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&#9;TRUTH AND RECONCILIATION COMMISSION
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 &#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY COMMITTEE

DATE:&#9;02-11-1999

MATTER:&#9;WITHDRAWAL OF APPLICATION - H NCUBE

DAY:&#9;&#9;2

--------------------------------------------------------------------------ON RESUMPTION:

CHAIRPERSON: Good morning everybody. I apologise for the slightly late start, but I am informed that the traffic on certain roads is very heavy and that caused a delay, getting certain people to the hearing. Any inconvenience is regretted. Yesterday I introduced the panel, we are starting some new matters today, so just again I will introduce the panel. On my right is Mr Acting Justice de Jager, member of the Amnesty Committee, he comes from Pretoria. On my left is Adv Sigodi, she is also a member of the Amnesty Committee, and she comes from Port Elizabeth and I am Selwyn Miller, Judge, I come from the Transkei, Umtata. Mr Motepe, which matter will we be commencing with this morning?

MR MOTEPE: I am instructed to commence with the matter of Ncube, Hamilton Ncube. Before we can proceed, I have been instructed that I withdraw the application by the applicant himself.

CHAIRPERSON: Fine, thank you. Is it Mr Ncube standing next to you?

MR MOTEPE: Yes, that is correct.

CHAIRPERSON: Do you confirm that Mr Ncube?

MR NCUBE: Yes.

CHAIRPERSON: Yes, well, thank you. Then that matter will then be withdrawn. The application is withdrawn, yes.

MR MOTEPE: As it pleases the Committee. 

CHAIRPERSON: Sorry, I think if you could just put yourselves on record. Mr Motepe, just put yourself on record for the purposes of the record.

MR MOTEPE: My name is Adv Jabu Motepe from Pretoria Bar, appearing for the applicant in this matter.

CHAIRPERSON: Thank you.

MR VAN DER WALT: Thank you Mr Chairperson, my name is van der Walt, from Pretoria Bar, I am appearing on behalf of the victims, the Bekker family.

CHAIRPERSON: Thank you.

MS LOCKHAT: My name is Lynn Lockhat and I appear on behalf of the Truth and Reconciliation Commission, thank you.

CHAIRPERSON: Thank you. Well, then in that event, then the application of Mr Ncube is withdrawn and there will obviously then be no need for a hearing in this matter. 

MR VAN DER WALT: Thank you Mr Chairman, may we be excused?

CHAIRPERSON: Yes, certainly, thank you Mr van der Walt.

MR MOTEPE: Thank you Mr Chairman.

MS LOCKHAT: Chairperson, if you could just indulge us for a while, the next matter on the roll was the Nkosi matter, but I just want to ask the Committee if we could adjourn for a while, in order for Adv Motepe just also to consult with his client?

CHAIRPERSON: Yes, this is matter number 6 on the roll? Is that right?

MS LOCKHAT: That is correct Chairperson.

CHAIRPERSON: And you want us just to take a short adjournment and then you will let us know when you are ready to recommence?

MS LOCKHAT: Yes, Chairperson.

CHAIRPERSON: Yes, thank you. We have just been informed that the legal representatives require a bit of a break before the start of the next matter, which will be the application of Mr E.M. Nkosi and we will then take a short adjournment and as soon as they are ready, we will start with that hearing, thank you.

MS LOCKHAT: Thank you Chairperson.

MR MOTEPE: Thank you.

COMMITTEE ADJOURNS

NAME:&#9;GEORGE S. MOGAPI

APPLICATION NO:&#9;AM6037/97

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ON RESUMPTION:

CHAIRPERSON: Yes, thank you. I see now, what I said earlier, has been proved wrong again. We won't be proceeding with matter number 6 on the role, Mr Nkosi's matter, but we will be concluding hopefully matter number 1 on the roll, proceeding with the matter that we finished with yesterday. Mr Kopedi?

MR KOPEDI: Thank you honourable Chairperson and Committee members. Yesterday when we adjourned, we were about to call Mogapi. He is here before you and ready to be sworn in.

CHAIRPERSON: Thank you.

GEORGE S. MOGAPI: (sworn states)

MS LOCKHAT: Chairperson, if I can just interrupt for a brief moment. Mr P. Viljoen, he is one of the victims in the incident Chairperson, and he was yesterday, he was looking for the place and he couldn't find it, and then today he arrived fortunately, so I will be acting on behalf of Mr P. Viljoen in this matter, thank you Chairperson.

CHAIRPERSON: Thank you Ms Lockhat. Mr Kopedi?

EXAMINATION BY MR KOPEDI: Thank you Chairperson. Mr Mogapi, is it correct that you are a co-applicant in this matter?

MR MOGAPI: That is correct.

MR KOPEDI: It is also correct that you were present here yesterday when you fellow applicants gave evidence?

MR MOGAPI: That is correct, I was here.

MR KOPEDI: Now, Linda Mntambo, he gave evidence to the effect that you were a member of an underground MK unit, to which he belonged to, is that correct?

MR MOGAPI: That is correct.

MR KOPEDI: Now, when did you join this MK unit?

MR MOGAPI: It was in 1988.

MR KOPEDI: Were you also a member of the ANC?

MR MOGAPI: That is correct.

MR KOPEDI: Now, you have heard him explain to the honourable Committee members as to the operations which he was involved in together with yourself, is that correct?

MR MOGAPI: That is correct, I heard.

MR KOPEDI: Can you confirm the contents of his evidence?

MR MOGAPI: I agree fully with him.

MR KOPEDI: Is there anything that you would wish to add to what he stated here?

MR MOGAPI: There is nothing that I would say except to say all that he said, is true.

MR KOPEDI: Are you satisfied that you have complied with the requirement of full disclosure by confirming what he has said, you have fully disclosed to this honourable Committee, all the relevant and material facts?

MR MOGAPI: That is correct.

MR KOPEDI: And perhaps one final question, in all the operations you were involved in, did you receive any personal gain such as material or financial?

MR MOGAPI: Nothing of that sort happened, I never gained anything, not money, nothing.

MR KOPEDI: Perhaps finally, are you also satisfied that all the operations you were involved in, had a political objective?

MR MOGAPI: That is correct.

MR KOPEDI: Chairperson, that will be the evidence of Mr Mogapi.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Thank you Mr Kopedi. Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Thank you Chairperson. Mr Mogapi, did you work for Soweto City Council?

MR MOGAPI: Yes, I was working at the Water Branch.

MS LOCKHAT: Did you have any contact with a Mr Monamodi at the City Council?

MR MOGAPI: I was working with Mr Monamodi at the Soweto City Council at the Water Branch, we worked at the same department.

MS LOCKHAT: Is it correct that you were the person that informed your other comrades in relation to the activities of Mr Monamodi?

MR MOGAPI: The part of the information came from my side, I gave it to the comrades about Mr Monamodi.

MS LOCKHAT: When you say part of the information came from your side, who contributed to the other part of the information?

MR MOGAPI: Other workers at the plant.

MS LOCKHAT: What information did you yourself deliver regarding Mr Monamodi?

MR MOGAPI: The information that in 1988 when we were on strike, Mr Monamodi was not co-operative, in other words he did not want the strike to go forward. He wanted the workers to carry on working, whilst the workers were complaining about their wages. That is the same strike that led to certain problems at work, some of the workers never got back to work, they went on strike.

MS LOCKHAT: Well, Mr Monamodi's instructions are that he always participated in the strike, that he was not non-co-operative, can you comment on that?

MR MOGAPI: That is what he said. I cannot stand against that, but I want to say he did everything under duress, he did not want to, because there was this thing that if a person did not take part in the strike, the workers would be putting their eyes on him as to what leads this person not to take part in the strike.

MS LOCKHAT: Mr Monamodi also said that he, the information that was given to your comrades and to your Commander, was that he was part of management, and that was also incorrect information, that he was actually a plumber there, can you comment on that?

MR MOGAPI: Yes, it is true, he was a plumber. He was a plumber and at the same time, he was promoted to a foreman. A foreman was part of management.

MS LOCKHAT: Did you know Mr Monamodi before this took place, did you know him personally, on a more personal level? Did you not grow up in front of Mr Monamodi?

MR MOGAPI: No, when I started working at the Soweto City Council, that is the time when I first knew him. If I recall the date, it was in 1984 when I started working at the West Rand, today it is called Soweto City Council.

MS LOCKHAT: So would you say that all the information that was given, in your mind, all the information that was given to your Commander was the correct information and that you were satisfied that when Mr Monamodi's house was going to be targeted, that you were satisfied that that was the proper action to take in the circumstances?

MR MOGAPI: I have mentioned already that I fully agree with all that Mr Mntambo has mentioned. Every step that was taken when we were together, discussing, and was given to us by the Commander, I would not in any way say to the Commander "no, we are not supposed to do it this way, we have to do it this way". I was not a Commander, the Commander gave us the order to go and execute according to how he saw it necessary.

MS LOCKHAT: I want to move on to the next incident, that is the armed robbery incident. What was your role in that specific incident, what was your orders and instructions, in your participation in that incident?

MR MOGAPI: I was the driver of my co-workers from the robbery point to the last point.

MS LOCKHAT: Did you have a firearm?

MR MOGAPI: I did not have anything, I just drove.

MS LOCKHAT: And did any of the other applicants have firearms?

MR MOGAPI: The person who had a firearm, was one. We were four, it is only one person who had a firearm, it was Linda Mntambo. The others did not have firearms.

MS LOCKHAT: Why I ask you this is because Mr Viljoen will say that more persons were armed on that day. Can you comment on that?

MR MOGAPI: Mr Viljoen is not right when he says many people were armed. When we arrived, it was - it was a lot of people, it was chaotic and the taking of the money happened in a very short time. I think he thought there might have been many people, yet it was only one person who had a firearm.

MS LOCKHAT: When you discussed the plan of this operation, what was the other people to do, where were they supposed to be situated at the Tattersalls, what was their location? You were going to be the driver, Linda was going to have the firearm, where were the others going to be?

MR MOGAPI: Our formation of attack provided us with four points, each one of us were supposed to be at a certain point. At the beginning of the incident, regarding to Mr Viljoen and them, everybody was supposed to move from his point to come closer and execute the order that was specifically given to him.

MS LOCKHAT: Do you know if anyone was positioned on the roof of the Tattersall building?

MR MOGAPI: Nobody among us, who was tasked to climb on top of the roof. According to my knowledge, I do not know of any who was on the roof. We were four and the four of us were on the ground, there was no time in fact to climb over the roof.

MS LOCKHAT: It is not a matter of the time, it is a matter of the well planning of the operation, don't you think so?

MR MOGAPI: I have mentioned there was nobody on top of the roof.

JUDGE DE JAGER: Would you perhaps assist me, how many storeys did this building have?

MR MOGAPI: It was one floor, and it is just like this building, but it is on the ground, it is one floor.

CHAIRPERSON: So it is not just like this building, in fact? It was just a single storey building?

MR MOGAPI: Yes, it is a single storey, there is no other top floor, that is what I was trying to explain, Chair.

MS LOCKHAT: Because Mr Viljoen will say that someone indeed was on top of the roof, surveying the security guards, and that that particular person also shot at one of the security guards, and the bullet did in fact injure the person, it went through his chest. Can you comment on that, you don't have to?

MR MOGAPI: I mentioned and I want to repeat, there was nobody on top of the roof, Mr Viljoen did not see clearly, there was nobody on top of the roof.

CHAIRPERSON: Sorry, Mr Mogapi, you said that there were four points and each person had a point and then on the command, they would move in. What point did you have?

MR MOGAPI: It is one of the four points, whereby I was tasked to drive a getaway car, to take the money out of that area.

CHAIRPERSON: So you didn't get out of the car, you just sat in the car the whole time?

MR MOGAPI: That is correct, I was in the car, I stopped next to Mr Viljoen and his co-workers and we loaded the money, and they ran away.

MS LOCKHAT: I just want to refer to page 63 of the Bundle, in your criminal trial, the third paragraph, the last paragraph, it is that Popo Tshabalala had given evidence and it was stated that yourself, Linda, Ronnie and Andrew came to her house and gave her R500-00 for assisting you. Can you comment on that, where did the R500-00 come from, why did you give it to her?

MR MOGAPI: There is a certain money that I know was taken out, I do not know who took the money to Ms Popi, to take care of the transportation of Linda to the hospital.

JUDGE DE JAGER: Was that after Linda was out of the hospital already, at that stage, when the money was taken out and given to Popo?

MR MOGAPI: I do not recall, but I think it was after he was released from the hospital.

MS LOCKHAT: But wasn't this for the transportation to take Linda to the hospital?

MR MOGAPI: It was money to take care of the transportation to and fro, or whether there is a problem when he is at home, he must be taken to the hospital. This money was supposed to be used for the health of Linda, but in terms of transport.

JUDGE DE JAGER: On page 60 at the bottom, according to the evidence of Popo, this happened about - well, after he was out of hospital, about two weeks, and according to the evidence, he, Mr Mogapi, Linda, Ronnie and Andrew were all together when this money was handed to Popo?

MS LOCKHAT: I am indebted to you, thank you.

CHAIRPERSON: Will you agree with that, Mr Mogapi?

MR MOGAPI: What I am saying is there is a money that was taken out, I do not remember, but it was me and Sazi and Linda. I do not remember a day where the four of us or the three of us took money to Sister Popo. Who took the money, I do not remember, but I do remember for a fact there was a money that was taken out. I heard that a money was taken to her. How much the money was, I do not recall. How much money was given to the hospital, I do not know.

MS LOCKHAT: Thank you Chairperson, I have no further questions for this witness.

NO FURTHER QUESTIONS BY MS LOCKHAT

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

MR KOPEDI: Nothing in re-examination, thank you.

NO RE-EXAMINATION BY MR KOPEDI

CHAIRPERSON: Judge de Jager, do you have any questions you would like to ask?

JUDGE DE JAGER: Do you know Veronica Mabuza?

MR MOGAPI: She is one person who gave evidence in court.

JUDGE DE JAGER: And she was Linda's girlfriend?

MR MOGAPI: Yes, that was Linda's girlfriend.

JUDGE DE JAGER: Can you still remember what she said at court?

MR MOGAPI: Even though I would not recall well, she was called into the witness box to give evidence against me. I - she was just mumbling, I do not recall exactly what she said. Chairperson, would you assist me as to what she said?

JUDGE DE JAGER: Yes. She told the Court according to the record, that you and Linda visited her and that you brought money in a bag of First National Bank, can you remember such an occasion?

MR MOGAPI: Chairperson, that is what she said in court, I remember she said that. That I visited Linda or we visited Linda at home with money in a bag, there is nothing of that kind, I have never done that.

CHAIRPERSON: I think what she said was that you and Linda visited her, coming with this First National Bank bag that contained money?

MR MOGAPI: I do not know that. That is her evidence in the court against me, I have never visited her. Where did we visit her, because she lived with Linda in the house?

JUDGE DE JAGER: And she further testified that Linda requested her to keep this money in a wardrobe, in your presence, can you remember that?

MR MOGAPI: I do not recall that. I do not recall anything relating to that.

CHAIRPERSON: Sorry, by that answer Mr Mogapi, I don't quite understand what you are trying to say, are you trying to say well, you cannot remember, it might have happened, but you cannot remember, or are you saying it did not happen?

MR MOGAPI: Chairperson, I mentioned that I never visited her, because Linda stayed with her in the room. I never visited Linda in that room, or I never accompanied Linda to that room. They were - they lived together, so how would I go there? I have never been there. We have never been together with Linda and instructed her to put it in the wardrobe, I don't know anything about the money. It is not a question of recalling or not recalling, nothing of that sort happened.

JUDGE DE JAGER: So although you and Linda operated together, you never visited him at home?

MR MOGAPI: We had our meeting areas. We did not want - who lives where at the end of the day.

JUDGE DE JAGER: And you weren't present when the money was handed to Popo, or were you?

MR MOGAPI: I was not present.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: Can you think of any reason why Veronica Mabuza should testify as she did, why would she go to court and say that?

MR MOGAPI: There are many things that might have made her to give evidence against me in court. The first thing is when I was arrested, I never co-operated with the police. The second point is the person who was supposed to testify against us, was intimidated. According to how I saw that person giving evidence in court against me, he was not himself, he was, he looked scared. In other words what he was doing, he was doing forcefully, he was just doing it because he had been told to do so by the police. I thank you Chair.

CHAIRPERSON: Thank you. Adv Sigodi, do you have any questions you would like to ask?

ADV SIGODI: Yes Chairperson. At the time of the robbery, did you personally know what the money that you had obtained, was going to be used for?

MR MOGAPI: I had knowledge, a little knowledge though that this money was supposed to be used for the transportation, for releasing our Overall Commander who was at the Johannesburg Hospital.

ADV SIGODI: In your mind, was it necessary to obtain money to release him from the hospital? Wasn't it possible to just go in as an MK unit and just get the person out of hospital?

MR MOGAPI: It was necessary to do as planned, because we sat down with our Commander, Mr Bles, all of us, the comrades and the decision reached was that he must be released from the hospital through money, to avoid bloodshed, so that nobody gets injured at the hospital. Because a hospital is a very busy place, now if we carry guns and go to the hospital, and shoot at people, that would be no good at all. Our duty was not to bring hardship to the people who were supposed to protect lives. We needed money to avoid injuries. The police had already been infiltrated, those who were guarding our Commander, that is according to the information.

ADV SIGODI: Okay. So do you know who of the police, the name of the police who were supposed to be given that money? Who are the police who had been infiltrated?

MR MOGAPI: I do not know any of them, this is the information I got from my Command and that would be the way to follow, because some of the policemen had been spoken to.

ADV SIGODI: Thank you Chairperson. 

CHAIRPERSON: Do you know what happened to the money?

MR MOGAPI: After the money was handed over to Bles, I have never known, I never came to know what happened to that money up to today.

CHAIRPERSON: Who handed the money to Bles?

MR MOGAPI: It was Andrew Mathabathe.

CHAIRPERSON: What sort of vehicle was used, that you drove when the robbery was carried out?

MR MOGAPI: It is one of these small cars, it is a Conquest.

CHAIRPERSON: You were also involved in, just to confirm, the Monamodi incident, when a handgrenade was thrown at his house, is that correct?

MR MOGAPI: Yes, but I was not with the people who threw the grenade, I was a distance away, 300 to 500 metres from Mr Monamodi's house.

CHAIRPERSON: Were you driving again there?

MR MOGAPI: I was still driving.

CHAIRPERSON: You were also involved in the incident involving the attack upon Ms or Ma Sithole's place, is that correct?

MR MOGAPI: That is correct, I was involved.

CHAIRPERSON: And what was your involvement there?

MR MOGAPI: I was the driver. 

CHAIRPERSON: And then, with the incident that took place at the premises of Dr Matsir?

MR MOGAPI: I am involved.

CHAIRPERSON: Yes, and what did you do there?

MR MOGAPI: I was still driving.

CHAIRPERSON: You were involved in one incident that took place at Mr Shomane's house, is that the first one, that was the attack upon Mr Shomane himself, is that correct?

MR MOGAPI: I am not involved in that one, where Mr Shomane was attacked.

CHAIRPERSON: Were you involved in any incident at Mr Shomane's house, either against the tenant whose name is not known, or else against Mr Shomane himself?

MR MOGAPI: I am involved in that one, where the tenant was attacked.

CHAIRPERSON: What role did you play there?

MR MOGAPI: Still sir, I was driving.

CHAIRPERSON: Mr Kopedi, is my note wrong here, or was it recorded wrong, because I've got it the attack, before we started the evidence, when you described who was involved in where, the first attack, it was Mr Mntambo, Mogapi and Ndlungwane, but now this witness says he wasn't in the second attack on the tenants, he said it was (indistinct), Ndlovu and Mabatha. Is that a mistake then, it should be Mr Mogapi involved in the attack on the tenants, but not in the first one?

MR KOPEDI: That is right.

CHAIRPERSON: I will change that then. Yes, Mr Kopedi, do you have any questions arising out of questions that had been put by the panel?

MR KOPEDI: Nothing, no questions.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Ms Lockhat, do you have any questions arising?

MS LOCKHAT: No questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you Mr Mogapi, that concludes your testimony. Oh, sorry.

JUDGE DE JAGER: Mr Mogapi, Linda gave evidence and said he himself, Sandile and George were involved in the attack on the tenant and you are George, your name is George, isn't it?

MR MOGAPI: I am George Mogapi. I think in consultation with our legal representative, there was a problem. You must have noticed that Judge Miller picked that up and it has been corrected.

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

WITNESS EXCUSED

NAME:&#9;SAZI RONNIE NDLOVU

APPLICATION NO:&#9;AM6043/97

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ON RESUMPTION:

CHAIRPERSON: Mr Kopedi?

MR KOPEDI: Chairperson, I beg leave to call the last applicant, Sazi Ronnie Ndlovu. May he be sworn in Chairperson.

SAZI RONNIE NDLOVU: (sworn states)

CHAIRPERSON: Thank you. Mr Kopedi?

EXAMINATION BY MR KOPEDI: May we proceed Chairperson, thank you. Mr Ndlovu, is it correct that you are a co-applicant in this matter?

MR NDLOVU: Yes, it is true.

MR KOPEDI: Is it also correct that since yesterday and throughout today, you have been listening to the evidence given by the four other applicants in the matter?

MR NDLOVU: Yes.

MR KOPEDI: Now, is it also correct that you have clearly listened to the evidence given by the first applicant, Linda Mntambo?

MR NDLOVU: Yes, it is true.

MR KOPEDI: He has implicated you or rather, he has placed you on the scene in certain instances, can you confirm or deny what he has stated to this honourable Committee?

MR NDLOVU: According to what I have said, I confirm what he has said.

MR KOPEDI: Is there anything that you wish to add to what he has stated?

MR NDLOVU: Unless required ...

MR KOPEDI: You don't think there is anything to add?

MR NDLOVU: Well, so far I think everything that has been mentioned, it has just happened the way he has just mentioned it, so that is why I am saying unless the House feel that there is something that needs to be clarified.

CHAIRPERSON: Mr Ndlovu, is it correct, you were only involved, of the incidents that we have heard from the various witnesses, you were only involved in the armed robbery at the Tattersall's?

MR NDLOVU: And the other one, I think it has been mentioned again here.

CHAIRPERSON: Sorry, which other one?

MR NDLOVU: Shomane.

CHAIRPERSON: Shomane? Oh yes, sorry.

MR KOPEDI: Not the tenant.

CHAIRPERSON: It is my fault, I see your name there. That is the one on the tenant?

MR NDLOVU: Yes.

CHAIRPERSON: Just the two? 

JUDGE DE JAGER: You didn't apply for amnesty in your application, for the Shomane case? You didn't mention it at all? Is that so?

MR NDLOVU: Yes, I can see here, it is not included.

CHAIRPERSON: Sorry, who completed this form Mr Ndlovu, the one that appears on page 48 of the record? Did you do it yourself?

MR NDLOVU: Yes, I did.

CHAIRPERSON: Or did you have a lawyer doing it, helping you, what was the situation?

MR NDLOVU: I did it personally.

CHAIRPERSON: Mr Kopedi?

MR KOPEDI: Thank you Chairperson. Now other than these two incidents, the robbery and the Shomane incident, is there any other incident that involves you together with this unit?

MR NDLOVU: No.

MR KOPEDI: Now, in as far as you are concerned, do you think this Committee, honourable Committee has been given a full disclosure in terms of what you did?

MR NDLOVU: Yes, with no doubts.

MR KOPEDI: Now, did you receive any personal gain out of any of the two operations?

MR NDLOVU: No.

MR KOPEDI: Other than that, do you think that all these operations were politically motivated?

MR NDLOVU: Yes, they were.

MR KOPEDI: Chairperson, that will be the evidence from Mr Ndlovu.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Thank you Mr Kopedi. Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Thank you Chairperson. What was your role in the Shomane incident?

MR NDLOVU: We were three there, so ours was to wait outside so that when Mr Shomane comes out, so that when the person that we had come to ... (tape ends) ... so unfortunately he did not come out, so we decided to go back.

MS LOCKHAT: Were you personally armed at that stage?

MR NDLOVU: No, I was not armed.

CHAIRPERSON: Sorry, I think, is there a bit of confusion here again or not, because you say that the Shomane incidents, you went there and the person, what happened? Was a brick thrown through the window or something?

MR NDLOVU: Yes. 

CHAIRPERSON: And with the plan to entice the occupant out, when he came out, you would shoot him, but that didn't happen?

MR NDLOVU: Yes.

CHAIRPERSON: The brick was thrown, the stone, but nobody came out?

MR NDLOVU: Yes.

CHAIRPERSON: My understanding was that that was the attack on Mr Shomane, not on the tenant, whereas in my notes again, I've got Mr Ndlovu down here as the attack on the tenant, where a person was actually shot and learnt later that he died? Were you involved in that one Mr Ndlovu?

MR NDLOVU: No.

CHAIRPERSON: So, it would seem that the original names we got when Mr Mogapi's name was for the Shomane incident, it should have been for the tenant and Mr Ndlovu for - the other way round, for the Shomane incident and not the tenant?

MR KOPEDI: Yes, that is so. Maybe let me restate them. On the tenant, I have Linda, I have George, I have Sandile.

CHAIRPERSON: Yes, and Mabatha? Yes, but who is not before us?

MR KOPEDI: That is right, and on Shomane, I have Linda, I have Andrew, I have Sazi, the applicant before you.

CHAIRPERSON: Okay, so we've got that. So, Ms Lockhat, you can continue.

MS LOCKHAT: Thank you Chairperson. You were three there, who was armed, just one person?

MR NDLOVU: Yes, one person.

MS LOCKHAT: Who was that person?

MR NDLOVU: It was Linda.

MS LOCKHAT: I want to come to the armed robbery incident, what was your role in that incident?

MR NDLOVU: Since we were four and there was a driver and a person who had a firearm, so the two of us, which is myself and Andrew, Andrew was armed with a knife and I was just armless, so my role there was to take, because one of our other aims was to even disarm the security there, so I was to take the guns from them and also take the money to the car. We had divided that operation into four.

MS LOCKHAT: So you were going to disarm the security guards, you had no weapons on you, you were disarmed and take the money, how were you going to do that?

MR NDLOVU: Well, by disarming actually mean if this other guy, which is Linda, is going to point at these two guys with the firearm, so mine was to go, to come to them and take their arms, because their arms were here, so mine was just to go and take the arms. I would not do that having an AK47 at the very same time, so it was not possible for Linda to do all those things, to take the guns and even to point them, because we only had one gun at that point, which was the gun that Linda was having.

MS LOCKHAT: So did you feel quite comfortable with this operation, seeing that there were security guards, they were all armed, there was more than one, there were three security guards, armed and here you were, four guys, one armed, didn't you feel uncomfortable about going into a situation like that?

MR NDLOVU: Of course when we are planning something of this sort, we are going to feel uncomfortable, but because our primary objective was to overcome and win this, so we had to do it nevertheless.

MS LOCKHAT: Because Mr Viljoen will say that there were more than one person armed on that day? Can you comment on that, you don't have to?

MR NDLOVU: Well, it is unfortunately he is going to say that, but I understand his situation, because that thing happened in an unexpected manner. Point number one, he might have thought that there were so many people armed that day because he was under so much pressure that there was a gunfire, and all the noise on the surroundings of the people, so anything, it is possible for a person who was attacked by then, I cannot blame him for that, but truly speaking, there was only one person armed that day.

MS LOCKHAT: And Andrew had a knife?

MR NDLOVU: Yes.

MS LOCKHAT: And then, tell me where was Andrew situated?

MR NDLOVU: Andrew was in such a position that he would see these people, when they come out with their money, then give the signal to me, which I am going to relate the signal to the guy who was driving the car, because Linda was still inside the car, so we positioned in such a way, because I was across the street and Linda was just nearby, so that nobody could suspect us because we never wanted to be a group, just there, but we saw them when they went in, so we started to strategise and take the positions, then when Linda gave me the signal, then I also gave the signal to the guys who were in the car. That is when the car came nearer to the place and they off-loaded Linda so that the car could come the other way.

MS LOCKHAT: And Andrew, was he close to the door of the Tattersall's, or in relation to the vehicle where the security guards were in, where was he?

MR NDLOVU: That place is situated next to the main road, so it is possible for a person just to stand in front, just nearby the road as if he is waiting for the taxi, so that is where Andrew was standing at that point in time.

MS LOCKHAT: Do you know how many people were injured on that day besides your own comrades?

MR NDLOVU: No, I don't have any idea.

MS LOCKHAT: Because Mr van Vuuren and the other security guard was injured. Mr van Vuuren suffered, they shot him in the arm and the leg, and then the other security guard was shot in the chest? And do you know of anybody perhaps being on the roof?

MR NDLOVU: Amongst the people I was with, there was nobody at all which was on top of the roof, because it was not even possible for us to climb to the roof, because that place is situated - at the back of it, is Chicken Licken, so I am just imagining, where would one effort to climb the roof, because there is a store here, Chicken Licken, and this side people are busy doing this business of toting, so it is not possible for anyone to can climb on the roof of that place.

MS LOCKHAT: And tell me, after the incident, did you have any contact with the money?

MR NDLOVU: Yes, what happened is after that incident, just a day after the incident, we went straight to the place where we discovered that Linda has been shot also, so that is when we decided to take Linda to hospital. But myself, when they took Linda to hospital, they decided to leave me behind, so that I could look after the money which was there and after the car again, because already the police were looking after the car which was on the scene. So I did not personally go to the hospital with them. I just remained behind until they came back, and after that, when they left Linda in the hospital, George because he was, they had Ms Popo's car, so they took us back to the place where, that is Andrew, the money was left with Andrew thereafter, so that we waited for our Commander which was Bles, to come back to Andrew, so that Linda - Andrew would report, would give the whole report to Bles, and give him the money.

MS LOCKHAT: And you were also with them when they gave some money, R500-00 to Popo Tshabalala, is that so?

MR NDLOVU: Some R500-00?

CHAIRPERSON: Some amount of money, were you present when an amount of money was given to Popo Tshabalala?

MR NDLOVU: What I could quite remember is that when, there was some amount of money which was taken out immediately when Linda was taken to hospital, so I cannot quite remember how much money was that, but there was a substantial amount of money that was taken during that day, so when they personally gave it to Ms Popo, I was not there presently, because they left me behind by then.

MS LOCKHAT: And just to - for my own, who is Ronnie?

MR NDLOVU: It is myself.

MS LOCKHAT: Because at page 63 Popo Tshabalala says, just the third paragraph, the accused, that was Mr Mogapi, Linda, Ronnie and Andrew came to her house where George had given her the money for her assistance in this whole incident. What is your comment on this?

MR NDLOVU: After the incident she said we came to her house to ...

JUDGE DE JAGER: ... after he was released from hospital?

MR NDLOVU: You know, I think that might be possible because this is something that happened a very long time, it is about ten years' time ago from now.

MS LOCKHAT: Do you know what happened to the money after it was given to Andrew and to your Commander, do you know anything else that could assist us?

MR NDLOVU: With the report I got from, report back I got from Andrew is that he gave the money to Bles, as it was supposed to happen, so after that short period of time, because it was during the festive season, we just stopped operating by then, because Linda was still, was still not right in as far as health was concerned. After that time, when we were supposed to resume, then we got arrested. I never personally got in touch to contact with Bles at that time.

MS LOCKHAT: Did you know that armed robbery was not part of the policy of the ANC?

MR NDLOVU: When you are talking about policy, it is true, it might not be part, but given the reasons that we were operating under, it was necessary and it was a primary solution for our problem that we had by then.

MS LOCKHAT: Did you say the sole reason for getting this money was to release your Commander from hospital?

MR NDLOVU: Amongst other reasons. It was one of the reasons, because we had the reason of releasing our Commander which was a primary reason, secondary to that, we needed to have weapons because we only had operated with one AK47 for a very long period of time, so another thing, we needed money to fund our unit, so that it can get working, so we had a number of reasons that made us to want to have money.

MS LOCKHAT: Tell me, did you at any stage apply for indemnity for any of the incidents?

MR NDLOVU: Whilst I was still in prison, yes, I did.

MS LOCKHAT: And what happened in that application of yours for indemnity?

MR NDLOVU: I was released unconditionally.

MS LOCKHAT: Are you serving a service for another offence?

MR NDLOVU: Yes.

MS LOCKHAT: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you Ms Lockhat. Ms Kopedi, do you have any re-examination?

MR KOPEDI: Nothing in re-examination, thank you Chair.

NO RE-EXAMINATION BY MR KOPEDI

CHAIRPERSON: Judge de Jager, do you have any questions?

JUDGE DE JAGER: None, thank you.

CHAIRPERSON: Adv Sigodi?

ADV SIGODI: Just one question. When you were discussing with Bles that the Fidelity guards be targeted so that you could get money to rescue your General Commander, did he tell you how much money was needed to pay the police?

MR NDLOVU: First of all, if I can clarify this, it is not a matter that was being discussed between myself and Bles, because Bles was a Commander in the very highest position, that I could possibly had discussed that. He would give orders directly to Mntambo, so that Mntambo will liaise with the rest of the unit, because we operated in a pyramid sort of situation, because there was the highest and there was the one who followed him, until to the last subordinate. We would take orders or directions directly from our Commander in the unit by then, which was Linda. So, he came to us directly and then he told us the situation that it is like this, and there are orders that we must raise some funds for one, two and three.

ADV SIGODI: Well, I got the impression from - maybe I was wrong, but I just got the impression from the previous witness that the reason why you needed money was that you did not want to cause a bloodshed in the hospital and that this was discussed together with Bles and the other members of the unit? I cannot get my note clearly there.

CHAIRPERSON: I think the last witness said, I think it was in a question in response to what Adv Sigodi put to him, saying why not release your Commander, Mr Metsing, through a normal operation, go into the hospital and physically taking him out as part of an operation, and his response was well, the hospitals are busy, that would probably result in innocent people being injured, therefore it was decided to follow the route of bribing the police and getting him out.

ADV SIGODI: And this was discussed together with Bles, and I got the impression that this was discussed with Bles, together with the unit?

MR NDLOVU: Well, you might have got that, but I don't think my name does appear in that particular place. Not every member of the unit happened to be present, maybe during some other discussions, but I happened to be present when Linda which was my direct Commander at that time, and the other members of the unit, directed me and told me. But when Bles was there, I think I was not present, because I got the report that Bles was also around, so this is just a directive which comes directly from him.

ADV SIGODI: Okay, thank you.

CHAIRPERSON: Mr Ndlovu, did you receive training, military?

MR NDLOVU: Yes, I did receive, but it was a crash course.

CHAIRPERSON: Locally?

MR NDLOVU: Yes.

CHAIRPERSON: From whom?

MR NDLOVU: From Simon Modise, Metsing.

CHAIRPERSON: That is your Commander who was in hospital?

MR NDLOVU: Yes.

CHAIRPERSON: Did you ever operate with a gun? The two incidents we have heard you didn't have weapons?

MR NDLOVU: Exactly.

CHAIRPERSON: In fact the only weapon was in the possession of Mr Mntambo, who was third in command in the unit, and the only other weapon we have heard of, is a knife?

MR NDLOVU: Exactly. So if I may clarify that, what happened, I was not just long been operating with the unit, I have just been a recruit for a short while. During the time when our Commander in Chief, which was Metsing, was supposed to give us the arms, it happened unfortunately that he was shot, so which is the other reason which made us to want to rescue him, so that we can get the other material, so that we can continue to operate. At that point in time, we only had one AK47 which we used to operate with.

CHAIRPERSON: It was normally used by Mr Mntambo?

MR NDLOVU: Exactly.

CHAIRPERSON: Mr Kopedi, do you have any questions arising?

MR KOPEDI: None Chairperson, thank you.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: No questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you Mr Ndlovu, that concludes your evidence.

MR NDLOVU: Thank you.

WITNESS EXCUSED

CHAIRPERSON: Mr Kopedi?

MR KOPEDI: Chairperson, that will be all the evidence for all the applicants, we intend calling no other witness and that is their case, Chairperson.

CHAIRPERSON: Thank you Mr Kopedi. Ms Lockhat?

MS LOCKHAT: Thank you Chairperson. The only person I will be calling is the victim, one of the Fidelity security guards, and that is Mr Viljoen.

CHAIRPERSON: To give evidence?

MS LOCKHAT: Correct Chairperson.

PHILLIPUS ANDRIES VILJOEN: (sworn states)

CHAIRPERSON: Thank you. Ms Lockhat. Sorry, what is your full names please?

MR VILJOEN: Phillipus Andries Viljoen.

CHAIRPERSON: Ms Lockhat?

EXAMINATION BY MS LOCKHAT: Mr Viljoen, did you sustain any injuries during this operation that took place?

CHAIRPERSON: I think before you start, just get what his situation was at the time. Was he employed by the Fidelity company?

MS LOCKHAT: Were you employed by the Fidelity Guard Security Services at that time?

CHAIRPERSON: The 5th of November 1988?

MR VILJOEN: Yes.

MS LOCKHAT: Can you tell us how many of you were on duty at that day, to fetch the money from Tattersall's?

MR VILJOEN: It was myself and van Vuuren and Blackie Swart and Plaatjies.

MS LOCKHAT: And tell me, were you all armed, did you all have ammunition?

MR VILJOEN: That is correct yes.

MS LOCKHAT: Can you tell us, on that particular day, what happened, in your own words?

MR VILJOEN: Plaatjies and I were in the back of the vehicle when we arrived at the Tattersall's and we wanted to climb out through the backdoor, when shots were fired. I looked through the window and I saw that Blackie fell on the ground and then we said "no, they were trying to rob us there" and then I saw the one passing the back of the vehicle, and then a vehicle came around the Tattersall's from around the back and Hennie van Vuuren, I saw him running to this side, over a fence. I saw that he did hit one of the robbers with his shot and then they left there with the money. That is all that they could take from us at that stage, the money that was there.

MS LOCKHAT: Can you tell us how many men were there, how many of the applicants, or anybody else involved in the incident?

MR VILJOEN: I saw four of them.

MS LOCKHAT: And where were they in relation to you?

MR VILJOEN: One was on the roof because he shot Blackie Swart from above, into the chest and the bullet exited at the bottom, below his ribs. And this is the one that I saw coming around the vehicle with the container with the money in it. The other one was in the vehicle, he came from behind, around and now I cannot recall where the fourth person was. I cannot recall now.

MS LOCKHAT: Did you see anybody around you with an AK47 or with ammunition, arms and ammunition?

MR VILJOEN: Yes, I saw the one that had shot Blackie Swart.

CHAIRPERSON: Mr Viljoen, was the situation that you got to the Tattersall's, did somebody, one of your people go into the Tattersall's and then come out with the money, to put it back in the truck?

MR VILJOEN: That is correct.

CHAIRPERSON: And that money that came from the Tattersall's was the money that was taken?

MR VILJOEN: Yes, that is correct.

MS LOCKHAT: I just want to clarify one issue with you regarding Blackie Swart, was he the one that was shot through the chest?

MR VILJOEN: That is correct yes.

MS LOCKHAT: And you also said to us that you thought that it was the person on the roof that shot Blackie Swart?

MR VILJOEN: Yes, because they shot him from the top and the round exited towards the bottom of his back.

MS LOCKHAT: Did you personally see the person at the top, on the roof?

MR VILJOEN: I actually saw him the first time after he shot Blackie Swart.

CHAIRPERSON: The question is did you see him on the roof or not? Or did you see him after the shooting, on the ground, when he was behind the vehicle?

MR VILJOEN: Actually the first time when I saw him, was when he ran around the vehicle.

CHAIRPERSON: So you deduced that he was on the roof because of the nature of the wound of Mr Swart, that it entered in the chest and exited below the ribs, so it was a downward trajectory of the bullet?

MR VILJOEN: Yes.

MS LOCKHAT: Did you sustain any injuries from this incident?

MR VILJOEN: No.

MS LOCKHAT: Did you receive any therapy after the incident?

MR VILJOEN: Yes, psychological therapy.

MS LOCKHAT: And how long did you still work for the security company after that?

MR VILJOEN: I still work for them.

MS LOCKHAT: Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS LOCKHAT

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

CROSS-EXAMINATION BY MR KOPEDI: Just a few Mr Chairperson. Sir, do you know how many times was Blackie Swart shot?

MR VILJOEN: He was shot once through the chest.

MR KOPEDI: Okay. Did you ever get out of your vehicle on that day?

CHAIRPERSON: While this was going on?

MR KOPEDI: Yes, at the Tattersall's, while the robbery was going on, did you get out of the car?

MR VILJOEN: No, we did not. We wanted to, that vehicle has large windows, we could see everything that was going on.

MR KOPEDI: Was this vehicle not a panel van?

MR VILJOEN: Yes, it was one of the old vehicles, it had the large windows at the back and then the door that opened towards the rear, where the armed guards sit at the back, but it had windows. It had windows, it was tinted windows.

MR KOPEDI: Okay. Is it possible that the bullet that hit Blackie Swart, could have ricocheted, that is could have hit a wall first and then came back to hit him?

MR VILJOEN: No, I don't believe so.

MR KOPEDI: I put it to you, it is possible, why not, why is it not possible?

MR VILJOEN: You see, from our side, they said it was a clean shot.

MR KOPEDI: Well, I don't understand the answer, but I will let it pass. I have no further questions for this witness.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Thank you Mr Kopedi. Any re-examination Ms Lockhat?

MS LOCKHAT: No, thank you Mr Chairperson.

NO RE-EXAMINATION BY MS LOCKHAT

CHAIRPERSON: Judge de Jager, any questions that you would like to ask?

JUDGE DE JAGER: Do you know how much money was stolen?

MR VILJOEN: No, I don't know exactly how much was stolen that day, because if we pick up the cash, then we don't know what the contents is that is in the container.

JUDGE DE JAGER: You according to the evidence, there was a note from the Tattersall's, so much silver, so much notes, you don't receive such a note?

MR VILJOEN: No, we only receive a sealed container, we don't know what the contents is.

CHAIRPERSON: Adv Sigodi, do you have any questions you would like to ask?

ADV SIGODI: Just one aspect. It was put to the applicants that it wasn't one person who was armed, could you see how many people were armed?

MR VILJOEN: I only saw one, it may be circumstances that I assumed that there were more firearms.

ADV SIGODI: You assumed, you never saw any people with firearms?

CHAIRPERSON: He said he saw one with a firearm. I might be wrong, but as far as I can recall, it was also put that there were more than four people involved in the robbery, but you say you only saw four people?

MR VILJOEN: Yes, I only saw four. From the side where I was, I only saw four. The side that I was on, there were only four.

CHAIRPERSON: Yes, because Mr Swart also, he gave evidence at the trial at one of the persons, one of the perpetrators and his evidence also seems to indicate that there were four people. He says three or four he saw in a motor vehicle and then another witness, a certain Cynthia Tsolo also said she saw three people and one sick one, four people. Any questions arising, Ms Lockhat?

MS LOCKHAT: No questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Mr Kopedi?

MR KOPEDI: None Chairperson, thank you.

NO FURTHER QUESTIONS BY MR KOPEDI

CHAIRPERSON: Thank you Mr Viljoen, that is your evidence, thank you.

MR VILJOEN: Thank you.

WITNESS EXCUSED

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: That concludes the case.

CHAIRPERSON: That means there is no more evidence then in these matters?

MS LOCKHAT: No.

CHAIRPERSON: Mr Kopedi, are you ready to make some submissions?

MR KOPEDI IN ARGUMENT: A very brief submission. Mr Chairperson and honourable Committee members, my submission is that these five applicants before you, were undisputedly members of a political organisation, being the ANC and also belonged to an underground structure of the Umkhonto weSizwe. They operated in the areas of Soweto in Johannesburg as they gave evidence. It is my submission that in all the instances where they attacked someone or property or including the robbery, all the incidents were politically motivated. I can find none of the incidents which is not politically motivated. The evidence before you also clearly shows and suggests that none of these applicants received any personal gain, and in particular, on the robbery. The evidence that was given to you is that there was a need as they were told, to execute this robbery, to get the funds to primarily free one Metsing, who was their Overall Commander. They, being locally trained cadres. They proceeded with this robbery, they did not succeed in all their intentions, in that they were not successful in disarming the Fidelity guards. One of them, being Mntambo was hit during the robbery, money was taken out and perhaps it is this money which is, I think around R5 000-00, which puts question marks, which might be translated to be it went for their personal gain. It is true that part of this money was used to pay the hospital for Linda Mntambo's medical bills, for the injury he sustained.

CHAIRPERSON: I think Mr Kopedi, if that was the case, it is difficult to say that that was for personal gain as such. Normally when you talk about personal gain, you are utilising the money although it is being used for himself, but it is not, it does not normally include payment of medical expenses of this nature.

MR KOPEDI: I am indebted, thank you Chairperson. That was the point I sought to illustrate.

CHAIRPERSON: I think, you know, when the Act talks about personal gain, the intention in committing the robbery is to get the loot for your personal gain, in other words it is a prior type of intention, that is also - one of the elements involved.

MR KOPEDI: Thank you Chairperson. Perhaps the final aspect would be to deal with the very few and I must say strikingly so, very few contradictions in this matter. Under normal circumstances, one would expect to find many contradictions, but there are very few contradictions that we have heard. The one contradiction revolves around whether or not there was a person on the roof when this robbery occurred. It is my submission that...

CHAIRPERSON: Well, we haven't got any evidence of that, because Mr Viljoen says he didn't see anyone on the roof, but he deduces it from the fact, the nature of the injury, but you know, a person could be bending down when he is shot, whatever, and one doesn't know.

MR KOPEDI: That is indeed so.

CHAIRPERSON: It becomes a more scientific ...

MR KOPEDI: Yes, perhaps the last aspect where there would be a contradiction is whether or not Mr Monamodi participated in strikes. I wish to say Chairperson, that I think that matter is not material to determining whether the applicants before you are eligible for amnesty or not. But should it be material Chairperson, I would urge this honourable Committee to be subjective in viewing this matter, subjective in the sense of putting itself in the shoes of the applicants at that time. The applicants had a genuine belief, even if it may have been incorrect, that Mr Monamodi was a legitimate target through his actions. In my mind, there would be no reason for them to attack a person who is co-operative, who is on the strike, that would be counter-productive.

CHAIRPERSON: Well, they weren't actually attacking the person, were they?

MR KOPEDI: They were scaring him off?

CHAIRPERSON: Yes, because the evidence was that they threw the grenade into the dining room, as soon as the lights were switched off, knowing that no one was in the dining room and it was to send a message, to back off or to stop whatever he was doing. Why would some, why would an attack of that nature take place unless you want to scare someone?

MR KOPEDI: Precisely Chairperson. And I would finally submit Chairperson, that all these applicants before you, have told you the truth, they have fully disclosed and it is my submission that they are therefore legible for amnesty. Thank you Chairperson.

JUDGE DE JAGER: Mr Kopedi, some of them have already received indemnity?

MR KOPEDI: That is indeed so.

JUDGE DE JAGER: Who have received indemnity?

MR KOPEDI: Other than Mr Mntambo, all of them have received indemnity, in that Mntambo was not - he was arrested, he fled and left the country.

JUDGE DE JAGER: Yes, but why are some of them still in jail, it is not for this?

MR KOPEDI: There is only one who is still in jail, Mr Ndlovu, but it is for another offence, not related to this.

JUDGE DE JAGER: Oh, not for this?

MR KOPEDI: I must also say that I have a difficult task here in that one of the would-be applicants who is in the hall, who has also been put on the scene, Mr Mbatha, on the scene of certain instances, has been denied amnesty and my belief is that he has been denied amnesty in respect of all these offences. If I am given the opportunity one would like to argue that in as far as these offences are concerned, where he was involved with these applicants before you, my submission is that he was politically motivated, he had no personal gain, and that he is also entitled to amnesty. Thank you Chairperson.

JUDGE DE JAGER: We cannot do anything about it, we are functus officio, if it has been refused in this regard?

MR KOPEDI: I concede and agree. I was told that by my learned friend yesterday that in terms of the Act, there isn't a thing that you could do.

CHAIRPERSON: You see, I think perhaps what happened, if there were to be a situation where some people get amnesty and others don't, in respect of the same incidents, and arising from that, there would appear to be some sort of inconsistency and indeed injustice, then it is correct that we are functus officio with regard to that application which has been already received, we are a statutory creature and our powers are confined by the limits of the statute and the statute doesn't give us the power to set aside our decisions, so we don't have the authority, no matter what we might feel or might want to do. We just don't have it, if we do that, it would be wrong. When I say wrong, I mean unprocedural and ultra vires, but the route would be to have a decision reviewed and set aside by the High Court, which has an inherent jurisdiction and does have authority to do that. That would be seen to be the route, if that is elected to be done.

MR KOPEDI: I think I agree with your comments Chairperson, and basically that is why we then did not even attempt to bring him in as an applicant, realising that it would be expecting the impossible from this honourable Committee, thank you Chairperson.

CHAIRPERSON: Thank you Mr Kopedi.

JUDGE DE JAGER: Did he also receive indemnity?

MR MBATHA: Yes.

JUDGE DE JAGER: Mr Mbatha, that is not an applicant, that has been refused?

MR KOPEDI: Yes, he did.

MR MBATHA: Yes.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT IN ARGUMENT: Thank you Chairperson. Just in relation to the armed robbery and the one policy relating to the ANC's policy that armed robbery is not part of their policy. The question was asked to Mr Mntambo and he said well, he didn't really know that that was the policy, and then the other applicant, Andrew as well said well, he knew that that was their policy, but they any way continued to participate in the armed robbery. Just looking at the flipside of the coin, that people on the ground, MK activists and so forth, there is a need for arms and ammunition, so it would seem that in this instance, that they felt they could ignore that policy and that they were in a position where they needed more funds and ammunition, and that no one else was going to supply that to them.

CHAIRPERSON: What is the situation, Ms Lockhat, with regard to adherence to policy? Okay, we know what the policies were of the various movements, we also know that particularly in the military wing of the movements, there was discipline, well, hierarchy and orders and one was expected to obey orders. If you are dealing with a situation where people are acting on instruction, under order, and those orders may be contrary to the broader policy of the movement, they are fighting for, what is the situation there? You know, you cannot just ignore the fact that there are orders.

MS LOCKHAT: That there are policies? Yes. Well, in terms of the persons following instructions, they would ordinarily follow the instructions of their Commander, in this incidents their Commander was Mr Mntambo and although he also had his other Commanders, it would also appear, I don't know if it is possible that he did not know about the policy, but on his evidence, it was that he didn't know that this was in fact the policy.

JUDGE DE JAGER: We had evidence in numerous applications that it was never the policy of for instance the IFP, to kill people and yet we know it happened and amnesty was granted notwithstanding the evidence that it wasn't policy.

MS LOCKHAT: I agree and therefore we should look at the circumstances ...

CHAIRPERSON: Yes, I think one has to take each case on its own merits.

MS LOCKHAT: Exactly, each case on its own merits. And in this case, the applicants was involved in a number of incidents. In some incidents, force and violence was used, but very minimal and in others, not. The issue relating to questions posed by myself in relation to the armed robbery with the - one of the applicants being at the top of the building, it has come out in the evidence ... (tape ends) ... and that he just drew the inference from the bullet wound, that it had struck the chest of his colleague. And also the fact, my submission also in relation to the questions whether there were more than one persons armed, according to Mr Viljoen ...

CHAIRPERSON: We've got no evidence to contradict that and also one wonders why would, on the versions that we have received, taking into account the admissions that they did it, that they participated in the robbery, that they shot people, etc, etc, why lie about not going on the roof, whether you are on the roof or on the ground, what is the difference?

MS LOCKHAT: That is correct Chairperson. And then just in the instance of Mr Monamodi, his instructions were that he participated in all the strikes, and the information that was obtained by the applicants, were indeed incorrect. But the inferences were drawn by the applicants through contact with them, they obviously formed a different opinion. So, that is basically my submissions Chairperson.

CHAIRPERSON: Thank you. Mr Kopedi, any response?

MR KOPEDI: No response, thank you Chairperson.

CHAIRPERSON: Thank you. That then brings this hearing to a conclusion. We will reserve our decision in this matter. Thank you very much Mr Kopedi, for your assistance in the matter and in other matters. You are finished now?

MR KOPEDI: I believe so, yes.

CHAIRPERSON: Thank you very much for your assistance.

MR KOPEDI: Thank you Chairperson and honourable Committee members. May we be excused?

CHAIRPERSON: Certainly.

MR KOPEDI: Thank you Chairperson.

CHAIRPERSON: Oh yes, I see we have sat through the tea time, I think we will take the tea adjournment now.

MS LOCKHAT: All rise.

COMMITTEE ADJOURNS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NAME:&#9;EPHRAIM M NKOSI

APPLICATION NO: AM3123/96

--------------------------------------------------------------------------

ON RESUMPTION:

CHAIRPERSON: Thank you. Are we now going to be commencing with the hearing of Mr E.M. Nkosi?

MS LOCKHAT: That is correct Chairperson. Amnesty number 3123/96.

CHAIRPERSON: Thank you, it is number 6 on the roll? Mr Motepe, could you just kindly place yourself on record?

MR MOTEPE: Adv Jabu Motepe from Pretoria Bar, appearing for the applicant.

CHAIRPERSON: Thank you Mr Motepe.

MS LOCKHAT: Lynn Lockhat, appearing on behalf of the Truth and Reconciliation Commission.

CHAIRPERSON: Thank you Ms Lockhat. Mr Motepe?

MR MOTEPE: Chairperson and members of the Committee, I have already submitted supplementary affidavits wherein we detailed the nature of the application and the offences so committed and at this stage, we have nothing further to add, unless if ...

CHAIRPERSON: Do you wish to swear Mr Nkosi in for him to 

confirm the contents?

MR MOTEPE: Should I do that Chairperson?

CHAIRPERSON: Yes, I will do that. 

EPHRAIM M. NKOSI: (sworn states)

CHAIRPERSON: Thank you.

EXAMINATION BY MR MOTEPE: As I have already indicated Chair, I have already submitted supplementary affidavits wherein we detail the nature of the offences and the application itself. I don't know at this stage, if there is any point of clarification that is required?

CHAIRPERSON: I think if Mr Nkosi can confirm the correctness of his application, of his statements that have been filed in support of his application, and also the contents of the supplementary affidavit, just so that they then become evidence.

MR MOTEPE: Part of the record? Mr Nkosi, the supplementary affidavit that has been filed of the record here, do you confirm the correctness thereof, what you want to tell this Committee?

MR NKOSI: Yes, I do confirm.

CHAIRPERSON: Mr Motepe, I think we will mark the supplementary affidavit as Exhibit A.

MR MOTEPE: As it pleases the Committee.

CHAIRPERSON: Mr Nkosi, do you recall having filled in an application form when you made your application for amnesty?

MR NKOSI: Very well, yes.

CHAIRPERSON: And you also recall that subsequent to that, you have made certain statements which are contained in the Bundle of papers before us, do you recall having made those?

MR NKOSI: Yes, I do.

CHAIRPERSON: And what do you say about those, that application form and statements, do you confirm their contents here again?

MR NKOSI: Yes, I do concur with every single detail contained in those applications, or in the Bundle.

CHAIRPERSON: Is there anything further Mr Motepe?

MR MOTEPE: There is nothing further that we wish to add at this stage Mr Chairperson.

NO FURTHER QUESTIONS BY MR MOTEPE

CHAIRPERSON: Ms Lockhat, do you have any questions that you would like to put to Mr Nkosi?

CROSS-EXAMINATION BY MS LOCKHAT: Yes, thank you Chairperson. I just want to come to your first robbery, and that is on page 4 of this supplementary, Exhibit A, you said yourself and Piet Ncunu robbed an employee of Rosebank hotel. Did you plan that operation yourself?

MR NKOSI: The planning of the robbery itself, we sat down, myself and Ncunu after I had been shown the place, and I was part of the planning therefore.

MS LOCKHAT: What did you require that money for?

MR NKOSI: The Commission will be aware of the fact that I included or inserted in the affidavit, in my affidavit, the situation under which I was after I had been encountered, or after I had encountered the Security Branch and after they discovered that I am a member of the African National Congress. Now there were weapons and materials of the organisation which were harboured in some veld that I was supposed to go and collect. That is the very reason that I found myself in the robbery.

MS LOCKHAT: So for who would you have collected these weapons, for yourself?

MR NKOSI: My affidavit explains it quite clear, that the task I was given was to plan, arrange the network for the ANC underground in the Natal Machinery. Now, those firearms were not mine or for my use as such, but for the organisation at large.

JUDGE DE JAGER: Who gave you this instruction?

MR NKOSI: Well, as a member underground, I had my direct contact with the command structure of the MK, by the name of Maurice Siabelo and Jabulani Thumani as well.

CHAIRPERSON: What did you need money for to collect arms from caches and arrange for DLB's and that sort of thing?

MR NKOSI: I have explained crystal clear in my affidavit honourable Commissioner, that when I was at Iscor, I went to fetch the firearms and distributed them within, but they had not reached the ultimate place where they were meant to be, or to the end users so to say. Now, there were problems I encountered, namely the Special Branch, they discovered that I am well connected with the underground structure of the ANC, not that I was going to purchase the firearms, but I was removing them to another place where they were supposed, or where they were meant to be ultimately.

CHAIRPERSON: The question was why did you need money to move firearms from one place to the other?

MR NKOSI: When I was with Iscor, I worked for or under the Transport Department, I used the organisation's vehicles, I used the Iscor's vehicle to fetch these weapons or firearms. Now I was removed or moved from the Traffic Department, transferred to the other department, now I had no transport now to bring all my tasks to fruition. I had no contact as well with my Commanders, as a result I had now to make a plan to get or gather those weapons to the right or rightful place.

CHAIRPERSON: So the money was to be used to hire vehicles, and that sort of thing?

MR NKOSI: Certainly.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: Thank you Chairperson. Tell me, and this first robbery at the Rosebank hotel, Peter Ncunu was with you, right?

MR NKOSI: Yes.

MS LOCKHAT: That, did you give him money for this operation as well, did you pay him seeing that he was a common criminal as you have stated?

MR NKOSI: As I joined this whole agenda, Peter Ncunu had his own money because he had to use it for his own intentions.

CHAIRPERSON: Sorry, did you share the money that you got from the robbery, equal?

MR NKOSI: Yes.

JUDGE DE JAGER: You stated that you had to hire a vehicle. Did you hire a vehicle?

MR NKOSI: After I had committed these offences, three of them, I think the money gathered there, the summation will not be more than R10 000. I bought ...

JUDGE DE JAGER: Sorry sir, I only asked you did you hire a vehicle?

MR NKOSI: I bought the money after I had collected and put together other funds as well.

CHAIRPERSON: So you say you bought a vehicle?

MR NKOSI: Yes.

JUDGE DE JAGER: Thank you.

CHAIRPERSON: Sorry Ms Lockhat, just one quick question Mr Nkosi, these three robberies you mentioned, these first three, what was the time period from the first one to the last one?

MR NKOSI: It would have been between two and three months.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: I just want to go on to the Flamingo Dry Cleaners incident, is that okay Chairperson?

CHAIRPERSON: You can go wherever you like, Ms Lockhat.

MS LOCKHAT: It is the second robbery. The second robbery, Peter Ncunu and Dave was involved with you. Was there anybody else involved with you?

MR NKOSI: No.

MS LOCKHAT: And whose operation was this?

MR NKOSI: Ncunu was quite knowledgeable. You recall this one thing, at the time I was stationed in Natal, but Ncunu was quite knowledgeable and had this detailed knowledge in so far as it relates with the area of Johannesburg. So that all the information regarding this whole thing, he furnished to me and thereafter decide.

MS LOCKHAT: Did your Commanders know about this operation, that is the Flamingo Dry Cleaners' operation?

MR NKOSI: I did compile a report that incorporated into it, all other offences.

MS LOCKHAT: Who did you compile the report to?

MR NKOSI: I sent it to Siabelo Maurice, via Dumani.

MS LOCKHAT: Was this after all the incidents took place, this report, when did you compile it?

MR NKOSI: After the offences, after I had already collected the firearms as well and taken them where they were supposed to be and gave details as to where they were.

MS LOCKHAT: So, in the second robbery as well, you collected R6 000-00, right? Did you also share that equally amongst yourselves?

MR NKOSI: Yes.

MS LOCKHAT: Did you know that robbery was not part of the policy of the ANC?

MR NKOSI: Yes, I know that very well, but I would like to allude to this point. The task I had been given, you will also be given some way to sort of initiate and use your own discretion as the situation presents itself. Now you will have to use your own discretion in the furtherance of the task. This is why you will find things like robbery forming part of this whole thing, but the intention basically was to fulfil the objective politically.

MS LOCKHAT: And when you gave this report to your Commander, what did he say to you, did he get back to you? Did he say "carry on with all your robberies, carry on with your work?"

MR NKOSI: I had already explained briefly honourable Commissioner that I compiled the report after I had already bought the car and collected the weapons to a certain place where they were meant to be ultimately. If you take a look at my affidavit, it so explains that my connection with him was no longer as it used to be, because now I found myself in a different situation, but I did discover the fact that they had received my report, the report that I had compiled.

MS LOCKHAT: So your Commander did not get back to you?

MR NKOSI: The next time I was in contact with my Commander, was when I had been arrested after all the three offences that I have explained to you - also writing to them as well.

MS LOCKHAT: Who was your contact person to actually collect the weapons from, when you carried it from one place to another, who was your contact person?

MR NKOSI: Jabu was my immediate contact person in Swaziland.

MS LOCKHAT: What is Jabu's full name?

MR NKOSI: It is Jabulani Ruben Dumani.

ADV SIGODI: Where is he now?

MR NKOSI: A year ago or maybe a little more than a year ago, I did gather that he was killed, he died in fact due to natural causes.

ADV SIGODI: Where did he die?

MR NKOSI: May you please repeat your question?

ADV SIGODI: Where did he die?

ADV SIGODI: Where?

MR NKOSI: Here in the country.

ADV SIGODI: Where?

MR NKOSI: At Boksburg.

MS LOCKHAT: The third robbery, that was at the petrol garage in Daveyton, that was where you got, you got R8 000-00 in that robbery, you stated further that -

&#9;"... I used my share ..."

&#9;That is on page 8 of Exhibit A.

CHAIRPERSON: Paragraph 8?

MS LOCKHAT: Page 8, oh, it is paragraph 8, thank you Chairperson, the last sentence there, the third last sentence -

&#9;"... I used my share to secure the DLB's, commonly known as arm caches, and distribute them to relevant operatives."

&#9;Who are these relative operatives that you distributed these arms caches to?

MR NKOSI: As I have already explained earlier on, my major task was to set the network within the country and recruit as well. Other people I had already recruited, who were operating from within, are the ones I will give tasks to. One of them being Mathe.

MS LOCKHAT: Did you recruit, I see you participated in all these incidents, you didn't recruit any more operatives and got them involved in incidents that you were involved in, why not?

MR NKOSI: The affidavit will clearly show that the part of the situation that got me into trouble, was to recruit, so that I recruited a lot for the organisation, the ANC that is.

JUDGE DE JAGER: During the first robbery, apart from the R8 000-00, you also robbed the Mercedes Benz, the third robbery.

CHAIRPERSON: The third robbery.

MR NKOSI: Well, when we get to the third robbery, we had no transport. We used that car as a way of escaping or as something we could escape with. After we had been away from the area, we deserted the car.

JUDGE DE JAGER: What happened to the car you bought? You bought a car, what happened to that car?

MR NKOSI: I will request the Commissioner to understand this, I am attempting to explain about the offences or the incidents. The three incidents happened under one context, so that I bought the car after the three robberies as I had already said that these happened within two, three months earlier on. I did not rob or commit the first incident and then went to purchase the car and thereafter went on with the second offence. After I had done or committed the three offences, or after the three incidents and had obtained enough or sufficient funds, although it was not quite sufficient, I managed to get a car and was thereafter able to bring all the tasks or the work to fruition as intended.

CHAIRPERSON: Mr Nkosi, if one takes a look, I hear what you say, you embarked on, you together with Ncunu, embarked on three armed robberies?

MR NKOSI: Certainly.

CHAIRPERSON: Your intention, not Ncunu's, but your intention was to accumulate sufficient funds to purchase a motor vehicle so that you could carry out your functions, that was your motivation?

MR NKOSI: Yes.

CHAIRPERSON: Yes, if one just takes a look at the risk control, if you were arrested during the course of one robbery, armed robbery with a gun, you would have to agree that you were facing a serious charge, a very serious charge, that you could be put away for a long time. And if you were arrested in respect of three robberies, also with guns, you are facing a very serious situation, why not just steal a car? And if you are caught then, okay, it is still serious, but not nearly as serious as three armed robberies?

MR NKOSI: Yes, that is a fact. It could have been another option, but the risk involved in this thing, in the car theft, go get the first load of firearms, take them where they were supposed to be, keep the stolen car, again went back to the veld, gather the second load of weapons or firearms, all that following this procedure, keeping in my possession the stolen car, I thought that was now a greater risk than the one I settled for.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: I want to move on to your offences after your arrest, that was your escapes from prison. You attempted to escape in 1979, 1980 and 1991 you finally escaped. What was your political objective, what were you trying to achieve when you were attempting to escape from prison?

MR NKOSI: For you to understand me, I will approach it this way - after the Special Branch was after me and realising that contacting my Commander, explaining to him that the situation has changed, things are bad, now my works are being brought to the surface, what should I do, must I escape or what and he said to me, I am talking about the time when I was still outside, then he said to me because the weapons are still there and intact, try to collect them first and afterwards we will talk about your escape. In other words, first things first. Unfortunately now I am arrested. Because I was there in prison and never was taken to the island, Robben Island, now it remained as an option for me to escape and go to exile. This is how it fits or my escape, this is how it fits in the whole picture.

MS LOCKHAT: But after your escape in 1991, you didn't go into exile, you stayed in Soweto and then you moved to Natal?

MR NKOSI: I escaped on the 12th of August, it was on a Wednesday. On Thursday, the 13th of August, the heroes of the MK went to hid the Voortrekkerhoogte in Pretoria. Now the situation got volatile, we had to hide, go in hiding because there were roadblocks mounted left, right and centre. Now we could not escape or go to exile immediately.

MS LOCKHAT: You were eventually caught in Natal while George Mntambo was trying to conduct another robbery, isn't that so?

MR NKOSI: Yes.

MS LOCKHAT: Did you also participate in that robbery?

MR NKOSI: You will notice honourable Commissioner, that in the affidavit I forwarded to you, I did not hesitate to tell the Commission the one part I participated in the robbery, in relation to the politics. The Standerton one, I did not participate in that robbery. But then again as George Mntambo being a person who got recruited by myself and set him free from prison, I got him out of prison, I therefore will take the responsibility in full.

CHAIRPERSON: Sorry, just to go back a little bit, Mr Nkosi. You said that you escaped on the 12th of August 1991 and then on the 13th of August, Voortrekkerhoogte was attacked?

MR NKOSI: Yes.

CHAIRPERSON: That attack on Voortrekkerhoogte took place in the mid or early 1980's, it was not in 1991, because the armed struggle had already come to an end by August 1991?

MR NKOSI: No, I think the year is wrong, right there. On the 13th of August ...

CHAIRPERSON: If you look at paragraph 11 of your supplementary statement, there it says -

&#9;"On the 12th of August we finally succeeded to escape, we went to Soweto, we were to leave the country. Incidentally MK attacked Voortrekker base in Pretoria ..."

&#9;etc, that attack on the Voortrekkerhoogte, I know, did not take place in 1991, because I personally sat in the amnesty application relating to that attack.

MR NKOSI: Yes, that is so. That is correct what you have said. What I think, it is a printing error here, on the 1991.

CHAIRPERSON: So when did you escape then?

MR NKOSI: 1981.

CHAIRPERSON: 1981?

MR NKOSI: Sure. Just one minute.

CHAIRPERSON: Do you want us to amend this?

MR NKOSI: On the 12th of August 1980 ...

CHAIRPERSON: So you want us to amend the 1991, to read 1981? Do you want us to amend 1991 to read 1981?

MR NKOSI: 1980, August 12.

CHAIRPERSON: 1980?

MR NKOSI: Sure.

MR MOTEPE: Chairperson, may I quickly clarify this point with my applicant? It has to be 12 August 1991, the reason being in paragraph 10, 1981 yes. As the Chairperson will note on paragraph 10, there was an attempted escape in 1980.

CHAIRPERSON: Yes, and then this one didn't take ten years later, it just took a few months later?

MR MOTEPE: No, immediately thereafter.

CHAIRPERSON: Yes, I accept that Mr Motepe, yes.

MS LOCKHAT: Just the last two aspects I want to deal with. It is just the attempted murder, that is at paragraph 10 of the policeman and you were never charged with that. Was that purely just for escape purposes, what was your political objective in relation to that?

MR NKOSI: It was to escape.

MS LOCKHAT: And then just the last one which you also apply for amnesty for, is at paragraph 3, it was June 1976, there was a boycott and I want to know what are you applying for amnesty here for, exactly, for burning of the buses or what? I am not too clear on that, can you just explain that to me?

MR NKOSI: Well, according to the boycott, a depot was set alight or was burnt including the buses at night. Now, that is the reason why I am seeking amnesty.

CHAIRPERSON: Did you play any role in that, in the arson?

MR NKOSI: Yes, I did play a role.

CHAIRPERSON: What role did you play?

MR NKOSI: This depot is not too far away where I was residing. It is myself who furnished the information of the situation regarding the security and it is myself as well, who gave the information about the petrol pump, that we took and used, got it from inside and set the whole, entire place, alight. That was the key role I played.

MS LOCKHAT: I have no further questions in relation to this.

NO FURTHER QUESTIONS BY MS LOCKHAT

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

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

NO RE-EXAMINATION BY MR MOTEPE

CHAIRPERSON: Judge de Jager, do you have any questions that you would like to put?

JUDGE DE JAGER: I see you have six previous convictions, is that correct?

MR NKOSI: Please repeat, because the first part of your question, I did not get.

JUDGE DE JAGER: Is it correct that you have six previous convictions?

MR NKOSI: Not the previous, but the very cases that I am arrested for, that I am serving a sentence for, now currently, in prison.

JUDGE DE JAGER: The first one, you hit a 60 year old black man with an iron on the head and robbed R10 000-00?

MR NKOSI: I think you are mistaken honourable Chair, except if you are referring to the situation or to the incident of Standerton which is the very case I have been sentenced for. I have received a life sentence for it.

CHAIRPERSON: Mr Nkosi, where Judge de Jager is getting this information from, is from page 93 of the Bundle, it is a prison, the computer print-out relating to yourself and at the bottom it says that the police station was Parkview, Southern Transvaal, description of crime, robbery black man, 60 year old, hit with an iron on the head, cash R10 000, you see, that is where that comes from. What do you say to that ... (transcriber's own interpretation)

MR NKOSI: I will request the Commissioner to be quite aware of the fact that there are so many things that were false, that went on and were not necessarily the truth or the position as I sit here, to an extent that the Investigator of the Commission, of the TRC, did discover that the information that was put into my file in the computer in prison, does not coincide or does not correspond with the things that I have been charged for and convicted for in prison.

CHAIRPERSON: So you deny this, you dispute this?

MR NKOSI: Completely yes.

CHAIRPERSON: Because there is also other matters here, one is - I can recall seeing it was robbing a fellow while under the influence of alcohol for R140-00, you hit somebody with your fist while drunk?

MR NKOSI: That is not true, it has nothing to do with me. I would also like to explain one more thing here ...

MR MOTEPE: Chairperson, can I just come in and just make sure, aren't you referring to George Mntambo?

CHAIRPERSON: You see if you take a look at the very last page, page 94.

MR MOTEPE: Page 93?

CHAIRPERSON: 94.

MR MOTEPE: 94?

CHAIRPERSON: Then you will see at the top right hand corner, it says "page 1", do you see, right under 94, page 1?

MR MOTEPE: Yes.

CHAIRPERSON: And then it has got family name, Nkosi. First names Ephraim, Methodist Church, all that sort of stuff, you see, and then you go backwards, page 2 is 93. Page 92 is page 3 of that document, because I did think that that might be so, but it seems like it refers to Mr Nkosi?

MS LOCKHAT: Yes, and it refers to the accomplices, that is Mr Mntambo?

CHAIRPERSON: Yes, you see. They've just got it back to front here, page 90 should be page 94 and it should go the other way, but it is going backwards if you take a look at the page numbers. Adv Sigodi, do you have any questions?

ADV SIGODI: You mentioned in your affidavit that you were trained in Luanda in 1976, who trained you in Luanda?

MR NKOSI: My instructor in Luanda was Shekesheke and I received a crash course.

ADV SIGODI: Can you just spell that for me?

MR NKOSI: Shekesheke.

ADV SIGODI: Was that his code name or was that his real name?

MR NKOSI: Yes, it was the code name according to my knowledge.

ADV SIGODI: And what was the real name?

MR NKOSI: When I got into the crash course and I finished the course, I did not seem to get his real name.

ADV SIGODI: Did you also have a code name?

MR NKOSI: Yes.

ADV SIGODI: What was your code name?

MR NKOSI: Themba Dlamini was mine.

ADV SIGODI: How long were you in Luanda?

MR NKOSI: I was there for three weeks because I was on leave from Iscor where I was employed, the fourth week I left.

ADV SIGODI: You mentioned in your - what was the name of the unit where you were in Luanda, where you got your training?

MR NKOSI: Maybe I should explain briefly again. My position was different because I had to go there to receive a special training and subsequently come back on a special mission. Now, my position was quite different from the other normal ones who went through the transit camps and as the usual procedure went ... (tape ends) ... came back immediately. As it will be the case within the country, receive a crash course without joining any particular unit, that is how it is.

ADV SIGODI: And who recruited you to Luanda?

MR NKOSI: I joined the ANC in 1973 myself, so that when I went to Luanda, it had been quite some time I had had established contact with the ANC.

ADV SIGODI: Yes, but who recruited you, who told you to go to Luanda and told you what to do when you got there?

MR NKOSI: I had a contact person who was my Commander, the one I went on with, and communicated with about the situation prevailed within the country at the time. Siabelo Maurice was the person, my Commander that is, who also gave me the instructions.

ADV SIGODI: In respect of the three robberies, how were the targets identified, what criteria did you use to identify the targets?

MR NKOSI: The first time when Ncunu gave me information, and illustrated the whole thing or the whole process as how things were going on, the first criteria was the fact that we should ensure that no blood is shed.

ADV SIGODI: In other words, you got the information from Ncunu?

MR NKOSI: Ncunu, as I said earlier on, that he knew and had so much information regarding various robberies, but because I had this particular intention myself, I chose or settled for the ones I had identified, because to me they seemed quite easier.

CHAIRPERSON: I think what Adv Sigodi is just trying to find out, is what happened. We know that a robbery was held at the Rosebank hotel, we know that a man and a woman were robbed outside their premises of the vehicle, and we also know about the Standerton matter, which was a bit different from the other two. Was it Peter Ncunu who came and said "look, Rosebank hotel is a place to rob" or was it you who went and said, identified the target and went to Piet Ncunu and said "let's rob the Rosebank", this is what she is trying to establish.

MR NKOSI: Thank you. Maybe I shall first explain briefly that after it was clear that I am supposed to take a few, or have some initiative about the weapons that were kept there, my communication with Ncunu was one other way that I was going to put him to use myself, to be able to bring all my objectives, political, into fruition so that when he will identify places, that are supposed to be robbed, I pretty much agreed with him to follow all the criteria that was supposed to. In other words, I am trying to explain that Ncunu was one close person, I worked with him and I used him as well to implement all these plans I had, until such time that I got arrested.

ADV SIGODI: What concerns me is that if you look at the targets, or the people who were robbed, they would be according to ANC, what would be termed "soft targets", and at that time it wasn't ANC policy to attack soft targets?

MR NKOSI: Well, the situation we are in now, the applications I have made myself, I did not request amnesty for killing a person who is a target. I am here requesting amnesty because I have committed an act that had an intention, political, or had a political intention. By so saying, I am trying to say or explain that all the people who are implicated here, were not directly identified or pointed, that they were the ones ideally who were supposed to carry this, so that the question of whether they were being soft targets or hard targets, I would like to reiterate and emphasise the fact that I had no target and evidently no one died.

ADV SIGODI: I will leave it at that. Where is Peter Ncunu now?

MR NKOSI: Peter Ncunu has since died. I think after 12 years he was in prison. In prison he was discovered that he took some poison and thereafter died resultantly.

CHAIRPERSON: Just one point, Mr Nkosi, this cache of arms you talk about, you said that you had to move it from one place to another place. Where was this cache of arms that you had to move?

MR NKOSI: As I had already explained, honourable Commissioner, we wanted to strengthen the Natal, so that in places like Piet Retief, Wakkerstroom, Oshoek, it was the border, that is where these weapons were harboured, and they were intended to be taken to Natal.

CHAIRPERSON: So they were in various places?

MR NKOSI: They were in various places, that is correct.

CHAIRPERSON: And you were intending to move them to where, Newcastle?

MR NKOSI: To Natal, Pietermaritzburg, Midlands, in Natal.

JUDGE DE JAGER: Did you in fact succeed in moving some of them?

MR NKOSI: Partly because of, a partial amount of that money bought the car, deposited the car as it was my car, I was able now to fetch and distribute the different ...

JUDGE DE JAGER: Okay, where exactly did you fetch it, on which farm, the name of the farm, was it at Piet Retief and where did you take it and where did you dump it again?

MR NKOSI: The nature of my training and the way I was trained to sketch the maps, I was not necessarily trained or educated that I was supposed to learn first the owner of the farm, but what I would know is the fact that if I now want them, how would I get them. I managed to get them and forwarded them to Natal. After the whole thing was banned, the armed struggle, all those weapons were taken back to the ANC as per agreement of the Groote Schuur and Magnus Malan.

CHAIRPERSON: Thank you. Mr Motepe, do you have any questions arising out of questions that have been put by members of the panel?

MR MOTEPE: Chairperson, I believe everything has been clarified.

NO FURTHER QUESTIONS BY MR MOTEPE

CHAIRPERSON: Do you have any questions arising, Ms Lockhat?

MS LOCKHAT: No, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you Mr Nkosi. That then concludes your testimony.

MR NKOSI: I would also like to thank you. The one thing I would like to state to you, amongst other summons or papers I got or documents I got to request me, that brings me here, it appears as though I committed a murder or some person there was killed somehow. I would like to explain that that also is not true. The last thing is I would like to explain or say to all the people who are implicated or who were victimised by my acts, I would like to ask for forgiveness. Thank you.

CHAIRPERSON: Thank you Mr Nkosi.

WITNESS EXCUSED

CHAIRPERSON: Mr Motepe?

MR MOTEPE: Chairperson, perhaps one should start with ...

CHAIRPERSON: You are not leading any further evidence?

MR MOTEPE: No, not at all.

CHAIRPERSON: No evidence Ms Lockhat?

MS LOCKHAT: No, thank you.

CHAIRPERSON: Yes, Mr Motepe?

MR MOTEPE IN ARGUMENT: Perhaps one can start with the convictions that are apparently linked with the applicant here. The applicant has already explained that even the Investigating Officer of the TRC did discover that there were some information that were not correlating with his file. At the moment we don't have the record of the proceedings of these particular convictions. My information is that they have all been destroyed.

CHAIRPERSON: I think that is apparent from the Bundle, various attempts have been made and there are various letters there, saying that they are not available, they have been destroyed in the normal procedure. You know they keep them for a certain amount of years, and then destroy them.

MR MOTEPE: That is correct. In the circumstances then, these matters really as there have not been so verified and the only evidence we've got is that of the applicant, my submission is that they should not prejudice the applicant in this application for amnesty. They should not even fall into the picture. Then when it comes to the offences that the applicant is applying for, firstly starting with the robberies, it is my submission that the motive was very clear, the arms were there. As in any war situation, arms have to be moved around for specific purposes. It is for that reason that the applicant sought to acquire finances in order to move these weapons around for the intended purposes. In my submission, he has given a full disclosure on those robberies. The nature of the acts themselves, are very clear, that they were politically motivated, there was no personal gain. Specifically that he was a member of MK, member of a well known liberation movement, and he carried his tasks as ordered and at times at his own initiative, but within the political objective. When it comes to the escapes, once more one will know that in a war situation, people are arrested and they attempt to escape, to further their war objective. Those are acts of war, and there was nothing sinister in the applicant trying to escape in all his attempts. It is in that vein that I submit that the applicant has satisfied all the requirements of the Act. His actions were clearly, clearly political. There was no personal gain, no personal malice of any sort. It is my submission that the applicant is entitled to amnesty, on all the offences that he has asked amnesty for. Thank you Chairperson.

CHAIRPERSON: Thank you. Ms Lockhat?

MS LOCKHAT IN ARGUMENT: Thank you Chairperson. Mr Nkosi's evidence, just generally, he was a very evasive witness in a sense, he could never give us any specifics. We would ask him for example where exactly was he supposed to pick up these weapons and he could never really give us conclusive answers. In relation to the armed robbery incidents, it seems that Mr Nkosi associated himself with criminal elements like Peter Ncunu for instance and they embarked on all these armed robberies and the money was shared between all of them, but in his instance, he is telling us that his intentions were different to all, to the other

persons involved in the robberies and that his sole intention was just to move arms. It seems the only way he did fulfil one of his intentions was in buying his own car eventually, and it doesn't sound as if he did get to move any of the arms. He also mentions about him trying to recruit persons, but he cannot also tell us exactly tell us the persons that he was able to recruit as MK's, and even in his operations that he undertook, he still associated himself with the criminals, and there were no other operatives involved in any of the other operations. The escapes from prison, it just seems another attempt for him just to obviously be out of prison and there was no real political objectives in those instances. The fact that he does eventually escape, he still associates himself with George Mntambo and three other persons as well, who he also calls criminals, and he associates himself with that as well. And then unfortunately he is involved in another incident, another armed robbery with George Mntambo, and his reasons for - he said one of the reasons for him to leave the country, was to leave the country or to go into exile, but it didn't seem as if many attempts were also conducted in order for him to actually get out there. It is my submission that these armed robberies were done for personal gain, and that there was no political motivation or objectives obtained by them. There is one submission I would like to make in favour if Mr Nkosi, on a more personal level, that I was absolutely impressed by reading the documentation relating to Mr Nkosi, that he is such a star prisoner, and that he has embarked on higher education and he is also the Chairperson of education at the prisons and that for me, was really uplifting, when I read his application. Thank you Chairperson.

CHAIRPERSON: Thank you Ms Lockhat. Do you have any response or reply Mr Motepe?

MR MOTEPE IN REPLY: I do have. Chairperson, my learned colleague has accused the applicant of being evasive in his answers, but if one looks at the totality of his answers, one will know that he attempted, and actually succeeded in most cases, to even give us the names, notwithstanding the fact that this incidents happened in the 1980's. To be honest and with respect to my learned colleague, I cannot remember any specific instance where Mr Nkosi did not, could not answer satisfactorily. I beg to differ with my learned colleague's observations in that regard. As far as association with criminal elements is concerned, it is very easy at the moment, while we are sitting with the benefit of airconditioners and all that, to say that one shouldn't associate ...

JUDGE DE JAGER: It is not working in this building.

CHAIRPERSON: The benefit of fans.

MR MOTEPE: At least the fan. We cannot then say that at the moment, when he had to commit these things, let us remember that he was in Johannesburg, he was not sure, he was not particularly aware of the surrounding areas, the person who had knowledge of the targets they could hit and the geographical areas, was this Ncunu. This was the perfect tool for him to use at the particular time and it is true, he was a criminal and the applicant has also disclosed that fact, that Mr Ncunu was actually a well known criminal, but he used him for political objectives and in my submission, there is nothing sinister, especially looking at the context in which it happened. About the names of the recruits that he couldn't remember, the people he recruited, once more the applicant has tried as far as he could, to give us all the necessary names, even his handlers. He cannot be expected to remember each and every single recruit that he ever controlled. Surely he cannot be expected to do that, but in the evidence that he gave, he gave sufficient information on which this Committee can make a favourable decision. As to the question of escape, that he in escaping he was in the company of criminals, it is only logical that while in prison, he especially in the common law prisons, not Robben Island as he explained, he will be in contact with criminals there. Some of whom will seek to turn away from their previous deeds and look at the political struggle. In his escape, he couldn't carry it alone, surely he needed help, and in his judgement at the particular time, he used his fellow inmates who were incidentally criminals, but it did set him free at the end, although momentarily, but he did manage to escape. The main thing is that all these escapes were an act of war, if one could say so. He wanted to escape in order to skip the country and in my submission, there is not even evidence on the side of the, of my learned colleague, to suggest that the applicant at least is wrong in his evidence, and in my submission, his evidence, it stands undisputed and he should succeed in his application, thank you Chairperson.

CHAIRPERSON: Thank you very much, Mr Motepe. We will reserve our decision in this matter, and that brings this particular hearing to an end. Would this be a convenient time to take the lunch adjournment and then after lunch, we will commence with another matter? After lunch we will proceed with the next matter, I am not quite sure which one it will be, but it will be either the application of Mr Madonsela or that of Mr Sithole, one of the two.

MR MOTEPE: The one of Mr Madonsela.

CHAIRPERSON: Is that the one, Mr Madonsela's application, thank you. We will take the lunch adjournment now.

COMMITTEE ADJOURNS

 

 

NAME:&#9;ABSOLOM MADONSELA

APPLICATION NO:&#9;AM3131/96

--------------------------------------------------------------------------

ON RESUMPTION:

CHAIRPERSON: Yes, thank you. As mentioned just prior to the lunch adjournment, we will be commencing with the hearing of another application now, Mr Motepe indicated that that will be the application of Mr Madonsela. Mr Motepe?

MR MOTEPE: Chairperson and members of the Committee, as with the similar application, there is a supplementary affidavit. Should I continue confirming it with the applicant?

CHAIRPERSON: Yes, I think the applicant should be sworn in or make an affirmation to tell the truth. 

MR MADONSELA: I am sorry, I've got a hearing problem. The volume is too low.

CHAIRPERSON: Perhaps if you can just wait for the Sound Technician. Can you hear now, is that better?

MR MADONSELA: Yes.

ABSOLOM MADONSELA: (sworn states)

CHAIRPERSON: Thank you. Mr Motepe?

EXAMINATION BY MR MOTEPE: Mr Madonsela, you have instructed me to file an affidavit that was prepared by your full understanding, is that correct?

MR MADONSELA: Yes, that is correct.

MR MOTEPE: The contents contained in the affidavit, do you confirm the truthfulness and the correctness thereof?

MR MADONSELA: That is correct.

MR MOTEPE: I don't know if I should take it any further than that, Chairperson.

CHAIRPERSON: Are there victims present there?

MS LOCKHAT: Chairperson, the victims have been informed, but no one, none of the victims are present. One of the victims has also made a statement that is included in the Bundle, Chairperson.

CHAIRPERSON: Yes. Mr Motepe, this supplementary affidavit will be received as Exhibit A.

MR MOTEPE: Thank you Chairperson.

CHAIRPERSON: Mr Madonsela, you have also completed an application form for your amnesty, is that correct?

MR MADONSELA: That is correct.

CHAIRPERSON: And you have also subsequent to filling in the form, made certain statements relating to your application, is that correct?

MR MADONSELA: Yes, that is correct.

CHAIRPERSON: Do you confirm the contents of your application and your subsequent statements, which are contained in the Bundle before us, as being correct and what you have completed and submitted?

MR MADONSELA: Yes I do.

CHAIRPERSON: Mr Motepe, is there anything further?

MR MOTEPE: There is nothing to add further at this stage. The applicant is ready for questioning.

NO FURTHER QUESTIONS BY MR MOTEPE

CHAIRPERSON: Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Thank you Chairperson. I want to start with the first incident, that is on the 30th of May 1987, where the two Municipal police officers were assaulted. Can you just tell us, you said that Dingaan gave the orders. Did he just give you the order, or was it for Finnias and your brother as well?

MR MADONSELA: He issued the instruction out to us as the unit.

MS LOCKHAT: And, so you were all in the same unit and how many of you comprised of that unit basically?

MR MADONSELA: There were more than three people in that unit, but on that particular day when we went to carry out the act, there were only three of us.

CHAIRPERSON: Sorry, before you proceed, Ms Lockhat, Mr Madonsela, did you receive training, military training?

MR MADONSELA: Yes.

CHAIRPERSON: Whereabout?

MR MADONSELA: Inside the country.

CHAIRPERSON: From whom?

MR MADONSELA: Dingaan Sibusiso Mdlalosi and the late comrade Vusile Tshabalala.

CHAIRPERSON: And when did you join the ANC?

MR MADONSELA: I joined in 1984 or 1986, I am not sure exactly.

CHAIRPERSON: And when did you receive your military training?

MR MADONSELA: In 1986.

CHAIRPERSON: And in what did you receive training? What sort of training did you get?

MR MADONSELA: I was trained in the use of firearms, explosives, tactics, typography, military and combat work.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: Tell me, for this incident at the sub-station, where did you get your ammunition from, your arms and ammunition, who gave it to you?

MR MADONSELA: We had weapons in our possession.

CHAIRPERSON: I think the question was where did you get your weapons from?

MR MADONSELA: From the Commander.

CHAIRPERSON: Is that Dingaan?

MR MADONSELA: Dingaan and Veyi. I would just like to explain about Dingaan and Veyi. Dingaan was the senior Commander and Veyi was second in command. On the day of the operation, Dingaan is not the person who issued the order, but it was Veyi. In my application I said it was Dingaan for the reason that Veyi is now late. He passed away in 1988. When I followed the TRC hearings, I heard that many comrades implicated Chris Hani as the person who issued orders. I thought it would be wise for me to name someone who is still alive, who can confirm about the operation because at that time, Dingaan was outside the country, but when he returned, Veyi did report to him about the operation, that he had issued such and such an order and it had been fulfilled. He also showed him the firearms that were obtained from that operation.

CHAIRPERSON: Sorry Veyi, is that Tshabalala?

MR MADONSELA: That is correct.

CHAIRPERSON: So when you say in paragraph 3 of your statement that an order was issued by Mr Dingaan Mdlalosi to disarm the guards and drive you, you are basically saying that he only ratified the operation after it had been finished, but Veyi Tshabalala in fact gave the order prior to the operation?

MR MADONSELA: That is correct.

MS LOCKHAT: And was Vincent Tshabalala as your Commander, was he happy with that incident, was he - did he authorise the shooting of the policemen and so forth? Did you inform him that you did in fact shoot the policemen?

MR MADONSELA: The order as such did not specifically mention that we must shoot at them, but that we should disarm them and then drive them out of that area, after which we would turn on the lights, that they switched off.

MS LOCKHAT: And when you informed Tshabalala that you did in fact shoot these policemen, what was his opinion on it? What did he inform you?

MR MADONSELA: When we explained how the operation went, he questioned as to why we had to shoot and I responded that as a trained person, if I point my firearm at somebody who is also trained, and someone who is also armed, you should try and act before that person does. When we approached them and pointed our firearm at them, one of them went for his firearm and that is how it came about that I also fired a shot at him. Thereafter that explanation, he was satisfied.

MS LOCKHAT: So tell me, and then was your mission accomplished, did you quickly switch on the electricity again, was it normalised after that? Did you have any problems in relation to the switching off of the electricity again?

MR MADONSELA: After we attacked them, we had to flee, because the area was busy. But after they had left, we returned and we switched on the lights and left again.

MS LOCKHAT: I want to come to the incident at paragraph 4, where you were found in possession, where you were carting the guerrillas around and you were found in possession of a stolen vehicle. Can you tell us whose vehicle that was, where did you obtain that vehicle from?

MR MADONSELA: My elder brother was involved in stolen vehicles. When I got involved with MK, I realised that the comrades required transport to move around the country. Most of them were from the 76 detachment. My brother who used to be involved in stealing cars, was informed by me of the operations and eventually he also got involved in the ferrying of comrades from areas like Rustenburg in the North West Area. I would pick them up from there and transport them to Soweto. Those were the cars I used and they were stolen by my brother. I used them for security reasons.

CHAIRPERSON: Mr Madonsela, why didn't you mention this car - being in possession of stolen cars? I see in your affidavit you apply for your arrest and conviction in respect of being in possession of a stolen car, after your arrest in 1987 and then again during 1993, you were again found in possession of a stolen car. Why didn't you mention any of that in your application form?

MR MADONSELA: The 1986 incident, I regarded it as a past incident and I was convicted for it.

CHAIRPERSON: It is a passed incident? So is the shooting of the two policemen at the sub-station a passed incident? But you included that in it?

MR MADONSELA: The shooting of the policemen resulted from an order that was issued by the Commander. The stealing of a vehicle, was not from an order issued by a Commander, but it was stolen by my brother.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: So you did not participate in the stealing of the car, is that correct?

MR MADONSELA: That is correct. The Commanders insisted that I remain with them, so that my whereabouts would be always known.

JUDGE DE JAGER: Do I understand you correctly that you were never ordered to steal anything by your Commander? He did not order you to steal a car or money or anything, except the guns?

MR MADONSELA: That is correct.

MS LOCKHAT: Did your Commanders know that you were transporting your comrades in stolen vehicles?

MR MADONSELA: As I mentioned before, I already explained why we used stolen vehicles. For instance, if we were involved in a chase, we should be able to leave and desert the vehicle to flee.

CHAIRPERSON: Mr Madonsela, did your Commanders know that you transported comrades in stolen vehicles, that was the question? Did your Commanders know that you used stolen vehicles?

MR MADONSELA: Yes.

MS LOCKHAT: Did you inform them of this, did you actually tell them "look, we are transporting these comrades in these illegal, stolen vehicles", how did they come to know about it?

MR MADONSELA: As mentioned earlier, there was a need for transport that would ferry them and we decided upon using stolen vehicles and I would inform them as to where the vehicles came from, because they also enquired as to whose vehicles those were.

MS LOCKHAT: And let me just clarify, and what were you charged and sentenced for in this specific instance? Were you charged for ...

CHAIRPERSON: That is the one mentioned in paragraph 4 of your statement, the one in 1986, for which he skipped bail. What was the charge against you?

MS LOCKHAT: Thank you Chairperson.

MR MADONSELA: I was arrested in connection with a stolen vehicle.

CHAIRPERSON: What was the charge, can you remember? If you cannot remember, tell us? Was the charge theft of a vehicle, or was the charge using a vehicle without the owner's consent or do you know what the actual charge was? Was it theft?

MR MADONSELA: It was car theft.

JUDGE DE JAGER: And the sentence?

MR MADONSELA: I was under age, so I received corporal punishment.

MS LOCKHAT: When did you escape from Leeukop Medium A prison, which year was that?

MR MADONSELA: September 1991.

MS LOCKHAT: And then you were also found and charged again with the possession of a stolen vehicle or theft of a vehicle, that was in 1993? Is that correct?

MR MADONSELA: That is correct.

MS LOCKHAT: So for those three years, where were you situated? Where were you living?

MR MADONSELA: At home.

CHAIRPERSON: Where were you going to go to in Zambia?

MR MADONSELA: To Ndola which was one of the ANC camps.

MS LOCKHAT: So when did you decide to skip the country, when did you decide to go into exile?

MR MADONSELA: After I had applied for indemnity, after a long while, I decided that it will be better to skip the country for Zambia, whereupon I would then make another application for indemnity.

MS LOCKHAT: So basically you received no response from the people whom you applied for indemnity for, is that right or were you refused indemnity?

MR MADONSELA: I wrote and made many applications whilst I was in prison, for which I got no response, and even after I had escaped from prison, I had still not received any response.

MS LOCKHAT: And Finnias, when did he receive his response that he actually got indemnity, were you still in prison at that time, with him?

MR MADONSELA: Are you referring to my brother, my brother is late.

MS LOCKHAT: Sorry, Finnias, he visited, he was not in prison with you, sorry, my apology. But he informed you that he got indemnity? Was that whilst you were in prison?

MR MADONSELA: He returned from Angola in 1991 and he visited me in prison to inform me that he had received indemnity and he was also surprised as to why I had not received the same, that is also the reason why I decided to escape from prison, and apply for indemnity when I am already outside the country. I did not receive any response as to whether my application had been turned down or what.

MS LOCKHAT: And then you said that a friend of your brother's, gave you this Nissan bakkie and you were going to use this bakkie to go to Zambia and to leave the country. Did you know it was a stolen vehicle?

MR MADONSELA: That is correct.

JUDGE DE JAGER: Must we entertain that application at all, was it timeously made, was it connected as a - can you apply for amnesty after the cut-off date? There was no indication of this offence before?

MS LOCKHAT: The applicant was very vague in his application, he just said robbery and then he mentioned the attempted murders.

CHAIRPERSON: My reading of it and I have just read it again now, is that the application is really just about the electrical sub-station, switching the lights on, shooting the two policemen, taking the guns. There is no hint of anything else.

JUDGE DE JAGER: Of stolen cars, at least.

MS LOCKHAT: The point is taken, thank you Chairperson. 

CHAIRPERSON: Sorry, there is just one thing I cannot understand, I think this must be a typing mistake, because you say Vusi stole a motor car and he then gave it to you to use to get out of the country, and then you say -

&#9;"... I told the truth to the police. I informed them that Vusi knew nothing about the stolen car."

&#9;I mean that is a contradiction, first of all you say Vusi stole the car, then you say you told the truth to the police and informed them that Vusi knew nothing about the car, what is the situation? Do you see that Mr Motepe, it is paragraph 5, just above conclusion? 

&#9;"I then approached a friend of my brother for assistance in terms of transport. He gave me a Nissan bakkie and informed me that it had been stolen two weeks before."

&#9;So it wasn't Vusi, you didn't get the car from Vusi?

MR MADONSELA: No, it is not Vusi Chairperson, Vusi and the friend of my brother is not the same person.

CHAIRPERSON: Okay, no that is fine, that explains it. Thank you. Ms Lockhat?

MS LOCKHAT: No further questions to the applicant, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

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

RE-EXAMINATION BY MR MOTEPE: I do have one, Chairperson. Mr Madonsela, you testified that you - perhaps before I should continue on this, what is the status on this applications?

CHAIRPERSON: We will have to hear you in argument on that one, I think Mr Motepe.

MR MOTEPE: All right. Mr Madonsela, you testified that at some stage, some stages, you used stolen vehicles. Can you explain to us what the motivation was of using stolen vehicles as opposed to borrowing a car that was being owned by someone legitimately, so that you can go and carry your mission, why did you opt for these stolen cars?

MR MADONSELA: We used stolen vehicles, so that they could not trace us after for instance carrying out an attack. For example if they could identify or if somebody identified the registration number at the scene of the incident, then they would not be in a position to trace it back to us.

JUDGE DE JAGER: Sorry, you are saying so that they could not identify you when you were carrying out an attack, but you only carried out one attack and that was on the electrical sub-station and you went there by foot?

MR MOTEPE: Perhaps if I can assist, my understanding was that he was saying that was the motivation behind using stolen vehicles, not that at the particular stage they were arrested using them. It is true that they went on foot to the sub-station, but the motivation behind using the vehicles, was for an eventuality that they were arrested or something of that sort, so that there won't be trace of the owner of the vehicle. Mr Madonsela, but after using these cars, what happened to them? What happened to the stolen cars?

MR MADONSELA: After an operation, we would normally dump them at freeways because if you carry out an operation and you are found in possession of a stolen vehicle, that will link you to that operation. So we will take those vehicles and leave them in a busy road, say a freeway so that they be found.

MR MOTEPE: I've got no further questions.

NO FURTHER QUESTIONS BY MR MOTEPE 

CHAIRPERSON: Thank you. Judge de Jager, do you have any further questions you would like to ask?

JUDGE DE JAGER: I still don't understand this last answer of yours, because if you didn't take part in any operation, then there was no need to leave the car on the freeway. Now you used a few cars, were there then in fact other operations you took part in, and you left the cars after the operations, or what is the position?

MR MADONSELA: By this word operation, I am also referring to the collection of cadres from Rustenburg to Soweto. Those are the sort of operations I was mainly involved in because I was in the Transport Department. Therefore after collecting those comrades, I would leave the vehicles on the freeway.

JUDGE DE JAGER: How many vehicles did you use, one or two or twenty or thirty?

MR MADONSELA: I may have infiltrated three units into the country, so it is possible that it was three cars that I used.

CHAIRPERSON: Adv Sigodi, would you like to ask any questions?

ADV SIGODI: Just on the incident at the, to the two people who were shot. There is a statement here by Mr Skweni on page 15 of the Bundle, paragraph 2, he says that, I think this is the statement that he made to the police for the trial -

&#9;"I just heard the voice "staan vas" and the person shoot at me. I fell down and when I woke up, I found that my firearm was taken away. I managed to run until I fell down again, the person shot me at the stomach."

&#9;How many times was this person shot?

MR MADONSELA: I recall firing one shot.

ADV SIGODI: Where did you shoot this person?

MR MADONSELA: It was somewhere on his body as the applicant is indicating, because when I told him to stand still, and he tried to reach for his firearm, I shot immediately. So I am not sure just exactly where I hit him.

CHAIRPERSON: What sort of firearm did you have?

MR MADONSELA: A 45 pistol.

ADV SIGODI: The second person who was being shot at, the intention was to kill this person, is that correct?

MR MADONSELA: The second person lay flat on the ground and after Finnias had removed the weapons, he said "you did not shoot this person", and I told him that we must leave and on saying this, he shot at this person with the same firearm that he had removed from them. I learnt in court that that person was shot on the thigh.

ADV SIGODI: In other words did you associate yourself with what Finnias did to the other guard or did you not associate yourself?

MR MADONSELA: As I mentioned before, the order was not that we should shoot, but - because Finnias had already carried out the act, there was nothing I could do. I could not dissociate myself from the act.

ADV SIGODI: Yes, but I just want to get clarity on this point, because you are also applying for amnesty in respect of both guards, is that correct?

MR MADONSELA: That is correct.

ADV SIGODI: I just want to clarify this aspect with you, you say that you shot the first guard and you accept full responsibility for that, is that correct?

MR MADONSELA: That is correct.

ADV SIGODI: Right, and then the second guard lay on the ground and then you took his gun, he was of no danger to you at that time, is that correct?

MR MADONSELA: I would not say so. He could not shoot at us, but we were on a busy road, so he could have received assistance even before we turned the corner.

ADV SIGODI: Yes, but then you said that if I heard you correctly just now that you said that you told Finnias not to shoot at the second guard, didn't you say that?

MR MADONSELA: That is true, but as a soldier, he also took the initiative. It must have been, it might have been that he thought for security reasons, it was better to shoot at this person, and there was nothing I could do after he had carried out the act.

ADV SIGODI: But by saying to him that he must not shoot, wasn't that an act of disassociating yourself with Finnias' action?

MR MADONSELA: At that time I was trying to fulfil the order, but I could not reverse the situation after he had shot at him.

ADV SIGODI: In other words when Finnias shot him, he was acting outside the ambit of the order?

MR MADONSELA: Yes, I would accept that because we did not receive such an order, but I also had to shoot because the other person was reaching for his firearm. The second person lay flat on the ground.

ADV SIGODI: So you shot the first person because he was reaching for his firearm, his rifle?

MR MADONSELA: That is correct.

ADV SIGODI: Do I hear you correctly or do I understand you correctly if you say you shot because you thought he was going to shoot you?

MR MADONSELA: Without any doubt, if I had given him a chance to remove his firearm and point it at me, he would have shot me.

ADV SIGODI: So were you not shooting him in self defence?

MR MADONSELA: That is so.

ADV SIGODI: In other words it was not necessary for you to shoot at the two guards, you only shot just to defend yourselves, is that correct?

MR MADONSELA: That is correct.

ADV SIGODI: You could have removed them from the scene without shooting at them? You could have chased them away from the place where they were guarding without having to shoot at them.

MR MADONSELA: Yes, the order issued was to disarm them and drive them out of that place.

ADV SIGODI: Thank you Chairperson.

CHAIRPERSON: Were you, did you know that there were still camps in Angola in 1993?

MR MADONSELA: I did not have that information, but I was aware that there were some comrades who went outside the country.

CHAIRPERSON: So had you made plans about where you were going to in Zambia or what, or were you just going to go there and look for people?

MR MADONSELA: On my arrival in Zambia, I would look for MK contacts, but I knew the place where I was headed.

CHAIRPERSON: Had you been there before, to Ndola?

MR MADONSELA: Yes.

CHAIRPERSON: When did you go to Ndola?

MR MADONSELA: In 1984.

CHAIRPERSON: Why did you go to Ndola in 1984? Was that when you were 16 years of age?

MR MADONSELA: Yes.

CHAIRPERSON: Why did you go to Ndola in 1984?

MR MADONSELA: As mentioned before, I was in the Transport Department. We did not cross the border legally when we went there, but we would go collect firearms and other comrades to infiltrate.

CHAIRPERSON: What were you doing in the Transport Department when you were 16 years of age? Wouldn't it be ridiculous to place you in the Transport Section because if any Traffic cop stops you and ask you for your driver's licence, you won't have one? And now you are saying you are driving all the way up to Ndola, carrying guns and comrades and things and you are 16? Who put you in the Transport Section when you were 16?

MR MADONSELA: I did not drive from Ndola, but I only drove inside the country. With regards to the police, the order that was issued to me was that I should not stop. So even if I met one, I would not stop, I would just drive passed and find a place where we can desert the car and flee.

CHAIRPERSON: When did you learn to drive? When did you learn to drive?

MR MADONSELA: While I was still very young, I think I was 12 years old when I was arrested, when I was arrested for driving without a licence. I was driving my father's car at the time. My brother was a mechanic.

CHAIRPERSON: Where is Ndola in relation to Lusaka?

MR MADONSELA: It is in Lusaka, it is not very far.

CHAIRPERSON: Did you say Ndola is in Lusaka?

MR MADONSELA: I would ...

CHAIRPERSON: Do you think it is like Johannesburg and Soweto, Ndola and Lusaka?

MR MADONSELA: Yes, that is how I would put it. 

CHAIRPERSON: Well, I will check it up on the map, but as far as my knowledge goes, Ndola is way up north in the Copper Belt, hundreds and hundreds, if not thousands of kilometres from Lusaka. I have been to Ndola, but many years ago, but I remember it wasn't next to Lusaka. What do you say to that?

MR MADONSELA: I would not dispute what you say, but it is just my estimation.

ADV SIGODI: Just one more question. Was your brother also an MK member, Siffania?

MR MADONSELA: Siffania was not an MK member.

ADV SIGODI: So what was he doing with you when you went to attack the two guards?

MR MADONSELA: As I mentioned before, he used to assist us with transport, so even on that day, I had to collect him because the guards had big firearms in their possession. We did have a vehicle that we had parked a distance away from the spot.

ADV SIGODI: Thank you.

CHAIRPERSON: Thank you. Mr Motepe, do you have any questions arising?

MR MOTEPE: I've got no questions.

NO FURTHER QUESTIONS BY MR MOTEPE

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: No questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Thank you Mr Madonsela, that concludes your evidence. 

WITNESS EXCUSED

CHAIRPERSON: Mr Motepe, are you leading any further evidence?

MR MOTEPE: There is no further evidence to be led.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: No, thank you Chairperson.

CHAIRPERSON: Thank you. Mr Motepe?

MR MOTEPE IN ARGUMENT: Chairperson and members of the Committee, as far as the offences relating to the vehicles, I can find nothing in the Act that will allow us to launch an application at this late stage and without in fact, having filled Annexure A ...

CHAIRPERSON: Yes, it seems, I think one of the difficulties Mr Motepe is, if an offence is omitted from the form, which is linked up to the offence above, or it is not really a problem, like for instance, if the applicant applies for amnesty in respect of murder and it turns out that in the evidence, that the victim was shot during the course of a political operation with a gun that wasn't licensed, you know, having that licensed gun, that is sort of intricately linked with the act, but if somebody applies for some other offence that has got nothing to do with the incident applied for, then there is a difficulty.

MR MOTEPE: I do consider we do have a difficulty at hand, so perhaps one should just limit himself to - that is correct - 1987. It is the evidence of the applicant that on this particular day, he had specific orders, he was acting under orders and we would know that around that area, we had a situation where they ran boycotts around the country, and as he explained in his supplementary affidavit, there were dangers for them to be caught in such dark situations where electricity was not activated. They were easy targets for the Security Branch and one would even add that even criminal elements would roam easily, and they ...

JUDGE DE JAGER: Sorry, I think you could accept we wouldn't have problems with going there in order to switch on the lights, even if it meant assaulting the people there. I think that we would, or speaking for myself, I would consider that to be associated with a political objective. My problem would be if they had been ordered to disarm the people, was it necessary to kill them after he had been disarmed?

CHAIRPERSON: I don't think they died, they went ...

JUDGE DE JAGER: Oh yes, yes.

MR MOTEPE: Yes, it was just attempted murders. The situation was that when they arrived there, the guards were obviously armed and there was a rifle at view, and when the guards were ordered to "staan vas" as they were ordered, one of them attempted to grab the rifle. Logic would tell us that a security guard in that situation, realising that he is in danger, he was going to shoot.

CHAIRPERSON: Yes, you've got a situation now?

MR MOTEPE: Yes. It is a situation that did not require a Commander to come and say "now shoot", he was far remote at that particular time. It was an emergency, if one can say so, he was faced with a situation and he had to, in my submission, he had to do it. Had he not done it, he wouldn't have accomplished his task of firstly complying with the command of reactivating the sub-station. So yes, the shooting at that particular time, although there was no specific command on the shooting, in fact there was a command to an effect "do not shoot", just disarm and drive them out, but they were faced with a situation, they had to shoot and that is what they did. In my submission ...

CHAIRPERSON: I think what does the command "disarm" embrace? I mean, when I give you an order "go and disarm those armed guards", does that necessarily exclude the use of violence?

MR MOTEPE: Not at all. In fact it has been part of our history that people in the communities were ordered, comrades were ordered or told to go and disarm policemen and they used to kill those policemen in order to get those arms. It was almost a similar situation, the Commander couldn't have, he never perhaps foresaw the situation, but couldn't have wished away the fact that there might be a shooting. Once you talk of disarming a person who is trained and armed to guard a particular place, you want to remove him from the place and you want to take his arm, obviously he has to comply with his orders himself.

JUDGE DE JAGER: I think it is sort of by implication that you should foresee there could be violence and there could be shooting?

MR MOTEPE: That is correct. And all the incidents emanating from this particular occurrence, in my submission they do qualify as politically motivated. What other motivation would they go and want to switch on the power station, was it only for their homes? No, but for the community at large, with a clear command from their Commander. In my submission, on this particular occurrence, the applicant does qualify for amnesty.

JUDGE DE JAGER: I am only, I've got still problems with the second shooting, after he had been disarmed, isn't that disproportionate to his objective then?

MR MOTEPE: In a sense it is, but if one looks at the supplementary affidavit, they reached a stage where they both thought that the one who was shot, was dead. The other one who was alive, obviously had a chance of looking them in their faces, and he was going to be a danger, after this, and one would accept that ...

CHAIRPERSON: A danger in the sense that he might identify them?

MR MOTEPE: Precisely. He might identify them and lead to their subsequent arrest and convictions. For that particular reason, although one is sitting here looking at it, it looks as though it was disproportionate, but it is very clear that it arose from that particular incident, and in order to quell whatever leads that might be endangering them. It is my submission that it is in that context that that particular shooting happened. In my submission therefore, the applicant at least as far as this occurrence, has made a full disclosure and he does qualify in terms of the Act. Thank you Chairperson.

MS LOCKHAT IN ARGUMENT: Chairperson, I concur on almost everything my learned colleague had stated in this application. It is an issue which Adv Sigodi did raise, that once these two policemen were disarmed, one was laying flat on the ground, the other one was already shot. They could have left at that stage, and just left and hoping that they would not be recognised, but it seems that it was an issue for the applicants, at that stage, that they might be identified by the policemen. The fact that, it doesn't seem as if they were good shots either, if they even wanted to kill both the policemen, because the one was shot in the stomach and the other one in the leg. I mean it just so happen that they also did identify the applicants. The fact that this applicant also associates himself with that act by Finnias, is important. He associated himself with the continuous act, by Finnias, and his reason for shooting the policemen was because he was afraid he was going to be attacked and shot in return, where Finnias had another objective, maybe this applicant didn't go that far to think that "look, we might be identified" and Finnias then took it a bit further, and asked him "did you shoot the person", that is what the applicant stated, that Finnias actually asked him whether he had shot the person and he said no, and then Finnias just continued the act. 

CHAIRPERSON: And do you agree with Mr Motepe with regard to the other incidents, the driving, the vehicles?

MS LOCKHAT: In respect of that particular ...

CHAIRPERSON: In respect that they are not before us?

MS LOCKHAT: I, that is my submission as well Chairperson, thank you.

CHAIRPERSON: Thank you, do you have any reply Mr Motepe?

MR MOTEPE: I've got no reply Chairperson, thank you.

CHAIRPERSON: Yes, thank you Mr Madonsela, Mr Motepe, Ms Lockhat. That brings this hearing to a conclusion, we will reserve our decision in this matter and it will be handed down as soon as possible. 

MR MOTEPE: Chairperson, concerning other matters, one of the applicants, I was only able to consult with him this morning, and even then it was not a full consultation. The other applicant as I have indicated in the chambers, there is some difficulty with his evidence, I was still trying to sort it out, and find out exactly what the real story is. I would perhaps ask the Commission to, I have already discussed that with Lynn that perhaps we should continue tomorrow. We will be able to finalise all these matters tomorrow, if that will please the Committee?

MS LOCKHAT: That is in order with me, Chairperson.

MR MOTEPE: I am indebted to the Committee.

CHAIRPERSON: Yes, thank you. Mr Motepe has indicated that he would like a bit of time to take further instructions from his clients in these two remaining matters in which he appears. It is now after three o'clock, he has asked whether we could then commence tomorrow morning. His request does not seem to be unreasonable and we will accordingly adjourn until tomorrow morning, at this venue, I think at half past nine? At half past nine tomorrow morning. The people from Correctional Services, is half past nine tomorrow morning, will that be all right? Thank you, thank you very much.

MS LOCKHAT: Thank you Chairperson.

MR MOTEPE: Thank you Chairperson

CHAIRPERSON: So we will then adjourn until half past nine tomorrow morning.

MR MOTEPE: Thank you Chairperson.

COMMITTEE ADJOURNS

