommendation by the Truth and Reconciliation Commission, that you say that people convicted of crimes involving human rights abuses, ought not to take public office. Is my understanding correct?

MR CACHALIA: Well, let me qualify that, that in the course of the struggle for democracy in this country, that there were human rights violations that were committed. Many of those who committed those human rights violations, for example in the course of our armed struggle, did so because they were acting in the best interests of the organisations they represented at the time, and many of those people would have applied for amnesty.

&#9;And those who have applied for amnesty and have been granted their amnesties in relation to acts that have been committed, I think that their past in that sense should be taken account of, but what I am saying is as a general proposition and as a general proposition I was not referring Mr Semenya, to your client, Mrs Mandela particularly. As a general proposition, I think it is important in this country that those who have committed human rights violations of a serious nature, should not qualify to hold public office.

MR SEMENYA: I am beginning to understand you are amending the call for which their was a standing ovation given to you, there was an ovation that was given to you?

MR CACHALIA: Is that your observation, or do you want me to comment on that?

MR SEMENYA: Is my observation correct? That after you made this statement there was ... (intervention)

MR CACHALIA: No, I am not amending the recommendation that I am calling for. I had nothing to do with the hand clap either incidentally.

MR SEMENYA: But you want this recommendation to exclude people who would have applied for amnesty and granted amnesty?

MR CACHALIA: Yes.

MR SEMENYA: It is an amendment of this statement as I read it?

MR CACHALIA: It is not an amendment Mr Semenya. The issue of whether or not people should be granted, should hold public office or not, as you would know, is a complex debate. If one has to deal with that, that submission particularly, then I could literally go into volumes to discuss this matter.

&#9;I have dealt with this matter briefly in one paragraph as a proposition to the Commission. The Commission in its, I would hope that the Commission, in its wisdom is able to take into account not only what I have said, but that there would have been many people who would be making submissions in this regard. It is a matter that the Commission would take account on.

MR SEMENYA: Yes, that is why I am trying to invite you now as a lawyer and a human rights activist, to help us understand the moment in history that you had. Is it correct that the creation of the Truth and Reconciliation Commission was discussed at length, the purpose being to avoid as it were, your Nuremberg style, type of prosecutions after a democratic election?

MR CACHALIA: I think that is one of the purposes, it had many other purposes as well.

MR SEMENYA: The other purpose was to attempt to make sure we don't burden our future with for want of a better term, political linking is that correct?

MR CACHALIA: Well, I am not sure that I understand your question. Perhaps you can be clearer about that?

MR SEMENYA: The question is, it was important for all the players to make sure that our future is not burdened by linking people whose political convictions were different from ours. Linking in a political sense, not in a physical sense. We do not target people for special treatment because they hold political views different from ours?

MR CACHALIA: No, surely that was not the purpose of the Commission. The Commission didn't have anything to do with the fact that people had robust differences of political views that so if people in the past believed in the theory of racial supremacy, that you know, that the Truth and Reconciliation Commission is not making recommendations that people should change their attitudes. I really don't understand the question.

MR SEMENYA: Let me make it a little easier and refer you to the postamble to the Constitution of the Republic of South Africa Act 200 of 1993. Precisely where it refers to the National Unity and Reconciliation.

&#9;And I am reading to you what appears as the third paragraph. It reads the adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past.

&#9;That was the object of, amongst others, of the adoption of the Constitution, am I correct?

MR CACHALIA: That is correct, yes.

MR SEMENYA: Further down it says in order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts and it goes on to this end, Parliament under this Constitution shall adopt a law determining a firm cut off date which shall be it says the date, providing for the mechanisms, criteria and procedures including tribunals if any, through which such amnesty shall be dealt with at any time after the law has been passed.

&#9;So I am reading from this that there was an intention in the Constitution agreed by everybody, that it contemplated a forum through which this reconciliation can be fostered.

MR CACHALIA: Certainly, yes.

MR SEMENYA: And that reconciliation is the one that must transcend the divisions and the strife of the past? And one looks at the ... 

MR VALLY:&#9;Keep your microphone on Mr Cachalia. Sorry, could I just take a brief opportunity Mr Semenya, I don't mean to interrupt you, but the postamble to the Constitution links the issue of reconciliation with the issue of the granting of amnesty. I think in its entirety, it specifically refers to the issue of amnesty in connection with the issue of the reconciliation. So I think with respect, I think that should be recorded in its entirety, that aspect.

MR SEMENYA: Chairperson, I am lost what Mr Vally is saying to me.

MR VALLY: The point I am making sir, is that the aspect that Mr Semenya is quoting from the postamble, is not quoted in its entirety. The connection between the bridge from the past to the future, to a stage where we reconcile, is specifically linked to the issue of amnesty sir.

MR SEMENYA: I don't know, are you saying the function of this Commission is not to foster reconciliation and provide the mechanism which is a bridge from our strife torn past to a reconciled future?

MR VALLY: I don't mean to interrupt your cross-examination. All I am saying is the postamble that you are quoting, you are not mentioning that link. The link between amnesty and reconciliation.

MR SEMENYA: Maybe if I can just read the entire postamble, my learned colleague would be satisfied. The postamble, Mr Cachalia, reads that the Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.

&#9;The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, who has generated gross violations of human rights, the transgression of humanitarian principle in violent conflicts and a legacy of hatred, fear, guilt and revenge.

&#9;This can now be addressed on the basis that there is a need for understanding, but not for vengeance. A need for reparation, but not for retaliation. A need for ubuntu but not for victimisation. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.

&#9;To this end, Parliament under this Constitution, shall adopt a law determining a firm cut off date, which shall be a date after 8 October 1990 and before 6 December 1993. Of course, there were amendments to this and provided for the mechanisms, criteria and procedures, including tribunals if any, through which such amnesty shall be dealt with at any time after the law has been passed.

&#9;Would you accept I have read the postamble the way it stands, Mr Cachalia?

MR CACHALIA: I can't accept it, because I don't have it in front of me, but I accept that you have read it.

&#9;I take at face value what you say, I mean you can't expect me to make admissions of things I don't have in front of me, but I accept absolutely your bona fides.

CHAIRPERSON: I will confirm that in fact it is so.

MR CACHALIA: Then I am obliged to accept that as accurate.

MR SEMENYA: And then throughout the process, Mr Cachalia, I wish to read to you the preamble of the current Constitution and I won't read it all unless I am persuaded to do that.

&#9;But one of the lines of the preamble says we the people of South Africa, recognise the injustices of the past, honour those who suffered for justice and freedom in our land, and it goes on that way. You would accept that that is where we are coming from?

MR CACHALIA: Absolutely.

MR SEMENYA: And to this end, we have in our Constitution the fundamental rights?

MR CACHALIA: Yes.

MR SEMENYA: And as a human rights activist, you would attach, I believe, a very great weight to the fundamental rights enshrined in the Constitution?

MR CACHALIA: Yes.

MR SEMENYA: And I wish to take with you one of those fundamental rights which are enshrined in the Constitution and I wish to refer you to Section 19 of the Constitution, under the heading Political Rights.

&#9;And that Section 19, subsection (3), reads every adult citizen has the right to stand for office and if elected, to hold office. So we know we can't appoint where the final Constitution is adopted where everybody is bound by the supreme law that says every adult citizen has the right to stand for public office and if elected, to hold that office.

MR CACHALIA: Yes.

MR SEMENYA: Now, I wish to cross-reference that with an aspect that relates to how one can hold public office, particularly become a member of the legislature.

&#9;And it was very critical at the time, and maybe I should know something about this very aspect, that disqualification of membership for Parliament had with it in Constitutional (indistinct), the question of disallowing as it is, convicted criminals being members of Parliament.

MR CACHALIA: Yes.

MR SEMENYA: But because of our peculiar history, we had Section 47, subsection (e), which reads - let me maybe start with the opening phrase.

&#9;Every citizen who is qualified to vote for the National Assembly, is eligible to be a member of Assembly and we know every citizen means every adult citizen, except and subsection (e) reads anyone who and this is the important aspect, after this section took effect, is convicted of an offence and sentenced to more than 12 months, but it was quite specifically to make sure that the prohibition must relate to convictions that happen after and it was intended not to mar our future with the activities of the past, is that a fair statement made?

MR CACHALIA: I understand what you are saying. Could I just say Mr Semenya, as you proceed, in the sense this is going to begin to be a debate on human rights (indistinct) between lawyers, I am under cross-examination and it is going to be difficult for me to engage with you know all the very complex matters.

&#9;You yourself said in the Constitutional Assembly, is a technical expert, you would have read books, you would have dealt with all these matters at length. Now, I am perfectly happy to answer your questions open and honestly, but I am saying that there is a bit of a difficulty for me to engage with the debate, engage with you in debate on this matter, but I am perfectly happy to answer your questions.

MR SEMENYA: No sir, you have made a very deliberate call, which call has an impact if the recommendation is made by the Truth and Reconciliation Commission, to amend our Constitution.

MR CACHALIA: I don't understand it that way.

MR SEMENYA: But that is what I am trying to make you understand Mr Cachalia, that please give me your answer?

MR CACHALIA: As I say I don't understand that the call I am making, it any way impacts on the Constitution having to be amended. But that is exactly why I am saying, I am now at, I think I am at some disadvantage.

&#9;Can I tell you what my understanding of it is, I may be incorrect. My understanding is very simple one, and that is that those who have committed offences which amount to gross human right abuses over many years in our past, that they even today can be prosecuted. Even today, that if one discovers that an offence was committed ten years ago, that person can be prosecuted, and that person, if sentenced, may be disqualified from holding public office.

&#9;Now, the only assistance where the Constitution comes to peoples' assistance in my understanding, is where people have applied for and were granted amnesty. In that situation, if an offence which amounts to a human rights violation, was granted amnesty for, then that in effect removes the disqualification in my view, for public office.

&#9;That is how I understand it. If I understand it incorrectly, then you must point that out.

MR SEMENYA: No, but that is precisely my difficulty. As the law stands, as the supreme law stands today, anybody who gets convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine in the Republic or elsewhere, would not be eligible to hold public office, so your call, if it is intended to deal with that event, it is (indistinct). What is the point for the Commission to make that recommendation if that is the sense you are attaching to that? Because that is the law.

&#9;What are you saying the Commission must recommend?

MR CACHALIA: Mr Semenya, let me make the point that what I, that my submission to the Commission in this respect, let me be quite clear, does not deal only with your client. It may affect Mrs Mandela, but it is not intended to deal specifically with her. It is something that I personally feel very strongly about.

&#9;That those who have committed human rights offences in the past, which do not amount to a political offence, which they were granted amnesty for, should be disqualified from holding public office. Straight forward and simple. I do not believe that we can go into our future where those matters haven't been cleared up.

&#9;And for me that would be the poison that would not allow us to go forward. Now, that is my answer to you.

MR SEMENYA: But that is precisely my difficulty Mr Cachalia, and I didn't say you are referring to my client.

MR CACHALIA: Yes.

MR SEMENYA: I am saying to you are you asking the Commission, and I am addressing you as a lawyer and a human rights activist, are you asking this Commission to make a recommendation which is already law, in this country, or was there some intention to be sensational?

MR CACHALIA: If you are imputing improper motives to me ... (intervention)

MR SEMENYA: Well, just give me an explanation and I will retract that.

MR CACHALIA: Well, I think repeat the question without the sensational bit.

MR SEMENYA: Were you asking the Commission to make a recommendation whose effect is already law in this country?

MR CACHALIA: Well, if - as you say I would have to look at the law, but if you say that is the law, and if you say that the Commission is bound by that, then my position is covered, then all my recommendation is that it is tautologist, it adds nothing.

MR SEMENYA: It must be so Mr Cachalia. It must be so. Now, let us look at the other aspect of your statement. I have had an opportunity to study the statement which you have prepared. The very first page of the statement in the main, other than dealing with your particulars, covers briefly explains the circumstances which prevailed at that time and leading up to the issuance of the statement.

MR CACHALIA: That is correct.

MR SEMENYA: Is it fair to say this aspect of the history, even a gentleman like Mr Morobe would have been able to give or was it peculiarly within your knowledge? The background of the circumstances?

MR CACHALIA: No, I claim no - there is no unique reason why I gave this information, no.

MR SEMENYA: Okay. So I go down the fourth page of your statement.

MR CACHALIA: So, you've skipped the second and third?

MR SEMENYA: No, I will come to it, I just want to show you certain things Mr Cachalia. 

MR CACHALIA: Sorry, you are now referring me to the fourth page?

MR SEMENYA: Yes.

MR CACHALIA: Okay.

MR SEMENYA: Sorry, let me refer you firstly to page 3 of the statement. Even in your language, you say in paragraph 10.1 I must emphasise that I am unable to give any direct evidence relating to the events around the Mandela home during the period in question. Is that right?

MR CACHALIA: Yes, you have just read that, that is what I said.

MR SEMENYA: Then let's go back and see what aspects of your statement are informed by direct knowledge of the issues that pertains to this hearing.

&#9;At the top of that page you make a statement which at least in the type written statement, which stood like this, at paragraph 8.1 the last line of that, it says Mrs Mandela often directed these operations. And I paid careful attention when you testified yesterday, you then said Mrs Mandela is widely said to have directed these operations. Is that correct?

MR CACHALIA: Sorry, you are now reading from the top of page 3, is that 8.1?

MR SEMENYA: That is right, the last line. It reads in its typed form, Mrs Mandela ... (intervention)

MR CACHALIA: Mrs Mandela often directed these operations, yes.

MR SEMENYA: It stands like a statement of fact?

MR CACHALIA: Yes.

MR SEMENYA: And I recall when I listened to your evidence, you amended this to mean Mrs Mandela is widely said to have directed these operations. Now, you are quoting it is a hearsay at that level, is that right?

MR CACHALIA: Mr Semenya, really, my statement is very clear. Start at paragraph 8, you don't look at 8.1 without looking at 8. At 8 where I am saying there were many rumours that circulated. That is a fact. The fact is that there were many rumours and they were wide spread.

&#9;Okay, I say then in the absence of any independent means of verification, it was impossible to separate fact from fiction, so I concede that there may have been some facts, there may have been some stories. There were however a few common themes which recurred, the themes referred to if you like, the clusters of rumours okay, that were emerging.

&#9;Then when I go from 8.1 and 8.2 and 8.3, I am talking about those different themes. I say I have no direct knowledge of any of that. That is what I am saying. 

MR SEMENYA: All I am saying to you sir is that if you read 8.1 it would say the following to you, that the Football Club and this is the rumour, the Football Club often dispensed a frightening brand of justice which included vicious assaults in cases ranging from domestic disputes to those who crossed their paths and were branded as informers. Mrs Mandela often directed these operations.

MR CACHALIA: Yes, because we would hear for example, that the kombi was driving around Soweto and that Mrs Mandela was inside the kombi. That Mrs, you know, those sorts of things were spoken about widely in the community.

&#9;I don't claim to have been there, I don't claim to have seen it. I am saying to you that this is what people have said and as far as I am concerned, if that is being said and Mrs Mandela is in that kombi, then Mrs Mandela is not some sort of passive passenger in the kombi, Mrs Mandela is directing the operation.

&#9;Now, if all ... (intervention)

MR SEMENYA: Mr Cachalia, please.

MR CACHALIA: No, but you must allow me to complete what I am saying. You see, this is not simply give me a yes or a no and run away. I have never claimed that I had direct knowledge and I am saying that when - what I have set out here, represented the things that were spoken about in the community, particularly the Soweto community at the time.

MR SEMENYA: Now, at least between you and I we know, that you have no independent way of telling us any of these allegations are true, is that correct?

MR CACHALIA: No.

MR SEMENYA: Then can we read 6.10 on page 2 of your statement?

&#9;This was the climate in which Mrs Mandela created her own personal vigilante gang?

MR CACHALIA: Yes.

MR SEMENYA: Are you (indistinct) somebody, or this is now your conclusion?

MR CACHALIA: No, this is my understanding of how the Mandela gang, euphemistically referred to as the Football Club, was created. That was my understanding, that is what everybody who was anybody in Soweto, including - well anyway - everybody and anybody who was in Soweto who understood these matters, held that view.

MR SEMENYA: No, but Mr Cachalia, as a lawyer really, you would know that if you say I held a view without any basis of verifying the allegations, that she had a personal vigilante gang of her own, it is one thing. To put it in a statement this was the climate in which Mrs Mandela created her own personal vigilante gang?

MR CACHALIA: Yes.

MR SEMENYA: On what basis of actual factual knowledge personally, that could have given rise to the validity of the statement you are making?

MR CACHALIA: No, it was from my point, it was really a series of inferences over a long period. If you look at the 1980's and go back to the statement, where I for example at 8.3 refer to, I refer to one or two cases there, that I think all I am saying to you and remember I have come here and I am testifying, testifying as to my state of mind around the adoption of the MDM statement in 1989.

&#9;Now what I say there is that the climate in which Mrs Mandela created her own personal vigilante gang, that is if you like my understanding of what happened. 

MR SEMENYA: Let me ask you a simple, direct question.

MR CACHALIA: Yes.

MR SEMENYA: Is there any fact you know that gives rise to you saying that Mrs Mandela created her own personal vigilante gang?

MR CACHALIA: Is there any fact, you must try and rephrase that, is there any fact that I know?

MR SEMENYA: That supports the statement you make, Mrs Mandela created her own personal vigilante gang?

MR CACHALIA: I have no direct fact, I have never claimed to have any direct evidence, or personal knowledge of the creation of the gang and Mrs Mandela. But that is how I understood it and that is my assertion.

MR SEMENYA: But with respect, Mr Cachalia, you are a very responsible member of the community, you are a very responsible leader within the political formations of the country, how do you make a statement like that as a lawyer, when you have no fact to support it?

MR CACHALIA: I make it quite simply and quite comfortably.

MR SEMENYA: Oh, is that how it happens?

MR CACHALIA: Yes.

MR SEMENYA: Now, I want to refer you to a document which was called Operation Romilos.

MR CACHALIA: Operation Romeo's?

MR SEMENYA: Operation Romilos.

MR CACHALIA: Oh, I thought you are going to start raising other matters about my past. I am joking, I am being precocious.

MR SEMENYA: I think it would be common cause, this is a Security Force measure, a document which is intended as its heading the Dissemination of Suitable Material re Winnie Mandela Abroad, Discreditation of the ANC.

CHAIRPERSON: What document are you referring to there? We do have it, sorry, thank you.

MR SEMENYA: The second page of that document has something like this, but all of this is discreditation of Winnie Mandela and the ANC. There is a paragraph (8) which reads as follows.

MR CACHALIA: Before you start, can I just ask when was that document drawn up, who compiled it, I have never heard of Operation Romilos. If you can just give us some indication of where it comes from.

MR SEMENYA: Yes, it is at least as we have it, signed by the Section Head, J.H.B. Bruwer, Major, in Johannesburg, 1991-06-20. That is the date. It is compiled by then there is a signature P.F. Erasmus, Warrant Officer.

&#9;But maybe it would be preferable that I give you the document to have a look at as well.

MR CACHALIA: It would actually be useful especially if you are going to ask me questions on it.

CHAIRPERSON: I have to be consistent, I refused on an application to quote from a document that has not yet in fact been part of the public domain, Mr Joseph, wanted to refer to a document and I would think that if I am consistent, I should rule ... (intervention)

MR SEMENYA: Archbishop, I think this document can be distinguished from your previous ruling. In your previous ruling what Mr Joseph was seeking to do was try to quote from a statement that a witness was going to make. This is a document which has existed in the independent of our processes. So I think it is a different scenario.

MS MOOSA:&#9;Hanif, can I just ask, is Mr Semenya going to use the affidavit of Paul Erasmus or Operation Romulus?

MR VALLY: Mr Semenya can answer that?

MR SEMENYA: I was referring the witness to the document, Operation Romulus, on page 2.

DR BORAINE:&#9;Sorry, Mr Semenya, can you clarify that, is it the sworn statement that you are looking at?

MR SEMENYA: That is a document with stamped copy. 

CHAIRPERSON: What is the cover, what is the cover of the whole batch?

MR SEMENYA: It is at the Truth and Reconciliation hearing held at Johannesburg in the matter of Winnie Madikizela-Mandela, evidence of John Louis McPherson and it is an annexure to that document.

MR VALLY: Archbishop, my position is from sitting on this side, that it is very important for the Truth and Reconciliation Commission to determine what is fact against Mrs Madikizela-Mandela and what is disinformation. In terms of our own processes, this is not a statement of a person who we are intending to lead at this point. 

&#9;We are going to lead people talking about Operation Romulus, in fact we have two witnesses scheduled and Mr Erasmus and Mr Vic McPherson. But the document itself predates their evidence through us, so from my perspective it is important that it be canvassed.

CHAIRPERSON: Let me just have a two minute consultation. Is that the only part of this batch, that you are going to refer to?

MR SEMENYA: Yes, Chairperson.

CHAIRPERSON: Thank you. Yes, I think then that is in order, we should just give him the opportunity to peruse it, if you will, so let's take a two minute break.

COMMISSION ADJOURNS

ON RESUMPTION

MR SEMENYA: Mr Cachalia, I had meant to cover an aspect in your evidence where a response by Mrs Mandela that these publications were Stratcom publications, I think your response to that was no, this definitely was ours. 

&#9;I am trying to explain the context in which that comment must have been made. If you look at the document Operation Romulus and I don't want to go through the entire document, let me just highlight aspects about it which indicate that indeed there were police operatives, who were meant to do this discreditations.

&#9;If you look at page 2, paragraph 8, it says this office further capitalised on the situation by creating the perception that City Press who are under the ANC hammer for their stance on the matter, that some of the information was forwarded from Cheadle Thompson and Haysam, a legal firm and which will in turn give credence to yet another action in which staff member and SACP member, Sheila (indistinct) was severely discredited.

&#9;I am saying an office such as Cheadle Thompson and Haysam which have immense respect as a legitimate law firm in the furtherance of the struggle, was also targeted in furtherance of this object, is that right?

MR CACHALIA: I would have assumed that, it is interesting to read that, but I would assume that, they would have been doing that.

MR SEMENYA: That is right, and it says at paragraph 9 that the problem is continuing and further developments would be recorded in due course. So it begins to suggest that this Operation doesn't terminate at this particular point.

&#9;Now would you state it as unreasonable whenever the media circulated that the mass democratic movements are distancing themselves from Mrs Mandela, that she could have held the belief that it must be again a Stratcom dissemination of propaganda?

MR CACHALIA: It is difficult for me to talk about Mrs Mandela's own beliefs. But the point about this is that if Mrs Mandela held that view, then she would really have to hold the view that firstly those on the public platform that day, Murphy Morobe, Archie Gomele, Elija Bagai, stalwarts of the struggle, was somehow in the pocket of some sinister Stratcom.

&#9;And quite frankly it is really a proposition that is so preposterous and ludicrous, that I don't know how Mrs Mandela could reasonably have assumed that.

MR SEMENYA: I don't want to take up again with you your adjectives again, but let's get finally back maybe to your statement.

&#9;The last page ... (intervention)

MR CACHALIA: Sorry, you are now reading at the last page of Romulus, my statement?

MR SEMENYA: No, your statement. At paragraph 14 you say upon President Mandela's release from prison for Mrs Mandela the time had come to settle old scores. She telephoned me one evening after I had presided at a press conference at which Mr Mandela was present, and warned me to stay away from Mandela.

&#9;Now, is this evidence of yours at attempt also to settle what you called here old scores?

MR CACHALIA: No, it is not an attempt to settle old scores. You know, Mr Semenya, and I am going to say this now, we were part of making a decision in 1989, as I pointed out it was a difficult decision.

&#9;That decision has lived with me for nine years, for eight years, it was extraordinary then and even today as I give evidence, I am deeply conflicted about it. It is difficult. So, for me to give evidence and not to talk about some of the very real things that happened around that, would be something which is festering inside me.

&#9;It is not a matter which I did not take up, I in fact tried at that point, even through the structures of the ANC, to have had this matter dealt with responsibly. It wasn't dealt with, it wasn't dealt with at all.

&#9;So now I have to talk about it.

MR SEMENYA: No, what I am saying is obviously when the phone was dropped on your ear, as you say you got offended by this.

MR CACHALIA: That is to put it mildly, yes.

MR SEMENYA: And you made sure today you will say so.

MR CACHALIA: Yes.

MR SEMENYA: That is the point I am making. Chairperson, I have finished with my questions on Mr Cachalia.

CHAIRPERSON: I think we should then do the round with Mr Cachalia, shouldn't we?

MR VALLY: My feeling is I think Mr Semenya should question Mr Morobe first, before the other people.

CHAIRPERSON: Okay.

MR SEMENYA: Mr Morobe, my information is this and I think you have said as much yourself during the course of your evidence, that you have had a relationship with Mrs Mandela as it were and you would have considered a child, so to speak. Would that be a fair assessment of your evidence?

MR MOROBE: A child when?

MR SEMENYA: Sorry?

MR MOROBE: You said I considered myself a child in relation to Mrs Mandela.

MR SEMENYA: I am trying to say you had developed a relationship of a parent/child, that is all I am saying, is that a fair inference I can draw from your evidence?

MR MOROBE: It is a reasonable inference.

MR SEMENYA: In fact, according to my information, in 1976 you together with Seitsi, were held up I think in the American Embassy? Yourself and Mr Cachalia rather?

MR MOROBE: In the American Consulate.

MR SEMENYA: I beg your pardon, American Consulate, yes.

MR MOROBE: In 1976?

MR SEMENYA: Whatever the date, were you and Mr Cachalia were held up in an American Consulate?

MR MOROBE: We were not held up in a consulate, and Mr Cachalia was not there. It was myself, Valli Moosa and Vusi Khanyile.

MR SEMENYA: Yes. And are you able to tell us who facilitated your exit from there to a safe place?

MR MOROBE: Exit from where?

MR SEMENYA: From the consulate?

MR MOROBE: To where, to a safe place?

MR SEMENYA: You can tell us, where did you go from the consulate Mr Morobe?

MR MOROBE: I went home.

MR SEMENYA: Had you go to the consulate seeking asylum there?

MR MOROBE: After our escape from prison, we found our way to the American consulate and sought refuge.

MR SEMENYA: And from there you just went home?

MR MOROBE: From there we went home. We were in the consulate from September, 13th 1988 until we were subsequently let off after about 37 days. We spent about 37 days there.

MR SEMENYA: The point I am trying to make is are you excluding that Mrs Mandela had something to do to facilitate your going home?

MR MOROBE: That she had something to do with facilitating our going home? I am not aware of it.

MR SEMENYA: You are not aware? Am I correct though that after your release from prison, you went and visited her in Brandfort?

MR MOROBE: Yes, I did.

MR SEMENYA: And that was in the nature of your relationship to relate that way, I believe?

MR MOROBE: Yes.

MR SEMENYA: Now, all of these questions really are merely intended to establish that it would seem to us that you had a relationship with Mrs Mandela that was very cordial? Is that a fair statement to make?

MR MOROBE: I suppose you have to put the times relating to the cordiality of that relationship.

MR SEMENYA: That is now pre the statement calling for democratic formations to distance themselves from her?

MR MOROBE: Yes, I think pre that statement I was a leader in the United Democratic Front and the mass democratic movement. And Mrs Mandela was one of the people that we all know, she was a significant figure in our movement and I think we had a great deal of respect for her.

&#9;There were times where in the height of our struggle, lots of things began to happen like I outlined in the statement. And my relationship then, I think at that point, in the early days there was a really mentoring situation between myself and Mrs Mandela, when I was still at high school.

&#9;But I think that the level of political relationship developed over time, and I think in the 1980's in particular, it tended to be very strongly political and there was less of the personal relationship between us, there was more of a political relationship.

&#9;And even where one had to go to Brandfort for example to pay a visit, it was a recognition of the fact that this was someone who has been removed from the situation and we had to continue to pledge our solidarity with them, and I think that is how we had our respect for Mrs Mandela.

&#9;And right up to the time of the statement, but remember at the time of the statement, we have had state of emergencies that had been declared, we have had detentions, we have had arrests, we have had a significant amount of dislocation that happened.

MR SEMENYA: What I am trying to establish is there was nothing to bar you from raising the concerns you would have had, to her directly, is that correct?

MR MOROBE: Well, on any other matter, but in relation to the matters under interrogation at the moment, there were structural ways in which these things were handled, our future was part of, so I didn't necessarily have to deal with Mrs Mandela directly.

MR SEMENYA: No, I accept that structurally you were not obliged, I am saying given your relationship, there was nothing to stop you from doing it if you elected to?

MR MOROBE: No, no, there wasn't.

MR SEMENYA: I have no further questions.

CHAIRPERSON: Mr Richard? Will you just identify yourself for the benefit of the witness please?

MR RICHARD:&#9;I will, Mr Morobe, Mr Cachalia, my name is Toni Richard, through the TRC, I have been instructed to represent Mr Jerry Richardson.

&#9;Mr Richardson, is represented in both these proceedings and in his amnesty application, and it is also correct that you know that my client in his applications for amnesty, has confessed to human rights violations of the most horrific nature, such as the Stompie killing, which he is serving a life sentence for, and for other killings such as the Sono and Shabalala killings, for which he has never been prosecuted and if he had not revealed and confessed, the mystery still would have prevailed.

&#9;I think I am going to ask Mr Morobe this question first. You have heard what our colleague Mr Cachalia has said, do you associate yourself with what he has said in his submission?

MR MOROBE: Mr Cachalia's submission, as you would have noticed from the submission, they are quite different in some respects, because he also expresses his own views in terms of how these events actually affected him, and I think I have no reason to belittle those feelings and those sentiments expressed. I think that they are reasonable under these circumstances, having worked with Mr Cachalia all along, and I know that he is not saying them with any disrespect or disregard for anyone's integrity.

&#9;So in general, I do associate myself with them.

MR RICHARD: There is a distinction, you are a Soweto born and bred person and you lived in Soweto during the period in question and when Mr Cachalia, and for that matter, anyone of us on this side, speak on the events surrounding the Football Club, we speak on information received, but you speak from your own experiences, as a resident of the area, correct?

MR MOROBE: That is correct sir.

MR RICHARD: Yes. (Microphone not on) That I can proceed to say that the personality and persona of Mrs Winnie Madikizela-Mandela is a person who in that community, commanded a very significant degree of respect and or authority?

MR MOROBE: Yes.

MR RICHARD: And the community at large, regarded her as a political leader whose wishes and instructions and desires and opinions were to be taken with the utmost seriousness?

MR MOROBE: I think people generally took Mrs Mandela seriously.

MR RICHARD: Now, in Mr Cachalia's submission at page 2, paragraph 6, an outline is given of the Detainees Parents' Support Committee and the lot of the youth in Soweto at the time. And without going into a debate on it, would my statement that the description set out herein is a description of the origins of what has been termed the lost generation?

MR MOROBE: Not necessarily the origins, I think the lost generation concept would be encapsulated in that description.

MR RICHARD: Thank you. Now these displaced, traumatised, disrupted individuals and youths and young adults were in fact the personalities and type of people that landed both in the Methodist Mission House and at Mrs Mandela's house, looking for accommodation, sanctuary?

MR MOROBE: I will agree with that. I think I have alluded to that fact in my statement, in my visitation yesterday.

MR RICHARD: Thank you, that is why I repeated it to you. Now, at paragraph 6, a description of the lawless indeed, anarchical gangs, groups, bands of young people is given and indeed, some of those might well also have landed at either of the residences, whether it be the Methodist Church or Mrs Mandela's, or any of the other places of sanctuary?

MR MOROBE: That is correct yes.

MR RICHARD: And mixed in them would be in the nature of things, bona fide and loyal and well trained MK cadres as well as others who are doing their best simply to keep what is left of their lives, together?

MR MOROBE: I won't be able to respond in relation to bona fide and well trained MK cadres, as to whether they were part of those groups, I wouldn't know.

MR RICHARD: The next one is these places would also attract what were called ... (intervention)

CHAIRPERSON: One minute left.

MR RICHARD: In this regard Chairperson, I have a number of questions and I have been very patient in listening to Mr Semenya. 

MR JOSEPH: I will give Mr Richard some of my time.

CHAIRPERSON: All right.

MR RICHARD: Thank you Chairperson. There might well also have been infiltration amongst the individuals staying at either house? Correct or not correct? Either person can answer the proposition?

MR MOROBE: As we now know and also as we would have suspected at the time, those things did happen.

MR RICHARD: Now, at the time particularly after the event of the 9th of November 1988, is it not true to state that there would be a high degree of paranoia, suspicion, fear that there was an informant, a spy in the Mandela house? The 9th of November being the shooting of Mr Richardson's house?

MR MOROBE: Yes.

MR RICHARD: Now, if we go back a year before that, to the 16th of June 1986, really two years or so, where the famous "With our matches" speech was given by Mrs Mandela on the East Rand, to the ordinary person involved with the struggle at whatever level, would it not be true that in the minds of those ordinary, and I will use the word very loosely, soldiers, supporters of the struggle, that that was a mandate to kill informers, spies, impimpi's?

MR MOROBE: It is possible, you know when you give speeches, there is actually you can either be literally or expressive or just - you know, so one then has to interpret that, so in a sense in that kind of environment, that interpretation is one of the most probable ones that you can attach to the comments.

MR RICHARD: And, I know that at the period of November 1988 to January 1989, you were out of the country and neither of the two witnesses were directly involved in the events, but I put it that from your experiences, information and deductions, Mrs Mandela was in charge of the people at her house?

MR MOROBE: My sense of the events, even not having been around at that time, it was her house and I presumed she was in charge.

MR RICHARD: Now, do you think it is possible that in the circumstances, she could dissociate herself from the most unfortunate sequence of killings and of human rights violations associated with that short period?

MR SEMENYA:&#9;Chairperson, I don't know whether the witness is being called to speculate on our state of mind, on my client's state of mind?

CHAIRPERSON: I am not quite certain.

MR RICHARD: From my learned colleague's questioning over this week, there is an intimation that what happened was somehow the product of the activities of Ms Falati and my client. Well I have been at pains with other witnesses to question whether that is a reasonable possibility and so far the evidence has been that that is not a possibility.

&#9;And I am putting it to these two witnesses as well. I won't be much longer.

MR MOROBE: Obviously I will fear myself to go into a speculative trail on this one, except to say that my account yesterday indicated that much of our information, certainly when I came back, was in fact - came from the Crisis Committee, who used to interact with Mrs Mandela on these issues. So to the extent that one can actually intimate anything, it is only in so far as the Crisis Committee reports indicated that Mrs Mandela was part of the process of trying to resolve the crisis they were dealing with.

&#9;Given her location and also proximity to the events that were happening.

MR RICHARD: I am going to ask a leading question, and I will put it more neutral. Would you believe that the killings of Lolo Sono, Shabalala, Stompie Seipei, Cookie Zwane amongst the others, that my client has applied for amnesty for, could possibly be politically motivated and serious human rights violations?

MR MOROBE: What was in the minds of those young people, Chairperson, it is difficult for me to tell.

MR RICHARD: I think that is as fair an answer as I can get.

CHAIRPERSON: Mr Richard, you have finished?

MR RICHARD: I am checking my notes. I have many more questions, but I will leave them to the amnesty application, this is not the amnesty application.

CHAIRPERSON: Yes, thank you very much.

&#9;Mr Joseph? You will get half your time, because in your generosity - okay, go ahead.

MR JOSEPH: Trust me. My surname is Joseph, I represent Katiza Cebekhulu and Emma Nicholson. Mr Cachalia, page 2 of your report, paragraph 6.9 and 6.10, my learned friend, Mr Semenya, questioning you, you conceded what is the obvious that this is not something of which you have personal knowledge.

&#9;Would I be fair in suggesting that you arrived at these conclusions and the inferences, these opinions, based on your mature consideration of facts and circumstances that you were aware of, that were communicated to you by reliable sources?

MR CACHALIA: Yes, there is a leading question if ever there was one, but I accept that.

MR JOSEPH: You accept that? No further questions.

CHAIRPERSON: Mr Elly?

MR UNTERHALTER:&#9;I act for the Sono family, the Shabalala family and then the Chili family. Mr Cachalia, am I correct in thinking that you played a role in arranging Mr Sono's visit to the National Commissioner of the Police during 1995?

MR CACHALIA: I may have, but I can't remember.

MR UNTERHALTER: In your work, either in UDF structures or in the Ministry of Safety and Security, have you ever received credible information to the effect that either of Lolo Sono or Sibuniso Shabalala were police informers or operatives?

MR CACHALIA: No, but a simple yes or no would be inaccurate. I am not a police officer and I don't work with the Police operations. Ordinarily I don't come across intelligence, I don't deal with intelligence so, if I say no to you, it would be a useless answer.

MR UNTERHALTER: And you are going to say no, you say no? You haven't come across that?

MR CACHALIA: I don't come across it ordinarily sir.

MR UNTERHALTER: You imply that given the kinds of activities which Winnie Mandela was the centre of at the time, it was strange that the Police did not do more to reign her in?

MR CACHALIA: Yes.

MR UNTERHALTER: And did it seem that Winnie Mandela herself was somehow immune from Police attention?

MR CACHALIA: This is a difficult one, it wasn't so much the question of her immunity. I have no doubt that there was a lot of attention, the question is what the Police strategy and tactics were in relation to Mrs Mandela.

&#9;Did they want to use what was happening around the Mandela home to discredit our President when he was released? I mean there were a million agenda's. I am not even going to begin to enumerate them, but I will say that the police played very close attention to what was happening with Mrs Mandela and the Mandela home.

MR UNTERHALTER: And it was surprising that nothing happened despite that attention?

MR CACHALIA: Yes, well I mean in the old days, in the days before that, if there was a vague sense that there was a banned book in Mrs Mandela's home, let alone an arms cache, Mrs Mandela would have been prosecuted and dealt with severely. By 1988, 1989 that wasn't happening, we were running away, we were trying to keep our organisations alive.

&#9;But yet there seemed to be this kombi driving around Soweto with Mrs Mandela in it, and nothing was happening, so yes, it was difficult to understand.

MR UNTERHALTER: Persons in the Mandela household, were responsible for serious acts of criminality and murders. Including one of the Chili relatives. Do you think that if the Police had paid more attention, and the kind of attention they should have paid to the activities taking place in Winnie Mandela's household, if we had lived in a civil society at that time, the Police would have been able to put a stop to her activities?

MR CACHALIA: Well look, this is difficult and I want to balance it. I think in a sort of normal society, all right, the police must act, they must act properly, they must deal with witnesses.

&#9;I do understand at that time, that the one difficulty that let say the good guys in the Police, the one difficulty that they would have had was to get credible witnesses and those who were credible, they were going to be people in the pre-1990 who were prepared to give evidence, so I have no doubt that say among the good cops, the Attorney General, that would have been a consideration, getting credible evidence.

&#9;On hindsight and reflecting, I am not sure that the Police did everything they could in every case to deal with the problem. But that is just the sort of ex post facto sense that I have.

MR UNTERHALTER: Do you think that some blame can attach to the Police for failing to act against Winnie Mandela at the time when they should have acted?

MR CACHALIA: It is difficult. You are asking me to make a proposition. I would say they could perhaps have done a bit more, but where the scale tilted and really when you are asking me as a general proposition, you have to talk about it almost case by case.

&#9;It maybe in one case that they owed a greater responsibility, it maybe in another case that they did everything properly. So it is really difficult for me to say that as a general proposition.

MR UNTERHALTER: When persons were detained during the 1980's without access to the court, wasn't it the convention to call for their immediate release or that they be charged?

MR CACHALIA: Well, I think that, you know in the very early days, if you like, and I can't remember now the time periods, I see some of the Detainees Parents Support Committee are here, so they would be able to help me.

&#9;Initially the demand was charge or release.

MR UNTERHALTER: But immediately, do it immediately?

MR CACHALIA: Yes, it was immediate charge or release, but as in a sense the struggle intensified, our view was not charge or release, we don't want to be charged and go to your courts, our demand was an unconditional release. So that changed.

MR UNTERHALTER: But the point was that you called for the person to be released immediately?

MR CACHALIA: Yes.

MR UNTERHALTER: If a person committed a gross human rights violation in the past, but failed to apply for amnesty, would you have a problem with such a person being charged in a criminal court today for his or her crime?

MR CACHALIA: It is not a question of a problem. I think there is a obligation for the law to take its course, so the law must take its course. How can I have a problem with that.

MR UNTERHALTER: Legally the law must take its course, but morally?

MR CACHALIA: Morally, the law is the law and I am legally and morally obliged to uphold the law. I assume that the law has a moral basis so it must happen.

MR UNTERHALTER: Thank you, no further question.

CHAIRPERSON: Thank you. Please identify yourself.

MS GERNTHOLTZ: Mr Cachalia, my name is Liezl Gerntholtz, and I act for Bishop Verryn. I have just one question for you. You say in paragraph 10.3.6 of your statement that Paul Verryn was framed. 

&#9;Who in your opinion framed him?

MR CACHALIA: It is very clear to me that there was a conspiracy to frame Paul Verryn. Who all the people were, I cannot say, but I have very little doubt that if you like, in my own mind, I think that the people who are chiefly responsible for what happened to Paul, was Xoliswa Falati in the first instance and Mrs Mandela in the second instance.

MS GERNTHOLTZ: Thank you Mr Cachalia, I have no further questions.

CHAIRPERSON: Mr Kades?

MR KADES: Mr Cachalia, I am Norman Kades, or behalf of the Asvat family. Mr Cachalia, the statement of the 16th of February 1989, by the mass democratic movement is based very largely on, it is motivated by the activities of Mrs Mandela and her Football Club?

MR CACHALIA: That is correct.

MR KADES: Now, apart from information relating to Mrs Mandela's activities and her Football Club, you are aware that the late Dr Asvat was murdered on the 27th of January of 1989, approximately two or three weeks prior to the making of the statement of the 16th of February?

MR CACHALIA: Yes.

MR KADES: Was the death of Dr Asvat and rumours that were floating about at the time, concerning who had committed that murder, also a matter that you took into consideration in making this statement on the 16th of February and did you in fact have any information concerning the murder of Dr Asvat at the time?

MR CACHALIA: I don't, Mr Morobe can speak for himself on that, I think all I remember, I had no specific information, but the one thing which was strange to me and I don't know whether that had some bearing on what I brought to bare on the statement, but Mrs Mandela's statement that she had apparently issued two days later, I think it was on the 29th?

MR KADES: The 29th, in the Star?

MR CACHALIA: Which said that she knew exactly why Dr Asvat had been killed, until then, I would have been too scared to even think that Mrs Mandela who was really a close friend and even comrade of Dr Asvat, would have been involved in anything like that, and I guess the first doubt in my mind was when Mrs Mandela herself said she knows why he was killed.

&#9;Which meant that there was now some connection between the killing and not Mrs Mandela, but Mrs Mandela's knowledge of events. And somewhere at the back of my mind I assumed that was a factor, but let me just say that when we drafted the statement, it was very clear to us that there was nothing concrete that we could directly or even by inference, take into account, in relation to the Asvat death.

MR KADES: Well, the statement that you refer to is that of the Sunday Times on the 29th of January 1989, Mrs Mandela is alleged to have said Dr Asvat was the only professional witness to back my story that the boys allegedly to be kept against their will in my house, were in fact victims of abuse. I gave them shelter, as is my duty as a social worker.

&#9;Did you not follow up, did you not make enquiries concerning that statement and the startling statement of Mrs Mandela that you had previously (indistinct)

MR MOROBE:&#9;No, certainly from the point where we are coming from, myself and Ahzar, we did not make that kind of follow up because we call that in so far as the events surrounding the Football Club and Mrs Mandela, there was a Crisis Committee that was tasked with the responsibility and that at that time for us to make that statement there were no clear connections initially, in spite of the statement, that still concerned us, but it was not really the main focus of our consideration when the statement was made.

MR KADES: Since that date, has any information reached you that would be of any consequence to point a finger in any direction in so far as that murder is concerned?

MR MOROBE: No sir.

MR KADES: Thank you, I have no further questions.

CHAIRPERSON: Thank you. Mr Kuny?

MR KUNY:&#9;Mr Cachalia, I act for Ms Falati. I just have one question which I would like to follow up with you.

&#9;What basis do you have for believing that Ms Falati was involved in framing Bishop Verryn?

MR CACHALIA: It is clear and I would be surprised if your client hasn't given you these instructions, that Ms Falati spoke to Mrs Mandela about Verryn. That Ms Falati was in the manse and Mrs Mandela was not in the manse, and if you like, the information that came out of the manse, would have had to have come from Ms Falati and that is my understanding of what happened.

&#9;Whether she was the dominant figure or the secondary figure, that I can't say, but she was involved in the disseminating information.

MR KUNY: &#9;Have you read Katiza Cebekhulu's book?

MR CACHALIA: You mean Fred Bridgeland's book?

MR KUNY: I beg your pardon, the book in which she describes his account of various incidents?

MR CACHALIA: I can best say that I have skimmed it.

MR KUNY: Because in that book, he doesn't implicate Ms Falati in the framing of Verryn. His evidence in that regard, at least his account implicates Mrs Mandela, but not Ms Falati.

MR CACHALIA: Yes, I recall reading that, but I am not sure that Mr Bridgeland is correct.

MR KUNY: Were you here when Ms Falati gave evidence?

MR CACHALIA: Yes, I was.

MR KUNY: Do you recall that she said that she described two incidents in her evidence, one being the fact that she had noted a certain change in Katiza Cebekhulu's behaviour and that she had approached him in this regard and he had made certain allegations of molestation to her?

MR CACHALIA: I do recall that, yes.

MR KUNY: And secondly she referred to an incident where Stompie had alleged that two of the boys had tried to feel him up?

MR CACHALIA: Yes, I remember that vaguely.

MR KUNY: And her evidence was that she was concerned about this. She said that homosexuality in a community, in her community was regarded as an extremely serious, and she felt obliged and bound to take what she had, what was conveyed to her, to Mrs Mandela. Are you aware of that evidence?

MR CACHALIA: Well, I am aware of that. In fact it is almost that evidence from my point of view, her strong feelings around homosexuality, made her feel that she needed to campaign against Paul Verryn.

MR KUNY: Well, were you aware of the fact that there was still, that Cebekhulu slept with a knife and that she feared that if there was any truth in these allegations, that Bishop Verryn may have been in some sort of physical danger?

MR CACHALIA: How do I answer that?

MR KUNY: Well, there was evidence in this regard?

MR CACHALIA: So, what are you wanting me to say about it?

MR KUNY: I am saying to you that you have made a statement that Ms Falati framed Bishop Verryn. I am putting it to you that she took a situation which she believed that she had a responsibility, based on what she knew, to Mrs Mandela and that she says arising out, she was surprised at the assault which took place at Mrs Mandela's house on the day that the young men were abducted.

&#9;I am challenging your statement that she framed Bishop Verryn.

MR CACHALIA: Right, Mr Kuny let me say this. What I do find and this is really what the Commission should find, I find it extraordinary difficult to accept that Ms Falati was merely the passive courier of information to Mrs Mandela. Mrs Mandela heard the information, Falati then retreated and Mrs Mandela ran an operation. That didn't work that way.

&#9;If those are your instructions with respect, I think they are wrong.

MR KUNY: Why do you say that they didn't work that way?

MR CACHALIA: I am not sure that I can take it much further, but given at that point the relationship between Mrs Mandela and Ms Falati, that there would have had to have been an involvement of both of them, this was not one person involved in this.

MR KUNY: What was their relationship? Do you know how long they had known one another for?

MR CACHALIA: Well, at that point they had a very close relationship. 

MR KUNY: How do you know that?

MR CACHALIA: On your client's version. She was my leader, she said, she was my comrade. I mean she went on and on about that. You should know that.

MR KUNY: She indicated that at the time she took the information to Mrs Mandela, that she had not - the import of her evidence was that she had not at that stage had a close relationship with Mrs Mandela, but that she regarded Mrs Mandela as a figure in the community, someone who was a leader and someone who she felt could deal with the problem.

MR CACHALIA: All right, well that is a proposition. I find it difficult to accept, but I can't give direct evidence on that.

MR KUNY: No further questions, thank you.

CHAIRPERSON: Dr Fazel?

DR RANDERA:&#9;Chairperson, my first question is to Mr Cachalia and the other three are to both of them. My apologies.

&#9;Mr Cachalia, I think I mentioned yesterday to Rev Mbangula, a document that I think Peter Storey prepared of Rev Verryn again, that there were rumours circulating in October long before the abduction of the young people from the manse, were you aware of that rumour?

MR CACHALIA: I was not aware of the rumours until January, early January when the whole thing happened. So the rumours between October and December I had no personal knowledge about.

DR RANDERA: Let me say as far as the other three questions go, let's take it as accepted the difficulty ... (intervention)

MR CACHALIA: Are you coming to me or ...

DR RANDERA: Both of you. The conditions under which you were working and everybody was working at that time, was very difficult. What I am trying to understand is that the rumours were circulating. I think Mr Morobe said that it was thick with rumour in Soweto at the time.

&#9;Now through the structures, and I am referring particularly to the Mandela United Football Club, through the structures that you two were leaders of, besides the intervention that took place at the time of the burning of the house, did you at any time attempt to either verify these rumours or make any interventions yourselves?

MR CACHALIA: No, look not all of it was rumours, there were some, for example some court cases at that time. The one I refer to, I referred to yesterday, the battery acid case, it was something that actually had happened, and it happened in the Mandela home.

&#9;So what I am saying is that they were not all rumours, there was fact and there was fiction. As far as approaching Mrs Mandela directly is concerned, no, I didn't unfortunately.

MR MOROBE: On that question Mr Chairperson, one of the things I actually would mention in this regard is that when I mentioned in answer to an earlier question about the existence of structures to try to deal with certain instances, when issues arose, but even if there was no formal decision or committee meeting that said there is this meeting, Rev Chikane at some point, took an initiative. rev Chikane was a respected member of our community. Rev Chikane was a member of the executive of the United Democratic Front in the Transvaal at some point, and then the other members of the committee where in fact senior members of our organisation.

&#9;So for us, because our organisation at that point were either banned or we were operating in sub-divides underground, people were restricted to their homes, some of us were in jail, in the way that things happened was because you still had some element of collective leadership around, people were able to get engaged in trying to deal with this issue, and for us it was easy, in fact it was actually the right thing to do to be fair, in fact enquiry on this matter to that committee and that is why even their own assessments were taken very seriously.

&#9;Because we accepted their bona fides and integrity.

DR RANDERA: Mr Morobe, I accept that, but what you are referring to is October 1988, when Rev Chikane gets involved in the situation. What I am understanding from both of you, from your statement, is that there were rumours circulating and I take what Mr Cachalia has said, long before that.

&#9;I am just trying to understand why it took you two till October 1988, before that intervention took place?

MR CACHALIA: You know if I can think back myself, I think one of the difficulties, and we must say this quite openly, is that at that point I really did not believe that Mrs Mandela acknowledged or accepted the UDF leadership, the MDM leadership at that point. I did not believe that she would, I mean for example you would hear Mrs Mandela say "I take my instructions from Lusaka", and I just didn't think that in a sense we any longer had the authority, you know, to approach Mrs Mandela.

&#9;I may have been wrong, but that was certainly the impression that we laboured under by the end of October 1988, that our influence with Mrs Mandela would have been tenuous.

DR RANDERA: Mr Cachalia, you are leading me into my question section actually, which is again, it is an impression which I have gained over the last few days.

&#9;You talk about the mass democratic movement, you talk about the UDF structures, it seems to me at that time people were not elected into those positions. I think both of you have said that Mrs Mandela was very much part of and seen as a leader in society at the time, but I think, you can correct me, but yesterday you even said that the Mandela United Football Club could be considered to be part of the structures at the time? But the impression I come away with is that there was - on the one side there was the structures that you and Morobe are referring to and on the other side, Mrs Mandela wasn't part of this. And yet she was seen to be a leader, why was she not integrated, or why was she not integral to the structures of the UDF or the MDM at the time?

MR MOROBE: There is a history to this development Mr Chairperson, and this history has to do with the way in which our struggle unfolded. 

&#9;The whole question of the relationship between the underground formations and those who operated at an open level. So there were certain lines that had to be bled for obvious reasons from the point of view of security. Now only to the extent that you wanted certain things to be done, you could only ask and enquire so much. In fact there was a term in those days that said, ask no questions and be told no lies.

&#9;But it basically had to do with the fact that you only needed to know what was relevant for what you had to do, especially where you begin to engage the elements of the struggle. That had to be secured from obvious in fact interest from the Security Police.

&#9;Now, those things obviously do create significant tension in terms of the ways in which people want to relate to one another, how do you go, if you know that there are people in Mrs Mandela's place, you know, either those people are people who belong to your former structures, or people who probably come from the underground, and you wouldn't want to go and interfere in that kind of thing, because you have obvious fears that you might end up getting caught in things that don't really have to do with what you want to achieve.

&#9;So those things create those tensions and those fears that people tend to have about how far to make certain enquiries. That is the environment we are functioning in, so to the extent that Mrs Mandela was not necessarily a part of the structures, the official structures are the elected, in our definition of the mass democratic movement, it was a broad definition, because at the core of it, were the organised formation's attempts of the UDF and Cosatu, but it was defined broad enough so that as a movement you actually tried to pull people in behind a particular common objective.

&#9;Now, in that situation, you have seen a river in torrent, it drags along everything along with it, you know. And you've got no way of clearly defining exactly who everyone is who are coming into the stream, so we hoped to be able to clarify that by the time it get to the leadership point of view.

&#9;So depending on how far you were, people tended to take certain actions as well, that would not necessarily accord with the core and heart of what the movement stands for. So those things do happen and I think that the statement relating to boxes of matches and petrol bombs etc, is one case in point, where I think the movement had expressed an opinion that it doesn't accord with our sentiment of how we want a justice struggle, particularly from a leadership point of view.

DR RANDERA: My last question is related to the statement that was released in February 1989. You two seemed to have become centrally related to that statement, although both of you said that both Elija Pahai as well as Archie Gomede, were involved in the making of that statement, but we also heard yesterday about the Crisis Committee and how the members of the Crisis Committee came from the mass democratic movement.

&#9;When making that statement, were they also party to that statement, how wide was that statement, did it come from a few people?

MR MOROBE: At the time of the making of the statement, I mentioned in fact in my input yesterday, that people were at the end of their tether in terms of this particular problem. We have just had the pronouncement and confirmation of Stompie Seipei as being in fact the person whose body was discovered, now the tension has begun.

&#9;At that time also my recollection is that even the Crisis Committee had begun to throw its arms up in the air, in despair at not being able to resolve this issue because of the reports surrounding even the Football Club, because the youth congresses, they were saying they were sick and tired now of this thing and they are going to engage with the Football Club and for us, we had to make a very quick decision how we go about resolving this issue.

&#9;On that evening, the evening of the 15th, there was actually a meeting at Ipeleheng in (indistinct), where this issue was discussed, where people had come together to say, I think the 15th was the day after the Stompie body confirmation.

&#9;Now, we then had to make a decision because I mean, as I say that we had all the role leadership responsibility, assessing the situation and the mood, and the one thing we couldn't afford at that time, was to have a situation where amongst our own people, or people who have believed that they are in the same movement, to end up in conflict, precisely because one of the things people were saying was what is the leadership doing, why can't it do something about its problems?

&#9;You know, we needed some direction, what is going to happen? Now, the question is what do you do at that point in time, because our assessment then was that having isolated the (indistinct) at least as we perceived it then, has been around Mrs Mandela, having got hold of the reports from the Crisis Committee, etc, and for us in fact at that time, taking a look at it politically, it was clear I mean if one looks at all, I mean in our statement, nowhere does it suggest that Mrs Mandela, did this to Stompie or did that.

&#9;We actually talk about complicity. Now it was difficult for us to cast any direct evidence. Now, you would tell me if in all of these events that were happening, around her homestead, you would need to have been, even Rip van Winkel I think, would have woken up. 

&#9;Now, the point for me is that we took the decision because we felt there was a sense in which someone in a responsible position, could have done something and for us then, it was an incisive and decisive decision. It had a shock element in it as well, because of the person involved and I think that it was also meant to convey a message down stream, that at least our movement can take its position on these matters, even if the person involved is in fact of a senior disposition.

DR RANDERA: Mr Morobe, just one last. Is it fair to assume the fact that Elija Bagai put his stamp of approval to the statement, that he was speaking on behalf of the Trade Union movement or was he just speaking on his own behalf?

MR CACHALIA: Mr Chairperson, it is fair to assume that - it is a pity Mr Bagai is no longer with us - but it is fair to assume, in fact in my estimation and in my recollection of events, in fact it is a correct reflection that he represented in fact the labour movement, because even the Cosatu shop stewards were quite significantly involved in the issues at the Dobsonville meeting and subsequent encounters, around this issue.

&#9;Even before the statement issued, there was a time problem obvious, in terms of having to move fast, but in the way in which we operated, we were able to actually round up most, in fact, of the leadership of the mass democratic movement organisations, in and around the PWV area even at the press conference where this statement was presented, they actually were there.

&#9;They were not with me on the podium, but they were part of the presentation of the statement, hence even in the subsequent period, the United Democratic Front which were able to convene secretly, was able to endorse that position.

DR RANDERA: Thank you very much.

CHAIRPERSON: Thank you.

MS HASSEN: Thank you Chairperson. My first question is directed towards Mr Morobe, it is about what you say in number 9, where you say however, amongst some of us in prison at that time, serious reservations were being expressed about whether the Mandela United Football Club would be able to maintain direction.

&#9;I was just interested in this whether there were issues which you were of concern, it came as a contradiction, especially from you having had confidence in the leadership of Mrs Madikizela-Mandela?

MR MOROBE:&#9;Chairperson, Diepkloof prison was in the context of the state of emergency, was a meeting point of activists of all over, you know the PWV who got brought there to be detained under the state of emergency.

&#9;And there were many of the young people that came from some of these areas, and these issues were discussed. In fact the question of the team, because as I mention that one of the things we used to do was to have political discussions, to actually evaluate a lot of things including amongst other things, the question of initiatives like this, which arose in our discussions and the point here I am trying to make, is that it therefore becomes of interest. 

&#9;I said that an initiative like this is to be welcomed, because you always think what are the best ways to organise young people and we have found that amongst other things, it is sport, recreation, etc, so the notion of a Football Club is fine, but this was clear that this became a notion of a Football Club which eventually turned into something more than just the playing of soccer.

&#9;Now, the question for us was who were these people who were in the Football Club? You know, what structures did they belong to, because as things turned out later, there were actually conflicts even between them and members of the youth congress in the area.

&#9;So now those in fact were real concerns that we had established out of our own understanding of how the structures and the situation arise and how it is important to constantly find ways of trying to integrate them and make their own conduct consistent with that of the movement.

MS HASSEN: Thank you. The second question - I won't mind if you can also respond to it - but I will be happy, it comes from Mr Cachalia's statement, that is page 2.

&#9;Where you say by mid 1985, you have described as narrow as to what was happening there, you talk about young people, how they formed groups of street patrols, hunting down other trouble makers and hooligans and vandalism, basically you have described young people who were survivors or victims at the time, but who had survived, and then you end up by saying all the township residents were horrified by the disorder and the challenge to their authority by these young thugs.

&#9;I am just interested in that, as a person who as you said, who have always been, especially at this time, you are a human rights activist, many people as you would know, have struggled as to how to label the behaviour of the victims of the apartheid system, from the children’s' rights movements, the youth formation under the leadership of Sheila Sisholepe and many conferences, book have been written by people like (indistinct), and many others, people have struggled as to how to name the victims of the apartheid system, and here you just refer to them as youth thugs and I am interested in your reaction on that.

&#9;For us the relevance of this is that we have a section where we have looked at children and youth, we have had special hearings on that.

MR CACHALIA: Can I just explain that, if you look at 6.9, I am saying that a commentator described it in the following way. I would use perhaps a bit more sensitive language, but the situation in the community, you had in the late 1980's, and this was happening not only in Soweto, in different parts of the country, we began to get very worried, there were people's courts springing up, people were being sjamboked at KwaMashu and the Eastern Cape, I mean things were getting bad.

&#9;We were feeling that can we control the situation any longer, can we direct the struggle? So in a sense what happened is the more responsible people in the community, the older people, began to take a step back and here you had these groups of brutalised people who were beginning to inflict some of the pain that they have learnt, torture methods, used on themselves in jail.

&#9;They come out and started repeating what they have learnt. So I think that is what I am trying to capture around what was happening, but yes, there were children.

MS HASSEN: Okay, I accept your explanation, but I had problems with that because really, many people who worked closely with those children, didn't see them as thugs. They felt we had a moral obligation to understand where they are coming from.

&#9;Then in 6.10, that is the third question, you refer, you say this was the climate in which Mrs Mandela created her own personal vigilante gang, Mandela United Football Club. I am very much interested in your opinion, both of you, as people who worked closely with young people at that time. I have been sitting here, really with interest because it has got implications for our Commission work, the majority of people who have suffered are young people, whether you look at it by years or by age, as to the vigilante groups became a national phenomena. In Pietermaritzburg, at a certain point, it was said they are (indistinct), but they were there, all over, and they did exactly the same thing. I wanted just to understand here, you know, how did this differ? There is a question in the Section 29 which look at the formation, and that for me hasn't been answered.

&#9;As to how did these, the 6.10, which you referred to them as Mrs Mandela's personal vigilante gang, you said you worked with Mr Sithole from Natal and then other UDF people, how were they unique?

MR CACHALIA: Sorry, who said that?

MS HASSEN: I should think it was Mr Morobe?

MR CACHALIA: I think you are referring to Mr Gomede?

MS HASSEN: I am sorry, I didn't want to say Archie, that is why I am confusing the name, Mr Gomede, so it is like you have a national picture, but how did this differ from what other young people were doing in other areas?

MR CACHALIA: Chairperson, the notion of a vigilante invariably it starts around a certain specific issues that concerns, it could either be an individual or a group of people, and that they think that the way to deal with it, is to act in certain ways.

&#9;Now, in certain instances there are noble reasons for why people do the things and organise themselves in a certain way, but in the nature of the environment through either infiltration by the Security Police, you then have a situation where especially where there is a significant lack of political direction and infusion, into that group in terms of what their main focus is, they then slowly degenerate and become an entity that starts fighting, even against the community, within which they are in fact located.

&#9;Now, for me, the question that arises in terms of your question, is the relationship, because if you look at the Witdoeke, you know in the Cape and if you look at Ama Africa and all the others, at some point it became part of the government strategy to actually create those kinds of forces because they then exploit some of these small problems in the localities and one of our concerns at that point, has been the extent to which we feared that this particular Football Club, could be turned and actually could become part of that element that the State can use.

&#9;So in a sense what I am saying then, I don't know whether I am answering your question, but to say that the relationship here, it is in terms of the kinds of activities that they began to be involved in, that we reported and spoken about. The fear that the community began to have of this group, was actually akin to the feat that any other community in other parts of the country had fears of vigilante whether they were the Witdoeke or the Ama Africa.

MS HASSEN: And the last question Chairperson, really it relates to the recommendation that you made. Again, looking at it from how young people in particular, got involved at very tender age. Most of them can't even articulate the political context under which they ended up getting involved in gross human rights violations.

&#9;As I have said, most of them have not even applied for amnesty and they killed, they abducted people, they tortured, I don't know how is this going to assist us as a Commission to achieve our goals, looking at it purely from the majority of people who are affected, the youth, that they should be prosecuted?

MR CACHALIA: Well, I mean you raise an interesting question. You know, I think that as we begin to build our democracy, one of the things we have to do, is to assert accountability and responsibility.

&#9;And it may be unfortunate that some people, through no fault of their own, missed the cut off date, through no fault of their own, do not apply for amnesty, but at some point in our history, we are going to have to say that people have a sense of responsibility for what happened. Because if we don't say that, then I think as we go forward, there are going to be many who say well I can do these things, because comrade X or comrade Y did it, and got away with it.

&#9;So, in a sense there has to be a tidying up process, people don't have to go to jail, but there has to be a tidying up process, there has to be a sense of responsibility, accountability and then we move forward.

&#9;I think if it just stays out there, I think it is very dangerous.

CHAIRPERSON: Thank you. Dumisa?

MR NTSEBEZA: Thank you Chairperson. As I think this, I will direct the question to you. And I would like you to assume that I assume your bona fides and your credentials.

&#9;You see, these particular hearings have been identified by the media, as of a nature that will make or break particularly Mrs Mandela, Mandela's political fortunes.

&#9;And in a way, these particular TRC hearings rightly or wrongly, are seen as of a nature that would be used to further this or that other political agenda. I can assure you of course that speaking from this panel, we haven't got a mandate to further anyone's political agenda. But we can't ignore those sort of perceptions.

&#9;And I can tell you that in the course of our having been asked by the ANC and by the President, to investigate the existence or otherwise of spies within the ANC, some of the submissions that we have got, seemed to suggest that there is within the ANC powerful condemning forces and these condemning forces are struggling for dominance.

&#9;They were identified in opinion form, on the one hand as Africanists, on the other the white liberal cabal, the Indian cabal. Now, you will appreciate why against that background, it becomes important for us, when you are under oath, and especially in view of the sort of call that you have made, that people who have a record of the nature that you have identified, should not hold public office.

&#9;Now, to the extent that Mrs Mandela is identified for instance, to be in the Africanist group and to the extent that you might be identified to be part of the so-called Indier cabal(?), I think what is very, very important for us, would be to get a comment from you because I can almost see that there would be in furtherance of those submissions that we have, a view that says the real reason that you made that call, and that in fact you came to testify, is because you are furthering the agenda of the so-called Indier cabal for dominance within the ANC and that the TRC hearings, and this particular one, are being used by you to carry out that agenda, that is a perception.

&#9;So I would like you to let us have the benefit of your comments because the call you have made is one we cannot ignore, because it has been made incidentally in various Commissions, by the ANC which have been annexed to their submissions to us.

MR CACHALIA: You know, I don't want to go to talk about details of cabals, I am quite happy to do all of those things. When you are involved in not only a political struggle, but when you are involved in politics, people are going to say all sorts of things.

&#9;It is a ship that goes this way and that way and really if you get upset when people say you are part of this secret group or that secret group, it is almost is to misunderstand the rules of the political game.

&#9;The rules of the political game is that there is a jungle there, and there are a few rules. I have come here to tender my evidence in the full knowledge that there are going to be those out there, who questioned my credentials, who say I am part of an agenda.

&#9;I would be a fool if I don't assume that people are going to say that. I only hope that those who know me, and those who understand me, understand why I had said what I have. And others must be free in the cut and thrust of political debate, to draw their inferences out there.

CHAIRPERSON: Yasmin?

MS SOOKA: I think I have basically two questions. The one is from the evidence of the witnesses that have testified here and both of you could choose to answer, it is quite clear that the Club's activities were taking place over a period of time, but there seems to be two turning points in the whole saga.

&#9;The first is the burning of the Mandela house by the Daliwonga students, and of course the second is the abduction of the boys and of course the subsequent killing of Stompie. Now the recurring theme which runs through the statements that were issued over that time, is that Mrs Mandela should be brought into the structures and brought closer.

&#9;Now, my two questions are why did it take so long for any kind of action to take place, second is why could she not be brought into the structures and disciplined, she was part of some structure, even if it was loose?

MR MOROBE:&#9;The question of which structure had authority over Mrs Mandela, is in fact the relevant question here. Such that the input that we have made, did suggest that the nature of the relationship was not a straight forward one, in terms of where she fell, in relation to the mass democratic movement, in relation to the underground structure, etc. Now there were all those kinds of sensitivities, it might well be that also by not following on these things, we also contributed to a particular perception and notion of a relationship also of either on her part and also on our part in terms of who should actually have the ultimate sanction.

&#9;Now, it may well be asked as to why did it happen when it happened that the Crisis Committee in its report and the ANC in its response amongst the other things it does, allude to is the fact of her not being amongst those structures for purposes of discipline etc. But it is a difficult question because you then come to a point where certain events happen, they prime you to begin to think and do certain things, but the rest before that, there was no real cause to actually do the things that we began to do in 1988 or 1989, in respect of Mrs Mandela, because the relationship, as I said, even in terms of personal relationships, it was a different scenario.

&#9;In the 1980's there were state of emergencies, there was general chaos, so at some point cataclysmic events happened and then they primed everyone to say let's look at this, you know, and then they start acting. Now it is a mood point as to whether was that the appropriate point, at that point or should it have been done earlier.

&#9;Perhaps if you look at it, and if you have to criticise ourselves, we could then say that perhaps they should have been done earlier, it should have worked well for the benefit for the individual in question and also for the movement, for the people as a whole, so it is difficult to say whether that was the right moment or the wrong moment to have done what we did.

MS SOOKA: Thank you. The second question I've got relates to the question which the Commission will have to deal with through its Amnesty Committee, and that is the amnesty applications of the members of this loose formation, the Mandela Football Club. 

&#9;You, I think yesterday in your evidence alluded to the fact that they could also be construed as having been part of the United Democratic Front, and I think the question for us is, how are we going to distinguish between whether that was politically motivated, because could these youngsters, because of the kind or aura and political clout that Mrs Mandela enjoyed, have assumed that the acts that they were doing, were in pursuit and furtherance of the struggle? I think that is the question that the Commission is going to grapple with quite hard, because all of those youngsters will have to establish that to in fact get amnesty.

&#9;Just your comment on that please.

MR CACHALIA: I think some of what you have said, might not be of direct relevance to certain aspects of your work. Now, what I think we have also tried to do is to give you a sense of the climate. Also our thinking as people who were leaders in terms of our observations of the situations.

&#9;In my input yesterday I made a comment about the situation where power relations begin to play a role in the way these people related in terms of influencing them to do certain things and not to do others.

&#9;Now, the task for the Commission, I would imagine amongst other things, would be to try to interrogate, you know, the minds of these people at the time, it is a difficult task to try to go back and try to locate yourself at that point, and try to see what was going through their minds, how did they end up where they were, what was influencing them?

&#9;I think those become factors and to the extent that in their minds, they might have believed that they were doing so because it was in the pursuit of the struggle. I would image that the Commission would then need to weigh that against the balance of probability in terms of the relationship between what they say and in fact the adverse aspects of the fact, their acts could well have been just mere criminal etc.

&#9;The question is where is that link, how do you draw that list? Is it based on the fact that they decide at some point to abduct someone, why did they do it? Now, it is an unenviable task, because I think that there are going to be lots of things that fall in the grey area there in terms of what actually is what now. It is difficult for us to say exactly what it is that you should take into account, suffice it to say that these are the kinds of broad considerations, that I think will have to come into play.

CHAIRPERSON: Thank you. Dr Mgojo?

DR MGOJO:&#9;Thank you Mr Chairperson. May I direct Mr Cachalia, to page 2 of your submission, up to page 3. I need to pose these questions because your submission becomes an official document once it has been submitted.

MR CACHALIA: Yes.

DR MGOJO: You speak here about many rumours which were circulating and you speak of the absence of an independent means of verification, if it was impossible to separate fact from fiction.

&#9;And then on page 3, of your submission, you give us different common themes which reoccurred as a result of these rumours. Maybe the question I need to ask you first, do you associate yourself fully with these things?

MR CACHALIA: Excuse me, I don't understand the question.

DR MGOJO: Do you associate yourself fully with these themes which you have put here?

MR CACHALIA: What do you mean, are you saying that I believe all of these things were happening?

MR MGOJO: That is right?

MR CACHALIA: Not necessarily. You know, if you for example take children had disappeared from the Mandela home. In the pre-Stompie period we had heard that children had disappeared from the home, that parents in the communities in Soweto were saying that they didn't know whether it happened at the Mandela home, so I know about a rumour, but I can't say outside of Stompie, that I was aware that any child had disappeared from the Mandela home.

MR MGOJO: Would you say that some of these things may have the ingredients of facts and some have the ingredients of perceptions? Would that be a right assumption?

MR CACHALIA: Commissioner, I make the point that there were, it was difficult to separate fact from fiction, so if you go to 8.1, 8.2 and 8.3 I am saying that there will be elements of fact and fiction there.

&#9;I don't know where I could draw the line, but yes.

MR MGOJO: Thank you. The language in this context who would be the guerrillas, you speak about he guerrillas?

MR CACHALIA: Guerrillas would be freedom fighters.

MR MGOJO: Was it intentional that you used that word?

MR CACHALIA: Again, if you see, just show me where are you reading from now?

MR MGOJO: It is 8.3? I am saying that was because that was a common word used by the system and then people used to challenge it and say that is a freedom fighters, not a guerrilla.

MR CACHALIA: I am not sure, I think when we would sing freedom songs, we would sing about guerrillas, and when I spoke yesterday, I didn't talk about guerrillas in the sort of neutral angle of......., I just spoke about guerrillas, and I think that is what we referred to ourselves as.

MR MGOJO: Okay, I am not going to debate that.

&#9;Did you mean, were these the MK cadres which were in the Mandela family?

MR CACHALIA: It was certainly my sense that they were sort of trained freedom fighters.

CHAIRPERSON: Ladies, do you know that this is a court? If you come to the court, when the court is in process, how do you just come and disturb, why don't you bring this note after the hearings?

&#9;How could you just bring this note here, could you please leave?

MR MGOJO: No further questions, thank you.

MR SEMENYA:&#9;Chairperson, may I just be indulged, we have already expressed that my client intends to make a reconciliatory contact with Bishop Verryn and Mr Cachalia now says that she framed Bishop Verryn. Can I just take this up I won't be two seconds?

&#9;Mr Cachalia, should I read your statement on page 4 to mean Paul Verryn was framed amongst others by Mrs Mandela?

MR CACHALIA: Yes.

MR SEMENYA: But I mean the word frame must mean to knowingly put false blame with a view to discredit somebody?

MR CACHALIA: Hold on, do you see 10.3.6, I say Paul Verryn was framed.

MR SEMENYA: Yes.

MR CACHALIA: That is what I say there. Why I believe that Mrs Mandela was part of that, was that there were repeated statements made by Mrs Mandela as she was being accused of the kidnapping of the youths, and the death of Stompie, Mrs Mandela repeatedly made public statement saying the real problem was not the youth, the real problem was that Paul Verryn had a "medical problem that needed to be solved". In my view that deflected the attention, the intention was to deflect the attention from the real problem that the youths were abducted.

&#9;I do not believe that there was a bona fide belief at that point, as the statements were made after that incident, that Paul Verryn was guilty of having sodomised the youths. So that is why I am saying it because it has emerged from Mrs Mandela's own mouth.

MR SEMENYA: Now, let's tidy up what I am talking about. I am saying is the word to frame, to knowingly put false blame on somebody with a view to discredit them?

MR CACHALIA: You frame a person is because you want to make that person guilty of an offence, so it wasn't a question of simply discrediting it, it went further.

&#9;Criminal charges were laid against Paul Verryn.

MR SEMENYA: Let's tidy the definition, I want to understand whether we are talking the same thing. Are you using the word frame in the sense of that Mrs Mandela knowing the facts to be otherwise, went ahead and said Bishop Paul Verryn had sodomised the children?

MR CACHALIA: Mr Semenya, you know, there are two if you like, mutually destructive versions here. The one version is that the youths were taken away from the manse, all right, they were brought away for their own protection, stayed in the Mandela home and then left on their own accord.

&#9;All right, and that what happened there, nobody knew anything about. The other version is that they were forcibly abducted, they were then made to make admissions that they had been sodomised, which admissions were made to people in the Crisis Committee. And that Mrs Mandela sat in those meetings where those allegations were made.

&#9;Now, either Mrs Mandela had a direct intention to frame, or alternatively she made statements about Paul Verryn with reckless disregard to the consequences for the man in question.

MR SEMENYA: It might be that it was total disregard, you are using the word that she framed. Now I am asking you are you saying she knowingly said these statements.

MR CACHALIA: ... that the man has a medical problem, where does she get the information that the man has a medical problem?

MR SEMENYA: Maybe she will answer when she gets there, just answer my question with respect.

MR CACHALIA: No, I am answering your question with respect. 

MR SEMENYA: Then please give me the answer, on what basis do you say that she knowingly said those statements when she knew they were false?

MR CACHALIA: I am saying that I infer that from all the facts that are available to me around this case.

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

CHAIRPERSON: Thank you very much. We are very grateful to you and I think many people will have said that the role that you people had played was a very significant one in the struggle, and we thank you very much. Thank you for your generosity with time.

MR CACHALIA: Commissioner, may I make a very brief statement to Mrs Mandela please. I want to say to Mrs Mandela because I have not only known Mrs Mandela for years, I deeply admired and respected her. The Cachalia and Mandela families go back a long way.

&#9;And as I sit here, I am deeply conflicted. There is one part of me which wants to in a sense go over and to hug you and to say let's walk away from all of this because it is a bit of a bad nightmare, but there is another part of me which says that we actually cannot go forward unless there is some level of accountability.

&#9;I don't know in each case, what the level of responsibility of you, if at all, was in some of these cases. But I think that for the sake I believe of your own inner tranquillity, I think it would be helpful for your own relationship with the whole community, if you are able to take, if you are able to bring it within your heart to take the Commission into your confidence when you do finally have the opportunity to testify.

&#9;I want to say this as well, that if there is anything which I have said, factually which is wrong, and which is proved to be wrong after the Commission makes its findings, then I will unequivocal tender that point, a public apology to you.

CHAIRPERSON: I don't know what I - thank you very much. We will take the tea break now, can we come back at twenty past.

COMMISSION ADJOURNS

 

 

ON RESUMPTION

CHAIRPERSON: Ntombeni? Is his lawyer here? We are trying to find out whether you lawyer is here. Hanif, who did you say if his lawyer is not available, who is the next?

MR VALLY: Mr Charles Zwane.

CHAIRPERSON: Mr Charles Zwane.

MR VALLY: I believe he is in custody, so he should be with the ... (intervention)

CHAIRPERSON: Dear friends, can you just try and respect the Chair, especially in the presence of the Deputy Speaker of the House, I want to show her that I can control or you are controllable. Please settle. Good morning Mr Zwane, will you please stand.

CHAIRPERSON: Do you speak English, thank you very much. Welcome.

CHARLES ZWANE:&#9;(sworn states)

CHAIRPERSON: Thank you very much. Hanif?

MS HASSEN: Mr Chairman, if I may just interject here. My name is Hasiena Hassen, I represent Mr Charles Zwane.

CHAIRPERSON: Thank you very much. Do you want to - did you agree about the affidavit and so on and there isn't an affidavit?

MR VALLY: There is a statement that Mr Zwane has made. It should be in your file.

CHAIRPERSON: Yes, I thought Mr Joseph had made a good suggestion about how we might go about this, I don't know.

MR VALLY: Yes, I think in (indistinct) instances, we will simply submit people's affidavits and ask them questions on it. This is not one of those cases I believe.

CHAIRPERSON: Thank you.

MS HASSEN: Thank you Mr Chair. Charles Bongani Zwane, how old are you?

MR ZWANE: I am 27 years of age.

MS HASSEN: And you would like to speak in English, is that all right?

MR ZWANE: Yes, of course.

MS HASSEN: All right, do you have a nickname Charles?

MR ZWANE: Yes, I do.

MS HASSEN: What is it?

MR ZWANE: (Indistinct)

MS HASSEN: Sorry I can't hear? Do you have any other nicknames?

MR ZWANE: Yes. Bubu.

MS HASSEN: Bubu? And where do you stay Charles?

MR ZWANE: I stay at Orlando West. 

MS HASSEN: You are currently imprisoned, am I right?

MR ZWANE: Yes.

MS HASSEN: Okay. Are you married?

MR ZWANE: No, I am not married.

MS HASSEN: Do you have any children?

MR ZWANE: Yes, I've got one.

MS HASSEN: And what sort of education do you have?

MR ZWANE: Presently I am finalising my standard 10.

MS HASSEN: All right. In your statement you state that you were a youth leader in the Soweto Youth Congress, also known as SAYCO from the late 1984, and that a fight developed between members of SAYCO, can you tell us a bit about this dispute, about this fight.

MR ZWANE: I can. In fact it was during the state of emergency if my memory still serves me well, and our function under strict rules and under difficult conditions, because people were being arrested during that time, but we became brave as the leadership of the youth of Orlando West, we held meetings.

&#9;Unfortunately, I should think, I think that we were infiltrated by the system and it happened that some of our members fought us, we, the leadership of the youth of the branch, and that created a dispute within the branch and that created a fight within the members of the Soweto Youth Congress themselves, and it happened at that stage that some of the youths ran at Mrs Mandela's place during the course of the fight.

MS HASSEN: So you say that the youths ran to Mrs Mandela's place?

MR ZWANE: Yes, that is right.

MS HASSEN: If I take, can I confirm that there was a dispute now between the leaders and the members of SAYCO?

MR ZWANE: As I have stated, I have already said that it was.

MS HASSEN: All right, and what happened when the youth ran away to Mrs Mandela's place?

MR ZWANE: I recall some young boys one or two, were sent at my place to call us that Mrs Mandela was calling us and we adhered to the call, we went to Mrs Mandela's place and we found the youth at Mrs Mandela's place and the meeting was held in which Mrs Mandela advised or interfered that we must not fight amongst ourselves as the youth of the one area.

MS HASSEN: All right. You said you and somebody else went to this meeting, who was this Charles?

MR ZWANE: It was my comrade, he was the Chairman of the branch. By then I was his Deputy Chairman, that was Wilson Sibilwane.

MS HASSEN: Sorry what was his name?

MR ZWANE: Sibilwane, or his nickname is known as Makodjo. MS HASSEN: Makodjo?

MR ZWANE: Yes.

MS HASSEN: All right, and who presided over this meeting?

MR ZWANE: Mrs Mandela presided over the meeting.

MS HASSEN: Can you tell us more about what occurred at this meeting?

MR ZWANE: In fact when we arrived at the meeting, there was an allegation that me and Makodjo were shooting, they told Mrs Mandela, it seems that they told Mrs Mandela that me and Makodjo were shooting them with the system's firearms, as such.

MS HASSEN: The system's firearms?

MR ZWANE: Yes.

MS HASSEN: What do you mean by that?

MS HASSEN: When I am talking about the system's firearms, everything that was belonging to the Police, to the past system, to the forces of the past system.

MS HASSEN: To the government? All right, and what was the outcome of this meeting?

MR ZWANE: Well, in the meeting we agreed with Mrs Mandela that we should stop fighting as the youth of one area and we should be united together and the youth themselves suggested that we form a team which will be a symbol of unity amongst ourselves.

MS HASSEN: When you say the youth suggested that you form a team as a symbol of unity, what are you referring to?

MR ZWANE: I am referring to the team which was named as Mandela's Football Club Club.

MS HASSEN: So that is when the idea of the Mandela United Football Club came about?

MR ZWANE: That is when the idea came about of the formation of the Mandela Football Club.

MS HASSEN: Why Football?

MR ZWANE: Football was our township sport, we black were in fact not having options in other sports, the only sport we had an option in, was only soccer for boys in our black townships.

MS HASSEN: Was Mrs Mandela present when the youth suggested this?

MR ZWANE: I can't hear the question.

MS HASSEN: Was Mrs Mandela present when the youth suggested that a Football Club should be formed?

MR ZWANE: I don't think she was present.

MS HASSEN: All right. A Football Club was eventually formed am I right?

MR ZWANE: Yes, you are right.

MS HASSEN: Were you involved in this formation?

MR ZWANE: In fact I was arrested in the process of the formation of the Football Club.

MS HASSEN: All right, do you know if Mrs Mandela assisted the Football Club in any way?

MR ZWANE: Well, I assumed that she is the one that bought the kit for the team, though I don't have direct information.

MS HASSEN: You mentioned just now that you were arrested. Was this for the murder of Xola Makahula?

MR ZWANE: Yes, of course.

MS HASSEN: Can you tell us more about the death of Xola Makahula, about the events leading up to it?

MR ZWANE: In fact the events leading to the death of Xola Makahula, it was in 1987 if my memory still serves me well, I was at Mrs Mandela's place, sitting with my friend who was also a friend to Zinzi Mandela, that was Sitambiso and a certain MK guy visited the room while we were sitting there and he was in the possession of an AK47, and we sat with the guy and he taught me the use of an AK47 and at a later stage, at that stage I was in possession of a Scorpio sub-machine pistol, and of which he saw, on his departure he requested that I borrow him the Scorpio sub-machine pistol because he was going to travel by taxi's and the AK47 was too big for him to travel by taxi with.

MS HASSEN: If I can just stop you for a minute Charles, how is it that you were in possession of that firearm?

MR ZWANE: By then I was already recruited by the MK cadres, so I was an underground MK by then, that is why I was in possession of such a firearm.

MS HASSEN: And when you refer to Sitambiso, you are referring to Sitambiso Buthelezi.

MR ZWANE: Yes, of course.

MS HASSEN: All right, and then what happened?

MR ZWANE: Then (indistinct) left with my Scorpio to where he was going and he left behind the AK47, of which I spent some time in Zinzi's room with it, because I couldn't go home with it until it was dark.

&#9;While we were still sitting there, Oupa (indistinct) came back with a story that he was robbed of a Scorpio somewhere at an area at Zola and we drove with him from Mrs Mandela's place with the car which he came with and another car which was belonging to Mrs Mandela, the red Audi, we took the AK47. I handed it to Oupa (indistinct) at that stage I was in possession of two hand grenades and we drove with the other guys. There were other guys who were at the house.

&#9;We drove with two cars to Zola to try and recover that Scorpion that was robbed of Oupa (indistinct) at Zola.

MS HASSEN: In whose car did you go?

MR ZWANE: Can you repeat the question?

MS HASSEN: In whose car were you travelling?

MR ZWANE: We were travelling with two cars, the other one it belongs to a guy called Benjamin, the other one was belonging to Mrs Mandela.

MS HASSEN: All right, and who was the driver of the vehicle in which you were?

MR ZWANE: The driver of the vehicle I was in, was Mr Sitambiso Buthelezi.

MS HASSEN: All right, what happened then?

MR ZWANE: We stopped - we were following a yellow car, we didn't know where we were going to, so we followed the yellow Opel car that stopped at the certain house at Zola and we got out of the car, only the drivers stayed in the car.

&#9;We entered the house and we apprehended one of the guys which Oupa and the other guys got hold of him, and he pointed us the other house, four houses from where we stopped. We walked by foot to that house and the cars followed us.

&#9;When we were approaching the house, there were a group of guys sitting at the outside stoep and when they saw us, they ran away and Oupa started shooting with an AK47.

MS HASSEN: All right. Just now you alleged that there were more than two of you in this vehicle. Who are this other people that you are talking about?

MR ZWANE: As I have already stated, when we went to the car, there were other guys there, the guys who were in the process of forming the team, so they were also at Mrs Mandela's place during our departure to Zola, so some of them got into the car with us.

MS HASSEN: So you all went together?

MR ZWANE: We all went together.

MS HASSEN: All right, now you are approaching this other house?

MR ZWANE: And we got the guys sitting on the stoep, when they saw us they ran away. And Oupa started shooting at them.

MS HASSEN: Can you continue and tell us what happened thereafter?

MR ZWANE: Then we went in the house, through the back door, I stood in the door. Oupa (indistinct), he asked for the Scorpio and there was a noise in the house and I heard the voice of a woman saying that the Scorpio was at a call box, the firearm was at a call box and I went to the call box and I found the Scorpio, but they took the magazine away.

&#9;And I asked for the other magazine from Oupa, I put the magazine in and I just started shooting in the air, that the firearm was still working, and it didn't shoot and I took the magazine out only to find out that the bullets were not properly placed there and I found out that the firearm was working properly.

&#9;Hearing that the magazine had missed, followed one of the guys inside the house, I followed after him, because I was already armed by then. The guy closed the door, and I shot a single bullet through the door. Oupa pushed the door and got inside the room. I retreated back and I heard two shots after that and we ran away.

MS HASSEN: Did you go into the room after Oupa had shot to see what had happened?

MR ZWANE: I never went into the room to see what had happened.

MS HASSEN: All right, thereafter you say you ran away?

MR ZWANE: Yes.

MS HASSEN: And where did you go to?

MR ZWANE: I was dropped off at my parents' place.

MS HASSEN: By whom?

MR ZWANE: By Sitambiso Buthelezi.

MS HASSEN: All right, what happened then, what happened the next day?

MR ZWANE: The next day I went to visit Mrs Mandela's place as most of my friends by then were staying there before going to the school, I went there and the police arrived and they arrested every boy who was there, except me as I was seated in the main house watching the TV with the young children.

MS HASSEN: All right. Were you ever arrested for this crime thereafter?

MR ZWANE: Yes, a few days later I was pointed out by the guys and Oupa (indistinct), I was arrested for the murder.

MS HASSEN: You got arrested for the murder of Xola?

MR ZWANE: Of Xola Makahula and one other.

MS HASSEN: All right, was there a trial?

MR ZWANE: There was a trial and at the trial court I was acquitted on charges of murder and was sentenced to one year, to five years suspended for the possession of unlawful firearm, that is the Scorpio I have mentioned.

MS HASSEN: All right, you say you were an MK cadre at this point in time?

MR ZWANE: Yes.

MS HASSEN: Under whose command were you?

MR ZWANE: By then I was commanded by a guy called Vusile (indistinct)

MS HASSEN: All right, do you know anything about this V?

MR ZWANE: The only thing I know about it, it is this photo which was shown to me by the Security Branch Police which looks like the photo was taken, the photo looked like a photo of a person who was (indistinct), and the photo was taken and I was asked whether is this really V?

MS HASSEN: So in other words you know nothing about the death of V?

MR ZWANE: No, I know nothing about that.

MS HASSEN: You were then released on the 17th of November 1988?

MR ZWANE: Yes.

MS HASSEN: And I presume you went to your parents' home?

MR ZWANE: Yes.

MS HASSEN: What happened thereafter, can you tell us about in your statement you make reference of Maxwell Madondo and Siboniso Chili? Can you tell us what happened then regarding these two gentlemen?

MR ZWANE: In fact when I came out of prison, that was as you have said, that was November 1988, I stayed for December and the following year I heard rumours that Siboniso, referring to the Chili boy, that he was having a fight with the so-called Mandela Football Club.

MS HASSEN: From who did you hear this?

MR ZWANE: It was a rumour in the township that there was a fight between Siboniso and the Mandela Football Club.

MS HASSEN: And the Mandela Football Club?

MR ZWANE: Yes.

MS HASSEN: What did you do then?

MR ZWANE: What I did, I went to Siboniso's place, it was afternoon, in the company of a friend, and I went to find out by Siboniso what was really going on because I heard only rumours, I didn't get the story exactly. I got to Siboniso's place, but I can't recall what we really discussed during my visit, but we were talking about the same friction which I heard between him and the Mandela Football Club.

MS HASSEN: All right, with which friend did you go to Siboniso?

MR ZWANE: The name of the friend, Duduza.

MS HASSEN: Duduza? And what happened then Charles?

MR ZWANE: I left Siboniso at his place and I went home to do my school work, because by then I was also still a student.

&#9;I had to go home and do my school work.

MS HASSEN: Were you a member of the Mandela United Football Club at this point in time?

MR ZWANE: I was never not at this point in time, I was never a member of the Mandela Football Club, at any point of time.

MS HASSEN: All right. What happened thereafter? I understand that you were questioned by the Special Branch of the South African Police?

MR ZWANE: After the attack at Mrs Chili's house I was arrested, it was two days or three days, I was arrested by the Protea Security Branch Police and I was questioned for the bombing of Mrs Chili's house and the other incident, the killing of police around Soweto. 

&#9;And the same day I was released, because my father fought with the police when they came to arrest me that I was going to school and then they questioned me and they released me at a later stage.

MS HASSEN: Did you know that Mrs Chili's house had been bombed?

MR ZWANE: Yes, of course I knew.

MS HASSEN: And how did you hear about this, how did you know about this?

MR ZWANE: When - I would like to answer the question, whatever happened in the township, in our black township and Mrs Chili's house, I could say it is my neighbour, it is not far from my place, so when I woke up, everybody knew that there was a bombing at Mrs Chili's place.

MS HASSEN: All right, Charles tell me were you still in possession of the hand grenade at the time when Mrs Chili's house was bombed as you had alluded to us earlier that you had two hand grenades at the time of the attack on Xola's house?

MR ZWANE: In answering that question, I think I have been in possession of grenades, AK's, Scorpions, I have stated before that I have been a member of Umkhonto weSizwe, so I was in most in possession of such things.

MS HASSEN: But at the time of the bombing of Mrs Chili's house, did you have the hand grenades with you?

MR ZWANE: I can't remember, I can't remember really myself.

MS HASSEN: You said in your statement that you were arrested about two months later, why were you arrested?

MR ZWANE: In fact we had a friction was at the shebeen and my commander was there with me, and people were fighting me and we got angry and he used the hand grenade and we were arrested in the result of that incident.

MS HASSEN: All right. So this was for the bombing of Mr Nhlonga's house in Orlando West?

MR ZWANE: Exactly.

MS HASSEN: All right, I understand that you say in your statement that you were tortured into giving a statement. Can you tell us about this torture?

MR ZWANE: In fact what happened, after I was arrested for the hand grenade blast at Nhlonga's place, I was taken to Protea police station and was detained under Section 29 and it is where ...

MS HASSEN: Are you all right?

MR VALLY: Archbishop, it might be appropriate to stand this witness down, and we can call the next witness, Commissioner Fivaz and when this witness has recovered, we can call him after lunch.

CHAIRPERSON: Yes. I was going to say after you had finished with leading your client, that we would not proceed to cross-examination because we were going to be calling the next witness, Commissioner Fivaz, who is going to be available only between now and two o'clock, then we would recall your client.

MS HASSEN: Thank you Mr Chairman.

CHAIRPERSON: Commissioner Fivaz, good morning Commissioner. We would like to apologise because we have been delayed. You should have been here yesterday, and you came and I am very sorry, but everybody were here running very far behind our schedule and I am very grateful that with your kind of schedule, you were ready to make yourself available and so, Yasmin Sooka will administer the oath or take the affirmation.

JOHN GEORGE FIVAZ:&#9;(sworn states)

CHAIRPERSON: She is a briefer, just in case you need support.

MR FIVAZ: Thank you, one never knows.

CHAIRPERSON: Piers?

MR PIGOU: Sorry Archbishop, I was caught off guard downstairs.

CHAIRPERSON: Are you all right now?

MR PIGOU: Yes, thank you. Good morning Commissioner Fivaz, thank you for coming. Commissioner Fivaz, the main area of questioning from the TRC, is in relation to the 1995 investigation into the murder of Abu-Baker Asvat and subsequent investigations, the murder of Cookie Zwadi and the disappearances of Lolo Sono and Anthony Shabalala.

&#9;I wonder whether you can give us some background to the 1995 investigation, how it came about that this investigation was in effect relaunched or reopened?

MR FIVAZ: Chairman, I have submitted a copy of my statement to the TRC, with your permission I can read it out and I can hand the original signed, sworn one in for the purposes of administration.

CHAIRPERSON: Yes.

MR FIVAZ: Thank you. Chairperson, my statement reads as follows, I am the National Commissioner of the South African Police Service, since 29 January 1995. On 6 November 1997, I received a notice in terms of Section 29 of the Promotion of National Unity and Reconciliation Act, of 1995, to appear before the Truth and Reconciliation Commission at a public hearing from the 24th to the 28th of November 1997 in respect of the following matters. 

&#9;Firstly the formation and purpose of the Mandela United Football Club, secondly the murder and investigation into the death of Dr Abu-Baker Asvat in 1989 and thirdly investigations regarding Mrs Winnie Madikizela-Mandela.

&#9;I am aware that other persons, including certain investigating officers in matters involving Mrs Madikizela-Mandela have also been summonsed to appear at the same hearing of the Commission.

&#9;These persons are in the position to give a first hand account of their ensuing investigations. I have instructed them to cooperate fully with the Truth and Reconciliation Commission. I have no direct or personal knowledge regarding the formation and purpose of the Mandela United Football Club.

&#9;In respect of the investigation into the death of Dr Abu-Baker Asvat, and the Lolo Sono and Sibosiso Shabalala cases, I have been approached on various occasions by Mr Tony Leon, MP to investigate certain specific matters.

&#9;I have also been visited in my capacity as National Commissioner, by the parents of Lolo Sono who were of the firm view that the police have not sufficiently followed up on all possible clues to trace their missing son or to prove their suspicion that Mrs Madikizela-Mandela was responsible for this death.

&#9;I view the representations in a very serious light and instructed the command structure of the detective branch to reconsider the cases in lieu and follow up on every alleged loose end and to take all additional allegations into consideration in conjunction with the relevant Attorney General.

&#9;All information received by me was personally channelled to the investigation officers in question and feedback was provided to Mr Tony Leon. Copies of the relevant correspondence between myself and Deputy National Commissioner, Mike Bester, with Mr Leon, are available.

&#9;In essence the following information is contained in these replies to Mr Leon, namely firstly Ms Emma Nicholson, the British member of Parliament and Mr Katiza Cebekhulu were on various occasions during July 1995, interviewed in London by Superintendent H.T. Moodley.

&#9;Mr Cebekhulu had to such date, given four versions regarding the death of Dr Abu-Baker Asvat, it was evident that Mr Cebekhulu is not a reliable witness and for this reason could not be used as a witness in a criminal trial.

&#9;Superintendent Moodley was of the opinion that Mr Cebekhulu's knowledge of the death of Dr Abu-Baker Asvat is from conversations between himself and Messrs Dlamini and Mbata, the two persons convicted and sentenced for the death of Dr Abu-baker Asvat, whilst they were detained at the police cells in Lenasia and Protea Soweto.

&#9;No new evidence could be found implicating Mrs Madikizela-Mandela in the murder of Dr Abu-Baker Asvat. The Deputy Attorney General of the Witwatersrand, local division, was of the opinion that there is insufficient evidence for a successful prosecution of Mrs Madikizela-Mandela, as she on the strength of the available evidence, cannot be connected with the crime. The Attorney General indicated that he decided not to prepare any application for the extradition of Mr Cebekhulu.

&#9;The case docket of Mr Sono was submitted to the Attorney General, who declined to prosecute Mrs Madikizela-Mandela and members of the Mandela United Football Club as the body of Mr Sono had not been found. The Attorney General indicated that the discovery of the body is necessary to institute criminal proceedings. A possible site where Mr Sono had allegedly been buried was pointed out to the South African Police Service, the site was thoroughly searched twice aided by excavators and police dogs but to no avail.

&#9;Following the statement attributed to Mrs Madikizela-Mandela in the Citizen of 19 September 1996, namely that certain women had told the TRC that their missing children had last been seen in the company of Mrs Madikizela-Mandela and that the TRC had received evidence from the askari who had killed these children and had not called on him to speak in public, Mr Leon was informed that the TRC by means of Mr Patrick Kelly, the Regional Manager Johannesburg responded on 8 November 1996 as follows and I quote:

&#9;&#9;"I have consulted our investigative unit on the matter. Two cases relating to Winnie Mandela were heard at the Commission's Human Rights Violations hearings in Soweto on 22 July 1996, these cases were of the disappearance of Lolo Sono and Sibuniso Shabalala. I can find nothing to support the assertion that the TRC has evidence from an askari relating to either of these cases".

&#9;Results of any further investigations or facts gained were dealt with according to normal procedures including submission to the Attorney General. In a letter dated 13 October 1995, addressed to the Minister of Safety and Security, Advocate K M Attwell, the then acting Attorney General of the Witwatersrand Division, informed regarding the further investigation concerning Dr Abu-Baker Asvat's murder that there was at that stage, and I quote, 

&#9;&#9;"Quite simply insufficient evidence for a successful prosecution of Mrs W Mandela. On the strength of the available evidence she cannot be connected with the crime".

&#9;It has been brought to my attention, Mr Chairman, that according to media reports on 24 October 1997 Mrs Winnie Madikizela-Mandela has alleged before this Commission that the President of South Africa, President Nelson Mandela, had instructed me as National Commissioner of the South African Police Service to, and I quote -

&#9;&#9;"Dig up dirt".

on Mrs Madikizela-Mandela with a view to their divorce proceedings. This allegation is simply a bare-faced lie and I am duty bound to flatly reject it. These allegations are an insult not only to President Mandela but also to the South African Police Service. 

&#9;Sir the South African Police Service is not an instrument of politicians to settle personal scores and I find it offensive in the extreme that anyone could even suggest that President Mandela would go to such lengths on a personal matter.

&#9;Mr Chairman that is my statement, the original copy is in my possession and I can hand it in as an exhibit.

CHAIRPERSON: Thank you very much. Yes.

MR PIGOU: Thank you very much. I just want to put it to you formally that the information that you read in the newspaper that you have spoken about on paragraph 8, the media reports on the 24th of October, that indeed Mrs Madikizela-Mandela when asked about, and I will just quote to you on page 119, Section 29.2, it's the second one, 13th of October, that Mr Vally, my colleague put to Mrs Madikizela-Mandela -

&#9;&#9;"One of the two persons who were convicted for the murder of Dr Asvat alleges that you undertook to pay him and his co-accused to kill Dr Asvat. What do you say to this allegation?"

And her response was -

&#9;&#9;"I will here tell you a little story about, I heard about that ridiculous allegation. I heard for the first time of this nonsensical version when I was informed that my ex-husband had instructed Fivaz to investigate any type of dirt Fivaz could...."

it says "debt" here but I believe the words that were used was "dirt".

&#9;&#9;".... that Fivaz could rake in my name. He needed that information, it was stated to me, for purposes of our divorce matter which had not started at that time. He claimed he had sent emissaries I had not given a proper hearing to".

&#9;She then - let me just stop there, can we get you to confirm then that what you are saying in paragraph 8 is what you would say now in relation to that statement?

MR FIVAZ: I confirm Chairperson.

MR PIGOU: She goes on (...indistinct)

CHAIRPERSON: Switch on your....

MR PIGOU: I beg your pardon. She goes on to say that-

&#9;&#9;"I was then advised that the murderers of Dr Asvat had been approached in prison and had been assaulted and had been in fact asked to make implicating statements implicating me".

Do you have any knowledge of that allegation or the truth of that allegation?

MR FIVAZ: I haven't got personal knowledge about it Chairperson. I think this is really a question that should be put to the investigating officers because they were instructed by myself to follow up all those allegations and alleged loose ends.

MR PIGOU: I won't carry on on that paragraph, and perhaps I could just ask you a question now, you've indicated on the front page of your statement that you, I beg your pardon on paragraph 5 page 2, the second section of that that you instructed the command structure of the detectives to reconsider cases anew. Could you tell me who took the decision inside the command structure to appoint the same investigating officer, Senior Superintendent Henk Hesslinger onto the Abu-Baker Asvat murder docket?

MR FIVAZ: That was the head of the detective services at that time, at that time still a Lieutenant General Wouter Grove, but I must I think elaborate on that one Chairperson, that is normal practice to appoint your previous investigator because that investigator will be in a position, the best position with the knowledge about the case and with insight in the case and that is normal procedure. You will always try to find the original investigator and that investigator will be appointed.

MR PIGOU: Were you aware of any allegations that were made about Senior Superintendent Henk Hesslinger at the time of the trial of Mr Cyril Mbatha and Mr Nicholas Tilani Dhlamini? What I am referring to is that there were concerns first of all - from two quarters, that Superintendent Hesslinger had said that this was not a political crime, this was a straightforward robbery which my understanding is and perhaps my colleague Mr Kades over there will look into this and explore it a little bit further, that there was some concern from the Asvat family that there was such a quick decision taken over whether it was actually a straightforward criminal matter or whether there was some kind of political connection and I am referring now to the connection to Mrs Madikizela-Mandela. And linked to that the fact that a statement had been made by Tulani Dhlamini on the 18th of February 1989 which said that Mrs Madikizela-Mandela had offered R20 000 to them if they killed Dr Asvat, and the fact that this statement never surfaced in court, could you perhaps tell me why then was the same investigating officer put back on to that case?

MR FIVAZ: Chairperson I must say I wasn't aware of any of this type of allegation against Detective Henk Hesslinger. As far as I know he's a very competent well-experienced detective, he served on various commissions in the past and he's well known in our environment as a very thorough investigator. I must explain to the Commission, I think if we look at investigations of this nature you will always find that not only one investigator will take all the sections, in this case I think at least three very prominent investigators were involved, Detective H T Moodley and a Detective Dempsey and I think between the three of them some of these questions have to be sorted out. But I am certainly not aware of any allegations of that nature to Detective Hesslinger.

MR PIGOU: Would you agree Commissioner Fivaz that.....(tape ends)

...as it was imperative to get the co-operation of the two accused or the two convicted men I should say, Mr Mbatha and Mr Dlamini in this case and that in the investigation diary we see that considerable lengths were taken to actually try and establish some sort of communication with them, that it would be somewhat problematic to put the same investigating officer into that position in terms of developing some sort of trust as to how the case would be handled.

MR FIVAZ: Chairperson yes, if we have any allegation of substance against an investigator of course we will - and we have done it in the past, we’ll remove that investigator and we’ll replace or we’ll add on investigators to a specific team to deal with that perception or allegation. 

&#9;I think in this case I certainly wasn’t aware of that but over and above that Chairperson, it’s not my responsibility to appoint investigators, that is really the responsibility of the detective command structure to appoint investigators for the purposes of investigating certain cases.

MR PIGOU: Thank you Commissioner, I just want to move on now, could you tell us what kind of priority was put onto this case at the time because it seems from reading the investigation diary that a considerable number of resources were used in the investigation? Were you receiving regular feedback and what sort of interest did you take in this case?

MR FIVAZ: In my statement Chairperson, I’m saying that I was very concerned about the views of especially the parents of Lolo Sono because in my mind the parents were really of the opinion that we haven’t done our job as police officers in the past and I thought by myself from my side I’m going to make 100% sure that we are following up clues, outstanding loose ends and all other additional allegations, so I was very, very serious about the investigation.

&#9;I think from the side of my investigators that was certainly my impression as well. I received a number of report backs from Commissioner Suiker Britz - he’s really in command of serious violent crimes and certain organised crimes in South Africa and at certain stages - I’m not sure about the dates, some of the investigators also reported back to me and I never had the opinion that they are not serious about the investigation.

MR PIGOU: Thank you Commissioner, you’ve indicated in your statement that on the basis of Major H T Moodley’s information that he regarded Cebekhulu to be an unreliable witness. I wonder whether you can tell whether any consideration was given to opening an investigation into the alleged abduction of Gatiza Cebekhulu out of this country to Lusaka and the fact that he ended up in a Zambian prison an uncharged man basically detention without trial - allegedly at the ...[indistinct] of the ANC. Was there any consideration given into looking into that?

MR FIVAZ: Chairperson, not between myself and the investigators but certainly Superintendent Moodley mentioned on a number of occasions to me that it is very difficult for him as an investigating officer to rely on the evidence of Mr Cebekhulu that stage. At one stage I must inform the Commission, Superintendent Moodley was in London and we were communicating by telephone. &#9;

&#9;Even at that stage it was very difficult to rely on the evidence of Mr Cebekhulu as an investigating officer because it was quite clear that he was making various statements at various stages. That was never discussed and I think that type of question I would like to propose, must be reserved for Detective Moodley.

MR PIGOU: Thank you. In a similar vein and you may want to refer me back to Superintendent Moodley as well, was any consideration given in looking into the whereabouts of the three co-accused in Mrs Mandela’s trial who vanished out of the country? The fourth being Gatiza - that being Jabu Sithole who has been sitting here during the course of this week, Gift Mabulani and Brian Mabuza, has any attempt been made to locate those people to see whether they have come back into the country?

MR FIVAZ: Chairperson, that is normal practice and I would have expected it from the detectives. As I’ve mentioned they are well experience and very thorough investigators, so they would at least attempted from their side to identify or to search for those people as either accused in certain cases or maybe as witnesses in other cases.

MR PIGOU: I don’t wish to put a halo around the TRC’s Investigation Unit Head but if I can put some context on this, 11 investigators looking into four Provinces for 33 years of human rights violations, we are able to bring Mr Sithole to this table - locate and bring him here. Could you perhaps tell us why - it seems extremely to me that we are able to do that with such limited resources and the SAP are unable to do that? Could I have your comment on that please?

MR FIVAZ: I am very pleased to hear that Chairperson, I think what we have to understand about investigations is that you have to have the total support and assistance of the community when you are investigating. All our breakthrough’s are really being done on the basis of partnerships with the community, it the community is not providing the information or intelligence for that matter, you as an investigator is not really in the position to make a breakthrough.

&#9;So I wouldn’t say that only on the basis that Mr Sithole was identified and brought forward by the TRC, the investigators haven’t done their job but certainly I would like to recommend that that type of question should be posed to them as well.

MR PIGOU: Thank you. Are you aware whether any - because I’m looking at this whole thing of seeking people out, were you aware of any other attempts perhaps through National Intelligence Agency to try and locate former members of the football club who had subsequently gone to join MK or gone somewhere else, do you know whether any efforts were made in that regard?

MR FIVAZ: That is quite possible Chairperson, we have an agreement between the other intelligence agencies and that of the South African police service to co-operate, especially around certain investigations. As a matter of fact we’ll task if necessary NIA and SASS to assist the police service as far as certain investigations are concerned, so that is quite possible.

MR PIGOU: And would you be surprised Commission Fivaz, it information had been received from the National Intelligence Agency and it would appear from the information provided to the Truth and Reconciliation Commission, that this information had not been followed up in the course Superintendent Hesslinger’s investigation.

MR FIVAZ: I would not only be surprised I will also be very disappointed.

MR PIGOU: I’d therefore like to put this document in front of you which is a National Intelligence Agency document dated 21st April 1995 and titled:

"Former Mandela Football Club (MFC members) express fear of Gatiza Cebekhulu regarding the Stompie Sepei murder trial"

And I’m going to read it because I think it’s very important Archbishop and I hope you will give me some leeway here.

"Unconfirmed information"

This is paragraph one.

"Unconfirmed information obtained indicates that former members of the Mandela Football Club are afraid of Gatiza Cebekhulu, a witness in the Stompie Sepei murder trial and that they might named by him"

We blanked out the source name there but Mr X - if we can call him that, Mr X apparently said they are all afraid of Gatiza Cebekhulu. 

"They have expressed their fear that Cebekhulu will name them especially Moses Lekalakala and Killer Mbatha".

Paragraph 1.2:

&#9;"Unconfirmed information also states that Velape Gadebi pointed out that they have approached Leratode an MCF member who attacked and was stabbed by Richardson and ordered him to join the next intake of SANDF and to keep quiet at all times about what happened to Tony, also an MCF member"

Just for the record, we have identified that Tony is the same person as Tole Dlamini, allegedly shot dead by Sizwe Sithole on the 16th of October 1988. And they go on as it says:

"who was killed by Sizwe, a former boyfriend of Zinzi Mandela"

We go across the page:

"Unconfirmed information suggests that this happened on the instruction of Winnie Mandela. Gadebe indicated that Winnie said that Tony died because he wanted to leave the Mandela Football Club.

1.4:

"Some of these MFC members are staying in Berea, Johannesburg (addresses unknown) because they are afraid to be in the townships, they’ve also occasional contact with Winnie Mandela"

2:

"The above-mentioned information was obtained from a go-between by a usually reliable source. The information has not locally been liaised with any other department. The matter will not be pursued further by this office. Our receipt advice is attached. Your co-operation is appreciated".

Now, this letter is addressed to the commanding officer of the SAPS CIS in Braamfontein and in the top left hand corner we have a signature of - I believe Wouter Grove, having received this information, and it appears from the information handed to us by the Investigation Unit that there seems to have been no further follow-up to try and locate these people to use that source. Could you tell me what your comment is on that?

MR FIVAZ: Chairperson I’ve already indicated that if we haven’t - from the side of the police service, followed the information up at least because it’s unconfirmed one source, untested information but still we have a responsibility to follow it up. If we haven’t, I’ll be very disappointed because that would have been normal practice. &#9;Once again Chairperson - if you look at the right top corner, it seems that the document was discussed between - at that time Brigadier Suiker Britz and there was an instruction from General Wouter Grove, for him to also discuss it with Colonel Henk Hesslinger. So I think really, if you want to have a firsthand answer on this document and whether we have followed it up we have to ask the investigators whether they have followed it up.

MR PIGOU: Thank you. I just want to say for the record that that document was provided to myself by Superintendent Hesslinger and Ann Moodley when I picked up documentation in May of this year in connection with this investigation. I want to move on to a subject I presume will be of some controversy in this hearing and that is the authorisation of R10.000-00 payment to Gerry Richardson in 1995. Could you tell me what knowledge you have about the circumstances leading to the authorisation of that payment?

MR FIVAZ: I haven’t had any knowledge about it. Once again Chairperson, I think I must explain to you what is happening in normal practice when you are paying an informer. The authority to grant permission for the payment of any former has been devolved to a much lower level than myself in normal practice, so it will be done normally - when you are talking about huge amounts like R10.000-00 and upwards, by a person with the rank of Assistant Commissioner and higher.

&#9;In this specific case I was informed about the payment only about three weeks ago when documents were prepared for submission to the TRC, so I wasn’t aware of that payment at all up to three weeks ago.

MR PIGOU: Just for the record, the authorisation in terms of the command chain - according to the typed investigation diary handed to the Truth Commission, was Brigadier Britz and General Grove.

&#9;I just want to stick on this point for a moment of payment ...[indistinct] to someone who - the link to the payment, my understanding of the reading of the investigation diary is that Gerry Richardson was being paid R10.000-00 in 1995 for an incident that occurred in his house on the 9th of November 1988, in which a security branch policeman Sefanus Pretorius and two Umkonto weSizwe cadres were killed.

MR FIVAZ: Correct.

MR PIGOU: And I’m trying to understand how is it possible for a man that is convicted and sentenced to life imprisonment to get paid R10.000-00 or an authorisation even to be made even if he was or wasn’t paid, for a security branch source - a security branch activity in 1988, is this common practice?

MR FIVAZ: No. Chairperson, certainly not and I had the same question three weeks ago, I was also confused about the motivation in the document and as a result of that I asked exactly the same question. As a result of that, the two investigating officers explained to me that it was not really for that specific incident way back, it was as a result of an interview between themselves and the specific source. 

&#9; The source indicated that he won’t co-operate with them unless they are paying him the R10.000-00 the police service is owing him for many years and as a result of that, they motivated that. There is evidence still left in our structure that his story is indeed true and that the police service - the State as such, is owing him an amount of R10.000-00 and as a result of that they motivated the informer claim on the basis of that previous incident.&#9;

&#9;But it wasn’t really for that incident, it was to smooth his hand or to oil his hand to participate with the investigators as far as further investigations are concerned.

MR PIGOU: So you are telling me that the South African police service is involved or has been at least in this occasion on oiling the palms, greasing the palms of convicted murderers for the purpose of establishing a case against somebody else?

MR FIVAZ: Well Chairperson, I think what has happened - I’ve indicated exactly that which was explained to me and I’m testifying on hearsay now - that was explained to me. The investigators indicated to me that it was very important and as a result of the R10.000-00 they have succeeded to identify one specific person that was ...[indistinct] those days which was pointed out by the specific informer, so as a matter of fact the R10.000-00 contributed to the solving of other incidents afterwards.

&#9;I don’t think - maybe the wrong words to say: "They have oiled his hand", but I think it was very important for the investigators to make sure that the informer participated with the police and afterwards he indeed participated with the police service and as a result of that they have succeeded to solve one additional case.

CHAIRPERSON: Order please. Excuse me please?

MR PIGOU: Yes, Sir.

CHAIRPERSON: We are going to have to break at 12H30 because of the ...[inaudible]

MR PIGOU: I’ve literally got a couple more questions and then I will be finished.

CHAIRPERSON: All right.

MR PIGOU: If that’s okay, I’ll be as brief as I can.

CHAIRPERSON: Yes, be as smooth as you can.

MR PIGOU: Okay. I just wanted to say that in the investigation diary under the 12th of May 1995 - an entry by Colonel Hesslinger, there’s an indication that he spoke to - well, he says, spoke to a Lieutenant Muller MID Soweto, who confirmed that Richardson was an informer. 

&#9;The documents and registers were in headquarters, Section K, a Brigadier Steyn and that Brigadier Steyn referred Superintendent Hesslinger to a Lieutenant Colonel Shaw. The point I’m getting at is that it would appear that there are documentation sitting somewhere in Pretoria about informers and I’m wondering if that is the case, if you are able to establish - with documentation, that Gerry Richardson had been informer, that there would be a whole host of other documents sitting there which would indicate to the Commission who were informers. And I’m wondering whether you would undertake now to see whether that is the case and make those records available to the Commission?

MR FIVAZ: I think Chairperson, you have it on record under my signature that we’ve already searched our total environment for possible informer records in the environment of the police service. I’ve received certificates from all our structures all over South Africa saying: "We haven’t got anything of importance" - of course we still have many informer records but not "of importance for the function of the TRC". 

&#9;We don’t have any of those informer records left and I believe there was an indication in our documentation saying exactly what happened - according to our information, to those records - it has been destroyed.

MR PIGOU: Thank you. Just an extremely quick follow-up on that because it is indicated in this investigation diary in 1995, that there was a record so I have some concern here that between 1995 and the time that you wrote that letter, that those records may have been destroyed. Perhaps you can comment on that.

MR FIVAZ: I think what the investigators will explain and I asked them exactly the same question, is that you still have the post-mortem reports and the inquest dockets available in court on those two persons who have been killed in that police raid. 

&#9;And over and above that, they have spoken to a specific person with the knowledge and on the basis of that they made the assumption that the story of or the indication from that specific source, is true. So I think that was - I don’t think it is information coming out of a typical informer file of the past.

MR PIGOU: Thank you, last question now. In the light of the investigations that were conducted by Senior Superintendent Hesslinger in his investigations and the fact that the case - I think you were referring to the successful completion, was the Kukizwani case although it seems that it’s not been successfully completed because no-one has been charge indeed and the fact that in spite of extensive searches by the SAP for the Lolo Sono’s body outside Soweto, it seems to me that there were quite a few things that could be still be done in this investigation. 

&#9;I look at the back of the investigation diary and there are organigrammes which show who was spoken to and who hadn’t been spoken to and a considerable number of people had not been approached in this regard. Could you tell us why the investigation was closed I think in either September or early October 1995?

MR FIVAZ: You’ll find Chairperson, that normal practice is that you never close a murder docket. We have what we are calling a: "Bring forward system" where murder dockets will be filed temporarily and after a couple of months it will be brought forward and it will receive additional attention - that is normal practice with a murder docket.

&#9;Once again I would like to recommend that if there are still outstanding issues in those dockets, then we have to ask the investigating officers why hasn’t that type of thing been followed up and what are the intentions of the investigating officers of following it up because in my mind a murder docket is never closed, it is always alive and will receive attentions sporadically.

MR PIGOU: Thank you. No further question Chair.

CHAIRPERSON: Thank you very much, I think we will then break. Can I just find out from you Doctor Asvat, is it possible to get back at quarter past one? I think we should try to get back at quarter past one because you have to be away. Thank you very much, we adjourn.

MR FIVAZ: Thank you very much.

COMMITTEE ADJOURNS

ON RESUMPTION

MR RICHARD: May I use the opportunity of the pending settling down period to say various documents are being mentioned that do affect my client, I have no knowledge and I had no knowledge of them till now.

CHAIRPERSON: Can you say that when the legal people are there ...[intervention]

MR RICHARD: I see the relevant person coming. 

&#9;Mr Pigou, we have a relevant person here - I was making a short address as to the fact that there are various documents, the nature of which I do not know. ...[intervention]

CHAIRPERSON: Just wait a bit, let us try and get order. Order please, thank you. Yes?

MR RICHARD: Thank you Chairperson, as I said there are various documents that are being referred to by the current witness, I’ve never had sight of these and I have no knowledge of the nature or description of them. I would like to have them in time to be able to ask the witness some questions on them and I’d like a direction from the Chair.

MR PIGOU: Chair, I have checked with my colleagues and it’s true, Mr Richard has not been furnished with the investigation diary that I was referring to and I will now try to make a copy available for him.

MR RICHARD: I presume that will be before the witness is placed under cross-examination, so I’ll at least have a chance to read them.

MR PIGOU: Mr Richard what I will do is, I will walk to the other side of this room and I will hand you my own copy.

MR KADES: May I have a copy as well, I don’t have one?

MR PIGOU: Mr Cades, your client was given a copy of this document, I believe it was on Saturday when he visited the offices of the Truth and Reconciliation Commission and I was present, thank you.

CHAIRPERSON: Let’s get started. Mr Semenya?

UNKNOWN: I have an extra copy somebody can use.

CHAIRPERSON: I beg your pardon?

UNKNOWN: I have an extra copy somebody can have.

CHAIRPERSON: Thank you very much.

MR SEMENYA: Thank you Chairperson. 

CHAIRPERSON: Could people please just settle.

MR SEMENYA: Commissioner, ....[intervention]

CHAIRPERSON: Hello, hello, I’m asking people to settle, thank you.

MR SEMENYA: Commissioner, can I try and put in context the letter that - the circumstances that gave rise to paragraph 8 of your statement and to put it in context I would refer to the transcript of the "in camera hearings" where that statement was made.

&#9;Chairperson, may I refer firstly to page 170 of the second part of the "in camera hearing"? And maybe in a very intelligent English, I’m saying there that - at the end of the hearing, I’m saying that I’m requesting that the Commission - before exercising it’s discretion, to release the transcript and offer us an opportunity to address it so that we do not have ...[indistinct] of the statements coming out into the media and quoting certain things out of context. 

&#9;And I wish to refer to page 171, where the presiding Chairman in that "in camera hearings" says - or maybe the lines before.

&#9;"Usually we take a view that the Commission, especially because it is a weighty decision to take, means commission in the sense of the entire Commission even though of course there is a sub-committee of the Commission, the definition says you can say: "Commission" when you say: "The Committee". 

&#9;We’re fortunately going to have a meeting on the Commission on Thursday and Friday and I think this panel will have to obviously look at what the process has been so far, especially now in view of your request which is quite legitimate.

&#9;We will want to put the matter before the Commission and I’m sure Mr Vally is going to be in contact with you as you know and tease you with what you consider is the proper legal way in which fairness should be ensured when a decision of that nature is made"

&#9;Now, up to the time of the publication of the media, there has not been an official decision by the TRC to publish the contents of the "in camera hearing". In fact when we saw all these comments in the paper, the TRC said the document was purloined - and I for the first time knew what that word meant, but it was taking without authority.

&#9;Now, I wish to refer you to the aspect where that statement comes from. Clearly on a direct question, Mrs Mandela has been asked what she knows about these allegations and she starts by saying:

"Let me tell you a story, this is my information that I have learnt"

But the media quotes it as though she’s making a statement of fact and that’s how you responded to it, am I correct Commissioner?

MR FIVAZ: Chairperson, I became aware of the media releases on the issue. I issued a statement from my side saying that is certainly not true, secondly I wrote a letter to the TRC in which I object against that specific statement. I must say that it’s not regarded by myself as a personal issue between Mrs Madikezela Mandela and myself, it’s only a fact that we are working on a creditable police service removed from politics. 

&#9;And that was really in mind - whether it came from the media or specific persons, a deliberate attempt to smear the South African police services as such and also the President of the country.

MR SEMENYA: The point I’m ...[intervention]

CHAIRPERSON: Excuse me, Hanif seems to want to intervene here.

MR VALLY: Thank you Archbishop. Archbishop, just as we speak I’ve had a ...[indistinct] Chief Executive Officer, Doctor Biki Minuku who tells me the investigation into the alleged leak of this Section 29 transcript by both the SAPS and the National Intelligence Agency has indicated - when they made a comparison between the Section 29 transcript and the report in the press, that the leak was not of the Section 29 transcripts. This is the finding of the SAPS and NIA which has just been communicated to me telephonically right now.

MR SEMENYA: Mr Commissioner, the point I’m trying to make is this, if you look at the exact transcript, the media reports ought to have read that:

"Mrs Madikezela Mandela has alleged that she has information"

Would that have been the correct way - looking now at the correct transcript?

MR FIVAZ: Chairperson, I accept that is what you have in the transcript.

MR SEMENYA: Dealing with - and to confirm and to corroborate this point the Attorneys, Seseriti, Mavundlay and Partners caused a letter to be addressed to you Commissioner. Can I give you a copy and tell us whether you recognise or recall having received this letter?

UNKNOWN 2: Mr Chairperson, I think the people at the bench here don’t have a copy of that letter and we’d be grateful if we could also be furnished with a copy.

CHAIRPERSON: There are some - if you can share, thank you very much. [tape blank]

MR SEMENYA: Before the "in camera hearing" and in May of 1995, the request which this letter is making is that there is information that Mbatha and Dlamini are being assaulted with the view to implicate Mrs Mandela in this murder and we make two requests which would appear in paragraph 2 - I mean page 2, under paragraphs A & B:

"If our instructions are to demand that:

&#9; (a) the police either charge our client for the alleged offences that she allegedly committed, failing which they must stop making any press statements or utterances to the media in connection with the alleged police investigation involving our client and:

&#9; (b) you give us access to the above-mentioned people in order to determine whether the alleged unlawful conduct of the police is correct or not"

And according to my instruction there was no response to this letter of May Mr Commissioner.

MR FIVAZ: Chairperson, if I look at the letter then I think I must inform the TRC about the arrangement in the management environment of the police service. We have four Deputy National Commissioners and each one will be on duty for a specific week on a rotating basis. 

&#9;It seems that this letter was received at that time by Lieutenant General Morgan Chetty, he referred it to a Brigadier Britz and Schoeman - as I can see on the document, and he said in his remark: "Discuss it with the legal section of the police service and treat as urgent".

&#9;So this was not in my hands at all, it was dealt with by the South African police service but I assume by the detective service. So if we would like to give proper explanation about developments around this letter, I think those officials must be called to answer those questions.

MR SEMENYA: But according to me, the statements by Cyril Mbatha and Dlamini implicated Mrs Mandela with Doctor Asvat death after the date of this letter.

MR FIVAZ: Chairperson, that’s quite possible, that’s quite possible but this specific letter - it’s really the very first time I’m seeing the letter but what I can testify from my side, it has been received by National Commissioner’s office head office and it was referred to the Detective Branch to deal with.

MR SEMENYA: I think what is of interest - at least to me if not important to the Commission is, have you discovered the information when did Richardson become a police informer? Was it before the abduction of the children from the Manse or after?

MR FIVAZ: In my case Chairperson, I can say most definitely about - the first time I was informed about the possible involvement of Richardson and other people was when my official was in London and after I had a meeting with Mr Tony Leon. I was personally involved in anyone of these investigations at any stage.

MR SEMENYA: But you would agree with me, it would be important to know whether the removal of Stompie from the Manse was instigated by this police informer - we know that he’s the one who removed them together with Falati.

MR FIVAZ: Chairperson, I think I can only assume certain issues here because I was never involved. We are going to have two of our investigating officers here today - three of them as a matter of fact, they worked on a first hand basis with the investigations and I think they will be in a position to answer exactly what is asked now.

MR SEMENYA: Let me ask as a matter of policy, my understanding is that the Government uses tax payers money to pay informers for among others, to use that information to stop the commission of an offence. Is that a fair statement to make?

MR FIVAZ: That is normal practice.

MR SEMENYA: Now, if this information we have in front of us is correct, Gerry Richardson would have known that Doctor Abu-Baker Asvat was going to be killed before it happened. You would expect that as an informer he must take that information and give it to the police to stop the murder of Doctor Abu-Baker Asvat. Is that fair to say?

MR FIVAZ: That is also normal practice.

MR SEMENYA: And if indeed he did communicate that information as an informer for which he’s paid R10.000-00 down the line, it means the police kept quiet knowing that Doctor Abu-Baker Asvat was going to be murdered?

MR FIVAZ: Chairperson, that I can’t answer because what we are talking about is offences committed in the late ‘80’s. The investigating officers - once again, are here today and I think when you are talking about a police informer it is not as straightforward as saying a police informer for the normal structures of the police, meaning the normal uniform police officer and the ordinary detective.

&#9;Most probably an informer of the old security branch and that was of course not open for utilisation by the ordinary detective and the normal uniform person. Those informers were the informers of the old security branch and they were not utilised by the normal structures of the police service.

MR SEMENYA: But they were still paid out of the tax payers money so that they can bring information that can stop certain offences being committed?

MR FIVAZ: But you know Chairperson, I think we are also talking about two categories of informers, the one informer will be around crime investigation if you look into the past, the other informer was really managed within the framework of the Secret Services Fund. 

&#9;That was not an open fund for the use of the ordinary police officer, it was a fund for the purpose of the functions or performing the functions of the old security branch and all those informers were paid out of that specific fund.

MR SEMENYA: But what I’m trying to establish is whether the purpose of that old security branch to use informers, was it not also amongst others to stop the commission of offences?

MR FIVAZ: Amongst others Chairperson but we all know that the old security branch was not only concerned about crime.

MR SEMENYA: Do you know if you are able to establish the exact date when Richardson was registered as an informer?

MR FIVAZ: Chairperson, for that purpose you’ll need the informer file and I have my doubts whether that’s possible at this stage because we’ve have already indicated to the Commission that we don’t have any of those files left and I think the date of registration will be in that specific file. 

&#9;We have already searched for those files and we haven’t found anything, so I think it will be extremely impossible in my mind to find that date or to discover that date.

MR SEMENYA: Now Commissioner, three weeks ago you told us that you came to know about the payment of R10.000-00 to Gerry Richardson. As you stand, did you form an opinion that that payment was proper payment to Richardson by the members of the South African Police?

MR FIVAZ: What I did Chairperson, I relied on the bona fides of the investigators, I haven’t checked it myself - that is totally impossible, I can’t check all informer claims in the police service because we are dealing with literally thousands of them. But I also explained that we - from my side, from the accounting officer of the department’s side, I queried that specific claim when it was brought to my attention by my legal people in the police service and I thought I can’t regard this as normal practice. 

&#9;What happened here is, I made my enquiries and I testified this morning about what was discovered by myself and what was explained by my people about the motivation on that claim. I accepted their explanation that the payment was not really for services rendered but for services to be rendered.

MR SEMENYA: But we are not to anticipate disciplinary action for the payment of that R10.000-00, is that my understanding?

MR FIVAZ: Chairperson, the understanding is correct. I’ll institute disciplinary actions only when I have evidence that that payment was indeed not made to the specific source, then you have a base for disciplinary action and at this stage I haven’t got a base for disciplinary action.

MR SEMENYA: All right. Let me put it this way, have you since discovered how the oil operated? We know Gerry Richardson’s hands are oiled now and we’ve since discovered in aid of what - to induce which information?

MR FIVAZ: Chairperson, I think to come back to the issue of paying for services to be rendered, that is not an extraordinary issue in any police service all over the world. You are making use of this facility all over the world, not only in police services but also in intelligence agencies to pay people not only for services rendered but also services to be rendered, that’s the way you are making certain breakthroughs in crime. 

&#9;Unfortunately it is case that you still have to pay people to participate with the police service on certain crimes. It’s not an issue of bribery and corruption, it’s a well accepted mechanism all over the world in any police service.

MR SEMENYA: I accept that Commissioner, except one thing. She had the services to be rendered and that it be rendered by a man who has been convicted and is on life sentence, he’s making an application for a whole range of murders and he implicates a particular figure of complicity in those atrocities. 

&#9;Shouldn’t one really ask the police: "What type of information is the man now giving us, what are these services to be rendered and were they useful or not"?

MR FIVAZ: I established from the investigators that their dealings with the source was indeed useful. I think Chairperson, they will testify from their side exactly what happened between themselves and the source. I am of the opinion that if you look at people requesting attention from the side of detention - when they are in tension, we are receiving numerous letters and requests from people in jail saying that: "We now suddenly have certain information on crime". 

&#9;Most of those requests are totally unfounded and in many cases we are indeed discovering enough court related evidence in that way to take somebody to court, it is an exercise which you can’t ignore. When a person is requesting to be interviewed by a police officer, it’s also normal practice to sent a police officer to interview that person and to make sure what is in the testimony or information or intelligence of that person that could be used for the solving of a crime or for that matter for the identification of people involved in crime.

MR SEMENYA: I’ve no further questions Chairperson.

CHAIRPERSON: Thank you. Any questions on that side? Mr Richard?

MR RICHARD: Thank you Chairperson. I’m reading from documents that I only received 20 minutes ago, so please bear with me if I don’t understand them fully. According to these documents, on the 12th of May 1995, Mr Richardson was already taking a Lieutenant Coode to point out the place where Kuki Zwani’s body had been left and pointing out the places where the bodies of Lolo Sono and Sibuniso Shabalala had been buried. Is it correct that without this information those three murders would not have been solved or you would have not had to deal with?

MR NTSEBEZA: What document are you referring to Sir - so that we can follow?

MR RICHARD: I’m referring to the document that Mr PIGOU handed to me 20 minutes ago and that is called:

"Ondersoek Dagboek - Spesiale Ondersoek"

MR NTSEBEZA: Investigation Diary? Is that the Investigation Diary?

MR RICHARD: That’s the Investigation Diary.

MR FIVAZ: Chairman, I’m of opinion - unfortunately I haven’t got copies of the Investigation Diary but I don’t think that will really assist me, I think that question should be posed to the persons who have interviewed Mr Richardson and who took the investigators to specific spots and who pointed out specific spots to the investigators. 

&#9;I was never involved in that process but what I can say to the Commission is that my investigators in the form of Superintendent Moodley and Superintendent Dempsey confirmed to me that the source led them to certain spots and it was indeed a useful exercise.

MR RICHARD: In other words - as you correctly pointed out, I should reserve my questions for the two further witnesses later. However, I would point out at this juncture that one of the instructions that I have had from Mr Richardson is that if the police wish to consult with him, he is more than willing to sit and co-operate at whatever level. He has made a similar invitation to Mr Pigou which hasn’t yet been taken up. No further questions.

CHAIRPERSON: Thank you.

MR FIVAZ: Thank you Chairperson.

CHAIRPERSON: Thank you. Yes, Mr ...[indistinct]

MR RICHARD: Mr Fivaz, I want to refer you to paragraph 5 of your affidavit, it’s a reference to the visit by Mr and Mrs Sono to your offices in Cape Town, am I right in thinking that the visit took place in 1995?

MR FIVAZ: I’m not 100% sure but the fact is the visit was in my office in Cape Town and I am more or less sure or nearly 100% sure it was in ‘95.

MR RICHARD: Thank you. In your evidence elicited by my learned colleague Mr Semenya, you said that the payment to the informer was for services to be rendered in the future, is that correct?

MR FIVAZ: Chairperson, just to underline again what or to re-iterate what I’ve testified. After I had insight in the claim, I asked an explanation from the investigators and they explained to me - because I was upset about the motivation in the claim as that is not standard practice in the new police service to pay informers of the previous dispensation, that is the basic principle, so they explained to me they had to pay because to a certain extent the previous dispensation was morally obliged to pay for the services because they established that they acted on this information and indeed they were successful. 

&#9;That was not really the point, what was absolutely necessary - the source said: "I’m not willing to work with you unless you are paying what you are owing" and on that basis they decided to pay. I’m not quite sure whether that payment was before the identification of certain spots or thereafter, I’m not quite sure but we have to ask that of the investigators.

MR RICHARD: But the point is, there were two possible reasons for the payment, the first was for information to be rendered in the future, the second was as an honourable organisation the South African police service would accept that it is liable for debts that have been incurred in the past even if they were incurred in 1988. 

&#9;So I take it that the second reason was also a further additional reason to make the payment to Mr Richardson even though it was made in respect of an incident that took place - as you say, in the previous dispensation.

MR FIVAZ: Chairperson, that of course is possible, that was not explained to me as the reason for the payment by the investigators - that is only an assumption.

MR RICHARD: Then I see in paragraph 6.8 of your affidavit that is says that:

"The case docket of Mr Sono was submitted to the Attorney General who declined to prosecute"

And then it says further:

"as the body of Mr Sono had not been found"

Then it says:

"The Attorney General indicated that the discovery of the body is necessary to institute criminal proceedings"

And you don’t comment on what the Attorney General indicated. Do you think that it is necessary to have a body in order to charge somebody with murder? It’s surely not because all that is required for a murder conviction is that the person is found guilty of having unlawfully and intentionally killed a human being, so you don’t need to have a body to prosecute somebody for murder.

MR FIVAZ: I think many people have been sentenced all over the world in the past where the body has not been discovered. Certainly that is a very, very substantial point but I think that should be asked to the Attorney General because I think we all know exactly how the system works. 

&#9;When you submit a case docket to an Attorney General, that person has the final authority to make a decision on that docket and that was really what’s on the docket and out of discussions - as I received information from the investigators, between themselves and that specific Attorney General.

MR RICHARD: But you’d agree with me that the mere absence of the body is not an adequate explanation for a decision not to prosecute?

MR FIVAZ: I’m in agreement.

MR RICHARD: And secondly, somebody could have been - evidence has been led at these hearings regarding an allegation that Mrs Mandela was seen in the presence of Lolo Sono in a Kombi on approximately the 13th of November 1988 when Mr Lolo Sono was in an assaulted condition and that despite the protestations of Mr Nikodemus Sono, Mrs Winnie Mandela refused to allow Mr Lolo Sono to leave the Kombi and return home - return to the custody of his father.

&#9;It therefore appears to me that Winnie Mandela could perhaps be charged on this allegation for kidnapping which amounts to the unlawful and intentional depravation of someone’s liberty. So, do you think that the Attorney General’s decision not to prosecute Winnie Mandela - given those circumstances, is a good one?

MR FIVAZ: Chairperson, exactly what has been said was conveyed to me by the parents of Lolo Sono in my office. As I’ve indicated, I directed the Detective Branch to reopen the case, to have a fresh look at all the available evidence and to attend to all the alleged loose ends. &#9;

&#9;Afterwards, the docket was once again taken to the Attorney General and the investigators explained to the Attorney General exactly why it was reopened on the direction of the National Commissioner together with the whole history and once again the Attorney General declined to prosecute. 

&#9;In the documentation received from the Attorney General, it’s quite clear that they don’t have sufficient evidence in the police docket to prosecute any person or to lodge a criminal charge against a specific person. So, normal practice is really that you have to respect that decision of the Attorney General. You can’t - as a police officer, you can’t do anything about it and that is the point.

MR RICHARD: In the light of Gerry Richardson’s Amnesty Application in which he will say - I understand that he was responsible at least for the disposal of the bodies of Lolo Sono and Sibuniso Shabalala under the directions of Mrs Mandela, don’t you think it’s important that that docket be re-submitted to the Attorney General or reopened for further and better investigation?

MR FIVAZ: Chairperson, certainly the basis of reopening and re-submitting a police docket to an Attorney General will be on the basis of new evidence. If we have any new evidence, then of course it makes out a proper case to reopen and re-submit the case docket.

MR RICHARD: The problem as far as I’m aware, is of course that the docket in respect of this incident has gone missing - I speak subject to correction, my information I think comes from the TRC.

MR PIGOU: Perhaps I could just clarify here. In conversations with Superintendent H T Moodley, he indicated to me that he couldn’t remember exactly where the docket was but he thought the last time he had seen it was when he handed it to the Attorney General. 

&#9;The Chief Investigator of the TRC in Johannesburg told me that he contacted Attorney General de Vries in relation to this and they didn’t have - that office responded, they did not have the docket. There is some concern on our side that we’ve been unable to locate that docket but perhaps Superintendent Moodley will be able to help us on that.

MR FIVAZ: Chairperson, I think that’s a matter of concern and we have to follow it up from the side of the police service as well because somewhere in the channel we have to find the police docket, it must be available somewhere.

MR RICHARD: So I’m sure that the police service will take earnest steps to find out where that docket is - I think there may well be two dockets, one for Mr Sono and one for Mr Shabalala, and then to look into the question of reopening the investigation given the new evidence that’s become available through Mr Richardson.

MR FIVAZ: Chairperson yes, we’ll do that.

MR RICHARD: Thank you Sir. Sorry, one more point, I just wanted to communicate my clients appreciation to you for seeing them in Cape Town in 1995 and taking the trouble to see the matter being reopened and investigated, thank you.

MR FIVAZ: Thank you.

CHAIRPERSON: Mr Cades?

MR KADES: Thank you. Commissioner Fivaz, Cades on behalf of the Asvat family. Investigations were reopened in the murder of Doctor Abu-Baker Asvat as a result of representations made to you by Mr Tony Leon MP. Were you also influenced by the fact that the current Minister Sydney Mufamadi, had also requested a reopening and a re-investigation of this matter?

MR FIVAZ: Chairperson, I think there were a number of issues which convinced me that we have to look afresh at the total investigation. There were reports in the media, some very unsubstantiated and of course there was a concern from the side of the Minister, at one stage we discussed it and there were telephonic conversations between myself and Mr Leon prior to our meeting with the parents of Lono Sono in my office. 

&#9;So, there was a build-up of requests really to reopen and that is why I’ve decided with Mr Tony Leon to see his clients - he brought the people to my office, and I listened to them and I thought we have to convince at least that we are following up every possible lead and that is really why I decided to reopen.

MR KADES: Well Commissioner, one of those leads was Mrs Madikezela Mandela herself wasn’t it? Because insofar as the murder of Doctor Asvat was concerned, fingers were being - rightly or wrongly, fingers were being pointed at her - in her direction, isn’t that so?

MR FIVAZ: That’s correct.

MR KADES: Do you know whether your offices - did you direct your offices ever to take a statement from her concerning what information she had concerning the murder of Doctor Asvat?

MR FIVAZ: I never directed my offices to do it. Once again Chairperson, an investigation is not conducted under the auspices of the National Commissioner, there is a very specific structure - normally we’ll investigate with the assistance of the Attorney General. I never directed them myself but certainly that should have been one of the options.

MR KADES: Absolutely.

MR FIVAZ: That should have been one of the options and certainly experienced investigators like in this case, would have considered that option so I think that question should be posed to them.

MR KADES: I’m aware of that and I’m aware of the fact that you’re being asked so many questions about which you have no information at all, having not been involved yourself. Do you know whether any of your investigators in fact did approach Mrs Madikezela Mandela requesting a statement from her concerning the murder of Doctor Asvat?

MR FIVAZ: I’m not sure about that one, I’m certainly not aware of a report back to me that that specific meeting took place or that there were attempts from the side of the investigators that were not reported to me.

MR KADES: Did you regard your function then being merely that of a conduit? A complaint was made by - or a statement was made to you by Mr Tony Leon, you then merely passed that information on to your investigating officers and you have never followed up precisely what was done regarding the complaints made by Mr Leon and by Mr Mufamadi himself?

MR FIVAZ: Certainly Chairperson, the police service is a very big organisation, I just don’t have the time to attend to every investigation - that’s the one side of the issue. The second side of the issue is, if you submit a docket to the Attorney General for reconsideration then of course the Attorney General will normally - if that person finds it necessary to obtain certain additional statements over and above what you have in the docket, that instruction will come

&#9;I never gave the instruction for a statement of that nature to be taken, that was most probably not in my hands at that stage, it was in the hands of the Detective Branch where you have a Detective Chief which I have instructed: "To make sure that you are going to investigate this matter thoroughly and that you are going to follow up all possible loose ends". So I never gave any direction from my side to follow that up.

MR KADES: Lest it be thought Mr Commissioner, that I’m criticising you with regard to your actions in this regard, rest assured that I’m not, I’m merely seeking information.

CHAIRPERSON: Mr Cades, I had reassured the Commissioner that we would - he was due to have left at 2 o’clock and I asked whether he could go on until 2.30 p.m. and I think the panel here also wants to ask some questions. Let me give you one more question..

MR KADES: I have no further questions thank you. I’ve not been intimidated by the Chair.

CHAIRPERSON: I’m glad, nobody is ever.

MR : Mr Chairperson, if I may just ...[intervention]

CHAIRPERSON: One.

MR : One aspect I would like to canvass. 

&#9;Commissioner Fivaz, are you aware that there were allegations that bodies had been thrown into a mine dump - that emanating from John Morgan?

MR FIVAZ: Yes, I am aware of that Chairperson. 

MR : I would presume that if there was to be an investigation as to whether bodies are indeed there, that would be a fairly expensive operation?

MR FIVAZ: If we are talking about excavations etc., it is extremely expensive.

MR : What level of authorisation would be required to authorise the police force to actually undertake such an investigation or recovery operation?

MR FIVAZ: That normally will take place in conjunction with the Attorney General to get permission for an ordinary excavation when a person is buried under normal circumstances. If the person is not buried under normal circumstances, of course the police service can take the initiative and they can excavate.

MR : Last question, do you know whether there has been any initiative in this regard?

MR FIVAZ: I’m quite sure Chairperson, that there were initiatives and I think there were detectives involved in that and I can commit myself to find out exactly who those people were and I can give the names to the TRC.

MR : Sorry, just lastly, do you know if there’s any intention on the part of the police services to actually undertake a search in a mine shaft?

MR FIVAZ: What I was saying Chairperson, I think we have already initiated from the side of the police service - if we are talking about the same incident. We have already initiated from the side of the police service a search, how far we are and whether we have achieved specific results and what results, I’m not quite aware about but that information could be made available to the TRC.

MR : Thank you Mr Chair.

CHAIRPERSON: Thank you. Fazel?

DR RANDERA: Commissioner, I just want to come back to what you started about how the investigation was initiated into Doctor Asvat’s death. Is it fair to assume that in coming to this hearing - I understand that this is handed over to the Attorney General, but is it fair to assume that in coming to this hearing you would have gone back and done some homework on the deaths of Sono as well as Asvat - that perhaps you have asked for those dockets from the Attorney General and gone through them?

MR FIVAZ: Chairperson no, I haven’t done it and I never thought it necessary to do it because there are first hand eye-witness testimonies that the TRC is going to hear on that. I’ve indicated in my opening remarks when I was questioned about the investigators, that I haven’t got any doubt in my mind that those people are people with integrity, they are well experienced investigators and so I haven’t done it.

DR RANDERA: Commissioner, I want to come to this question of informers. We heard yesterday and today that perhaps there was third force activity going on at the time when the Mandela United Football Club was functioning, we’ve also heard about Operation Romulous to discredit Mrs Mandela. What I’m trying to understand is that - and you yourself said when asked by Mr PIGOU about other informers, that you’d looked into it and you haven’t been able to find other files but it does - I find it interesting that we find information concerning Mrs Mandela and that there’s an informer suddenly that comes up, is it possible then for us to construe that perhaps there’s still a third force functioning within the police force? 

&#9;I take your point that you have the greatest faith in your investigators because it’s been mentioned at other times particularly in regard to what’s happening in KwaZulu Natal - the term third force has been used even by our President, now is that possible. Let me just make one more point, we’ve had communication with the police services throughout the country in terms of the period we’re looking at and yes, we’ve had co-operation but often when information is asked for, we have been told that either the information has been destroyed or there’s not information. 

&#9;I just find it very interesting that suddenly we have this information coming up at a time when not only the Mbatha and Dlamini’s are being questioned again but also the issue of Mrs Mandela is coming up to, perhaps you could comment on that.

MR FIVAZ: Chairperson, I’m totally convinced that there’s not third force in the police service and why I’m saying it, I think we also have a very competent structure in our crime intelligence component which will most definitely identify any sign of that in our structure and in National Intelligence and South African Secret Services as well.

&#9;I think we shouldn’t get confused with the issue of corruption in the Criminal Justice System and where we have made numerous statements saying that we are very concerned and where we have many, many examples of arrests of police officers and court officials where they are involved in the destruction of police files or evidence in court or the selling of police dockets and that type of thing. 

&#9;But certainly I think or rather I’m convinced that we don’t have a third force operating in that sense, trying to cripple the activities of the TRC or any other institution trying to find the truth - I’m convinced that we don’t have it. I’m not saying that we don’t have people who are not willing to participate, I’m not that naive. 

&#9;I think we still have a lot of people who are not willing to participate in the process but that’s a different issue. From my side and from management side we have always tried to sensitise our police officers in the South African police service to assist the TRC and to co-operate with the TRC wherever possible - that is really my answer.

CHAIRPERSON: Yasmin?

MS SOOKA: Commissioner, I’d like to ask a question about the payment of sources, how do you check the information that the source gives you and whether that’s accurate and secondly, is the money returned if the information is inaccurate?

CHAIRPERSON: Order.

MR FIVAZ: Chairperson, certainly we haven’t involved - as far as I know, ourselves from management side to recover any informer fees of the past, that we don’t do in practice. There is a specific process where the handler of an informer for instance or the investigating officer of a case, will have to prove at least by means of a proper motivation that that person will render useful services to the State and only then it will go through a channel and it will be approved.

&#9;I must tell you that the whole procedure around informer fees has been changed considerably from the old police service to what we have today in terms of control mechanisms. As a matter of fact I’m appearing before a Committee of Parliament every year and explaining to them exactly what projects we have, on what we are spending, how far we are, are we making progress and we are really monitoring the process to such an extent. 

&#9;Once again I’m not saying that the system is not open for abuse, you still have the possibility of abuse in a system like that because you are talking about a Secret Services Fund, it’s not open for every person to see and audit, you have a special arrangement in terms of legislation for auditing etc., etc. 

&#9;But the bottom line is, the person who signs that claim eventually, the Assistant Commissioner and up - I explained, that person has to make 100% sure that the facts are correct and that we are indeed in a position of saying to the Auditor General later on: "We have received value for money".

MS SOOKA: But then that Assistant Commissioner would obviously have to rely on the handler of the informer because it would be very difficult for him to check the facts?

MR FIVAZ: I’m 100% sure what normally will happen in practice, when there are any doubts in the mind of that Assistant Commissioner, you can do the following: he can call for the police docket or he can call for the project but the point is, that person must make sure when he is signing that document in terms of approval, that person must be 100% sure that the facts are correct and that we are indeed going to receive value for money.

MS SOOKA: So in this instance the person who arranged for the payment to be made would in fact be able to tell us whether he received value for money?

MR FIVAZ: That’s correct, that’s correct Chairperson.

MS SOOKA: Thank you.

CHAIRPERSON: Commissioner, thank you very much, you may stand down. Have a nice week-end.

CHAIRPERSON: We recall Charles Zwane.

MR VALLY: Archbishop, we just need about three minutes, the covering of the TV lights has come off and it’s hurting our eyes here but the TV people are here to remedy the situation.

HEARING ADJOURNS

COMMISSION HAS PROBLEM WITH LIGHTS

CHAIRPERSON: Order please, will people settle? You don’t want me to keep repeating myself do you? Order please! Will people settle down, stop walking about or standing, thank you.

&#9;Mr Zwane, we want to remind you that you’re still under oath and we hope you have recovered, thank you.

CHARLES ZWANE: (s.u.o.)

CHAIRPERSON: We had finished - oh, I beg your pardon, we hadn’t Miss ...[indistinct]

MISS: Charles, we stopped at the time when I confirmed your statement to the TRC when you were tortured to make a confession.

MR ZWANE: I still recall.

MISS: We understand your emotionality herein as it was this confession that led to your conviction and to your sentence to death for nine counts of murder inter alias and 42 years collectively.

CHAIRPERSON: I don’t think I have the co-operation of this audience, please keep quiet, thank you.

MISS: Charles, can you tell us about this torture that you underwent and how you came about to give this confession to the police and ultimately to a Magistrate?

MR ZWANE: I was arrested - as I’ve stated before, for the hand grenade blast at a certain house in Orlando West and I was taken to Protea Police Station where I was told I’m detained under Section 29. I made my statement pertaining to the incident which I was arrested for and being under Section 29 - after a couple of months being there in Section 29, the officers came back and they told me that they’ve checked the firearm which they got from that commander and that it was used in an incident which took place at Chile’s house and they stated other incidents in Soweto.

&#9;They said I should have information because I was there with my commander in those incidents. I disputed that but they took me in the rooms which they call: "Die Waarheid Kamer" at ...[indistinct]

MISS: Sorry, they called it: "The Waarheid Kamer"? Yes, go ahead. What exactly did they do to you?

MR ZWANE: They choked ...[indistinct, witness disturbed]

CHAIRPERSON: Hallo, for ...[indistinct] of us, I have said to you I trust your sensitivities, this is the second occasion where you have made me doubt your judgment.

MISS: Are you all right?

MR ZWANE: Yes, I’ll continue.

MISS: Okay, take your time and tell me what they did to you.

MR ZWANE: They put me in the room, there were two officers and I still recall the one by the name of Havenga, they put the electronic on both my ...[inaudible] fingers and I tried to resist that electronic shock - I said nothing. They took it out and they put it on my toes, I couldn’t take it and I was forced by the consequences to admit the crimes I have never committed.

MISS: Charles?

CHAIRPERSON: I think just give him a moment to recover.

&#9;You do want to go on?

MR ZWANE: Yes.

CHAIRPERSON: Okay.

MR ZWANE: Then the following day I was taken to the Magistrate to make that statement to acknowledge the crimes I never committed. I did as they ...[indistinct] because I knew at their hands at Section 29 they could kill me, they could do anything and my parents couldn’t visit me or see me. To save my life I did as they wanted and as a result I’m here today.

MISS: Charles, in effect you were forced to confess to 38 charges including 9 of murder, 22 counts of attempted murder, arson, possession of firearms and ammunition?

MR ZWANE: Yes.

MISS: I want to continue to your trial within the trial, it was stated that you never alleged to any family members that you were tortured, that you never visited a doctor and that you never laid a charge against any policeman for this torture, can you explain this?

MR ZWANE: Yes, I will try. I was an activist and I knew what you would undergo if you are detained under Section 29 and that was my second time. They allowed my parents to visit me twice but I couldn’t tell my parents because they were going to leave me there and no-one was there to help me. 

&#9;Being a detainee under Section 29, when you see the doctors and you report that they assaulted you, the doctor will take that thing and show it to them and then you will be continuously tortured by these people, so I took no chance to tell anyone until a later stage when I was charged and I then informed my uncle.

MISS: You say you informed your uncle, who was this?

MR ZWANE: David Zwane.

MISS: David Zwane. Did you ever tell your girlfriend?

MR ZWANE: She wasn’t given permission to visit me.

MISS: Charles, I just want to allude you to your alleged evidence in your confession when you said that Mrs Chile’s house was bombed because the Mandela United Football Club wanted revenge for the killing of Maxwell Madondo, the Mandela Football Club believe that Sibusiso Chile killed Madondo. Do you know anything about this?

MR ZWANE: As I stated before, I knew that there was friction between Sibusiso and ...[indistinct] and I went to Sibusiso to find out what was going on and he told me that he was fighting with the Mandela Football Club guys. So, I was aware there was - although I didn’t witness them fighting ...[indistinct], I just heard that as I heard it from ...[indistinct] - by the rumours in the township that there was friction between ...[indistinct] and the Mandela guys.

MISS: Charles, do you still deny knowledge of the arson of Dudu Chile’s house and the murder of Finkie despite a High Court finding you guilty of this?

MR ZWANE: I still deny it and I don’t think it’s the High Court who made me guilty, the security police made me to be guilty, not the High Court - I was taken there guilty already.

MISS: I’m just going to ask you two questions now. Winnie Mandela’s statement in camera to the TRC makes reference to the fact that you stayed at her house, did you ever stay at her house?

MR ZWANE: No, I usually visited the house but I never stayed at Mrs Mandela’s place, I always stayed with my parents.

MISS: Why would she allege that you stayed at her home?

MR ZWANE: I cannot answer for her, with respect.

MISS: Thank you Charles. Thank you Mr Chair, no further questions.

CHAIRPERSON: Thank you very much. 

&#9;I just want to find out again whether you feel you are able to continue?

MR ZWANE: I’m able Sir.

