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

&#9;AMNESTY HEARING

DATE:&#9;13TH APRIL 1999

NAME:&#9;ZAKHELE SIMELANE

APPLICATION NO: AM 3122/96

MATTER:&#9;TWO VEHICLE ROBBERIES, BANK ROBBERY &#9;&#9;AND&#9;ATTEMPTED MURDER

HELD AT: CENTRAL METHODIST CHURCH, &#9;&#9;&#9;&#9; JOHANNESBURG

DAY :&#9;2

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CHAIRPERSON: For the record I'm Judge Pillay. I'm going to ask my colleagues to just announce themselves for the purposes of the record.

ADV SIGODI: Adv Sigodi from the Port Elizabeth Bar.

DR TSOTSI: Dr Tsotsi and attorney at Port Elizabeth.

CHAIRPERSON: Would you please announce your names?

MR MOTEPE: Adv Motepe from the Pretoria Bar.

MS THABETE: Thabile Thabete, Evidence Leader, TRC.

CHAIRPERSON: Mr Motepe, I understand that you're appearing for the first two applicants today.

MR MOTEPE: That is correct.

CHAIRPERSON: They are different matters though.

MR MOTEPE: That is correct, Chairperson.

CHAIRPERSON: So which one are you going to deal with first?

MR MOTEPE: The matter of Zakhele Simelane.

CHAIRPERSON: We will complete the evidence in that case and then move on to the other one. Is that what you plan to do?

MR MOTEPE: I'm in the Committee's hands, but I thought we would finish with this one and then go to the next.

CHAIRPERSON: Good, we'll do it that way.

MR MOTEPE: As it pleases the Committee.

CHAIRPERSON: Proceed.

MR MOTEPE: Just bear with me, the applicant is having problems.

CHAIRPERSON: You can proceed.

MR MOTEPE: Committee Members, as already discussed in the chambers, what we intend doing is to hand in the affidavit that has already been prepared, the supplementary affidavit. I don't know at this stage if the Committee would like me to read it into the record. As I have already indicated, the application by the applicant is detailed, it gives all the necessary information that we require. The supplementary affidavit was just to add where, especially on the question of instructions by commanders. I don't know if the Committee would like me to read any of this into the record.

CHAIRPERSON: Before you carry on, Mr Simelane, which language would you prefer to use?

MR SIMELANE: Zulu.

CHAIRPERSON: Very well.

ZAKHELE SIMELANE: (sworn states)

CHAIRPERSON: You may be seated. Yes Mr Motepe, you were saying?

MR MOTEPE: I was saying that I don't know at this stage whether the Committee would like me to read the supplementary affidavit into the record or is it not necessary?

CHAIRPERSON: No, we can all read, so you don't need to do that.

MR MOTEPE: Okay. We do not have anything to add on the information that we have, that the Committee has before it. As I've already indicated, the application is detailed, all the information is in there.

CHAIRPERSON: Mr Simelane, have you heard what your advocate has said to us about your testimony?

MR SIMELANE: Yes, Your Honour.

CHAIRPERSON: Are you aware of the contents firstly, of your application?

MR SIMELANE: Yes.

CHAIRPERSON: And do you confirm the contents?

MR SIMELANE: Yes, I do.

CHAIRPERSON: Are you aware of the contents of the affidavit that supplements that application?

MR SIMELANE: Yes.

CHAIRPERSON: Do you confirm the contents of that affidavit?

MR SIMELANE: Yes.

CHAIRPERSON: Have you got any other questions that you wish to raise with the witness, Mr Motepe?

MR MOTEPE: No, there's no question on my side.

NO QUESTIONS BY MR MOTEPE

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS THABETE: I do have questions, Chair.

&#9;Mr Simelane, you have given evidence that, or your evidence says that you were an SDU member, is that correct?

MR SIMELANE: That is correct.

MS THABETE: Under which area were you operating?

MR SIMELANE: Zone 5.

MS THABETE: Where? Whereabouts in Zone 5?

MR SIMELANE: Katlehong.

MS THABETE: And can you briefly explain the structure of your SDU in Katlehong, from the commander right down to the last, how many members you were, who was your commander, how you used to operate. - just briefly.

MR SIMELANE: Let me start off with the first one. As I was a member of the SDU we were divided into cells and sometimes there would be 10 to 15 people within a cell and each cell had a commander and there was an area commander as well as a central commander.

MS THABETE: Before committing the operation that you've applied for amnesty for, what other activities did you used to do as SDUs in Katlehong, or what other activities were you involved in?

MR SIMELANE: I would say that I was patrolling at night, patrolling with other members of the SDU's. Those are the activities in which I was involved.

MS THABETE: Coming to the first robbery you spoke about, where you highjacked a car to go and fetch material, what was going to be done with the material?

MR SIMELANE: The material was to be used. I would say there were firearms involved as part of the material and these were to be used in protecting ourselves.

MS THABETE: Do you have information as to who supplied that material that you were going to fetch?

MR SIMELANE: I would not be in the position to say because we would be given an address to say we should go to Secunda at a particular address to fetch the material.

MS THABETE: And who gave you that address?

MR SIMELANE: Manyala, our central commander.

MS THABETE: And what position did he hold in the ANC or what authority did he have besides being a commander?

MR SIMELANE: I would not know, I just knew that he is the one who was liaising with the ANC as a central commander.

MS THABETE: So are you saying you don't know whether was a member of any ANC or not?

MR SIMELANE: I can say he was a member of the ANC, because all the approvals came from the ANC.

MS THABETE: Can you explain what you were going to do with the self-made weapons that were going to be made from this material?

MR SIMELANE: Would you please repeat the question.

MS THABETE: Can you explain how you were going to use the weapons, or rather what the weapons that you were going to make were going to be used for? Remember you said you were going to fetch material to be used to make home-made weapons, so my question to you is what were those weapons going to be used for?

MR SIMELANE: Let me start off by saying that the situation at Katlehong was terrible, we were under attack most of the time, we were not in the position to protect ourselves under Inkatha's attack. They were being assisted by the Security Forces. We wanted to have our own weapons and we had to make our own home-made guns with which we would be in the position to protect ourselves.

MS THABETE: Sorry, I don't know whether I missed - who used to attack you?

MR SIMELANE: Inkatha.

MS THABETE: On page 17 of the bundle, in your statement you say you were fetched and taken to the centre point at Khumalo where you met with other comrades. Who fetched you?

MR SIMELANE: On which date may I ask?

MS THABETE: 6th of December '91.

MR SIMELANE: Not 16?

MS THABETE: Sorry, 16th, yes.

MR SIMELANE: It was a Tuesday(?) and we had gone to a rally and on coming back I went out to see my girlfriend and on coming back from my girlfriend I received a message to the effect that comrades had come to say I was being sought at the centre point and I had to avail myself there at 7 o'clock, which I did.

MS THABETE: So you were not - were you fetch by someone to the centre point, or you went there 

yourself?

MR SIMELANE: As I have indicated, people came to pick me up to say we should go to centre point. I was not there at the moment.

MS THABETE: Still on the first operation, when you committed the first operation of stealing the vehicle, how many were you?

MR SIMELANE: ...(no English interpretation)

MS THABETE: How many were you?

MR SIMELANE: There were four of us.

MS THABETE: Besides Mlungisele Lindabane(?) that you've mentioned, who are the other two that you were with?

MR SIMELANE: Comrade Vincent as well as comrade Mpigelele.

MS THABETE: Where are they right now?

MR SIMELANE: I would not say. What I heard is that one of them has since passed away at Dekule, following the 1993 violence and I don't know where the other one is.

MS THABETE: In your own words, how do you, how would you say - the armed robberies that you committed, how would you say they were political? In what way were they political?

MR SIMELANE: I did explain briefly in my application that we were attacked most of the time at Katlehong so that the youth were no longer going to school, the adults were not going to work as well and there was no money with which we could buy firearms. So an order was issued to the fact that for us to be able to protect ourselves we should go and procure help to try and protect ourselves.

MS THABETE: Why couldn't you use your own cars, why did you need to rob other people's cars to go and fetch that material?

MR SIMELANE: We had been instructed to the effect that we should not, on fetching such materials we should use vehicles belonging to anyone of the SDU members, so avoid being arrested.

MS THABETE: In your supplementary affidavit on page 2 you talk about a gun that was confiscated by the police, where did you get this gun from?

MR SIMELANE: I did not have a firearm on this day, I had a toy gun. But yes, we used to get our firearms from our commanders. For example when we were patrolling in the evenings we would go and sign for the issuing or the reception of such firearms and we would take them back in the morning. We used to use these firearms as well as ammunition for which we had to append our signatures.

MS THABETE: If you were not caught, what were you going to do with the car after you had collected the material?

MR SIMELANE: We would put the car at a place where it could be easily located by its owner.

MS THABETE: When your commander told you to go and rob the cars, did he explain to whether it was the policy of the ANC to do so?

MR SIMELANE: No.

MS THABETE: He did not explain?

MR SIMELANE: He did indicate that, or should I say it is not the policy of the ANC.

MS THABETE: And with regard to the bank robberies, did he explain whether it was the policy of the ANC to robe banks?

MR SIMELANE: That too was not the policy of the ANC.

MS THABETE: So what justification can you give for having proceeded to commit these acts even though they were not policies of the ANC?

MR SIMELANE: I would say that we robbed banks not following the ANC policies, but we knew that we were being attacked most of the time and we were trying that the commanders should confer with the ANC so that we can get assistance. 

&#9;At the time the ANC military wing had been banned or disbanded so that that structure could not be used and therefore the SDUs had to be set up so that the community could protect itself. 

&#9;There were policies within the SDUs themselves and members knew that certain policies were broken under certain circumstances.

MS THABETE: With regard to the second robbery on the 7th of February 1992, is it correct that you actually did rob the bank?

MR SIMELANE: That is correct.

MS THABETE: Which bank was this?

MR SIMELANE: Volkskas Bank in Heidelberg.

MS THABETE: How did you rob it?

MR SIMELANE: We were travelling in a vehicle. I got off the vehicle, there were two of us in the vehicle, Boy Ndamane went to park the car at the door of the bank. He went in first and I came in from behind and we took some money from the employees of the bank. We out, got into the car and fled.

MS THABETE: Were there any people injured?

MR SIMELANE: According to what I heard in Court, one employee apparently went to see a doctor, apparently he or she was disturbed mentally, but no-one was hurt.

MS THABETE: So they weren't any shootings that occurred during this robbery?

MR SIMELANE: That is correct.

MS THABETE: And when there was a chase between you and the policemen, were there any shootings that occurred?

MR SIMELANE: No.

MS THABETE: Thank you Mr Chairman, no further questions.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Motepe, any questions?

MR MOTEPE: I don't have any questions.

NO QUESTIONS BY MR MOTEPE

ADV SIGODI: Where is comrade Manyala today?

MR SIMELANE: I was told that he passed away in the past few years.

ADV SIGODI: And comrade Dondolo?

MR SIMELANE: He too I heard is deceased.

CHAIRPERSON: Mr Simelane, are those leg irons you have on?

MR SIMELANE: May the question please be repeated. Yes, Your Honour.

CHAIRPERSON: Will the prison authorities please remove that. Proceed.

ADV SIGODI: You say that you wanted to get his material to make home-made guns or weapons, do you know where these home-made weapons were going to be manufactured?

MR SIMELANE: Yes, I know.

ADV SIGODI: Where were they going to be manufactured?

MR SIMELANE: At our centre point, our meeting place.

ADV SIGODI: And who was responsible for manufacturing the home-made weapons?

MR SIMELANE: Katiwe was experienced, Katiwe and Khosikona Majola were the ones who were charged with the manufacturing of these.

ADV SIGODI: Were they charged and convicted, do you know?

MR SIMELANE: No, they were not arrested because our operation was not accomplished.

ADV SIGODI: I thought you said they were charge.

INTERPRETER: Chairperson, a point of rectification, they were charged with the responsibility of manufacturing the weapons.

ADV SIGODI: Okay, no further questions.

CHAIRPERSON: Doctor?

DR TSOTSI: For which offences are you seeking amnesty?

MR SIMELANE: All the offences that I committed.

CHAIRPERSON: No, we aren't able to give you blanket amnesty, you've got to specify them to us, that is why the question was asked.

MS THABETE: May I come to his assistance there? I believe he's referring to the offences that are mentioned in here.

CHAIRPERSON: Three robberies?

MS THABETE: Three robberies, that is correct.

ADV SIGODI: Is he not applying for unlawful possession of firearms and ammunition?

MS THABETE: As he has already explained he didn't possess the guns actually, he only had a toy and he was only convicted for robberies, not for arms and ammunition.

DR TSOTSI: Yes, what I understand is that he was convicted for robbery in respect of the first robbery, what about the second robbery? Wasn't there a subsequent conviction on two counts of robbery? This one robbery, is it three robberies - I'm a bit confused, that he is seeking amnesty for?

MS THABETE: It is three robberies, two for the motor vehicles, the third one for the bank.

CHAIRPERSON: What was your sentence?

MR SIMELANE: 19 years prison.

CHAIRPERSON: How was that made up?

MR SIMELANE: May the question be repeated please.

CHAIRPERSON: How was that made up. How did they get to 19 years.

MR SIMELANE: For the first car theft offence I was given a sentence and for the second offence I was given 13 years and for this other offence I was sentenced as well and the total number of years amounted to 19.

CHAIRPERSON: No wait, what did you get for the first robbery of the motor vehicle?

MR SIMELANE: Six years.

CHAIRPERSON: And the second motor vehicle robbery?

MR SIMELANE: The vehicle as well as the bank robbery were combined and I was given 13 years for both.

CHAIRPERSON: I see, so the total came to 19. And when did this sentence start?

MR SIMELANE: On the 21st of May 1992.

CHAIRPERSON: May?

MR SIMELANE: May 1992.

CHAIRPERSON: Was the bank robbery successful?

MR SIMELANE: No, we did not succeed in robbing the bank. We did not succeed, but we did manage to get hold of the money at the bank, but our vehicle broke down along the way and we were arrested.

CHAIRPERSON: And the first motor vehicle that you robbed, what happened to that vehicle?

MR SIMELANE: We were arrested on the scene of the crime.

CHAIRPERSON: The first robbery for which you got six years, you robbed a motor vehicle.

MR SIMELANE: That's the one I'm referring to, Your Honour, we did not succeed, we were arrested on the scene of the crime.

CHAIRPERSON: And having been arrested you committed a second robbery of a motor vehicle at the time you robbed the bank?

MR SIMELANE: We got out of jail on bail and we pursued with our struggle.

CHAIRPERSON: Yes, thank you, you are excused.

ADV SIGODI: The second vehicle that you used, who did you get it from, where did you get it from?

MR SIMELANE: Our commanders - or should I say, on the 9th of February 1992 they took us along to point the car to us at Maluleki Section and they said this is the vehicle that we were going to use.

ADV SIGODI: How was it identified, I mean why was it chosen, that particular vehicle?

MR SIMELANE: The reason here is that we had been told that his person was an Umdlembe(?), he was not contributing and he would not come to assist during times of fighting.

ADV SIGODI: Sorry, I don't understand, what is an Umdlembe?

MR SIMELANE: It's a sell-out.

ADV SIGODI: And then what happened to that vehicle?

MR SIMELANE: We took it on a Monday, but it broke down along the way and its owner found it after we were arrested.

ADV SIGODI: Thanks.

CHAIRPERSON: Thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: He can leave, he can go back. 

&#9;Is that all you have to produce by way of evidence, Mr Motepe?

MR MOTEPE: In terms of evidence yes, but I just wanted to point in tying up. I don't know if this will be the time ...(intervention)

CHAIRPERSON: We'll come to that.

MR MOTEPE: Okay.

CHAIRPERSON: Ms Thabete, is there any bits of evidence you want to lead?

MS THABETE: No, Mr Chairman.

CHAIRPERSON: Are we done with the evidence?

MS THABETE: We are done with the evidence.

CHAIRPERSON: Yes, Mr Motepe, you wanted to say?

MR MOTEPE IN ARGUMENT: When one looks at the evidence that has been given before the Committee, one would realise that the offences were as a result of the attacks that were mounted on the communities by several forces, be it Inkatha, be it Security Forces, and one can see clearly the link between these types of offences, that the communities didn't have arms to defend themselves, they had to go and get arms somehow and robbing the bank is getting the money to buy the arms was one of the means that they used to acquire those arms.

CHAIRPERSON: If that was not the policy of the organisation on whose behalf he operated, would he be entitled to then rely on the allegation that he operated on the basis of a command?

MR SIMELANE: If one looks at Section 20(3), it is enough for one to have acted on the orders of the commander of the SDU. Even though the policy of the liberation movement was not to rob banks as it were, but they had specific orders from the SDUs, which were protecting the communities at that time. And one must remember that there was not always a clear command between the ANC headquarters and the SDUs. Communities were faced with urgent situations where they were being attacked. At times they had to come up with their own means of protecting themselves, and that was the situation in this case.

CHAIRPERSON: So you are saying that it could have been the policy of the SDUs to do that?

MR MOTEPE: The policy of the SDUs at that particular time, not a long-standing policy. And as one knows even liberation movements like the PAC have admitted that they used to rob banks and that is ...(intervention)

CHAIRPERSON: The SDUs were not established by the PAC.

MR MOTEPE: That is correct, but ...(intervention)

CHAIRPERSON: We all know they were established by the ANC.

MR MOTEPE: That is correct, I was just indicating the robbing of banks was not a different thing, it was actually done by other movements. And if one looks at this sub-section I've just referred to, the motive of the person is of relevance here as well. It is clear that it was a political motive, nothing else, there was no personal gain on these particular offences, it was a political motive. If one looks at, I believe it's (3)(e):

&#9;"... whether the act, omission, offence was committed in the execution of an order, on behalf of, or with the approval of the organisation, institution, liberation movement ..."

I believe it would fall under - SDU could be regarded as an institution, not necessarily a liberation movement. The ANC in this particular instance will be a liberation movement, but provision is given that policies might have been of institutions, organisations, even liberation movements. In this particular instance the policy of SDU institution. So in my submission the applicant does qualify in terms of the Act.

CHAIRPERSON: Anything more?

MR MOTEPE: Save to refer again to the same section, but under (b), the context. This was as a result of the uprisings that were being experienced and I have already addressed this point I believe. I just wanted to tie it with this sub-section. That is all at this stage.

CHAIRPERSON: Ms Thabete?

MS THABETE: I have no argument, Mr Chair, except to say that I would have no objections if amnesty is granted and I leave it in the capable hands of the Committee to make a decision. Thank you.

CHAIRPERSON: Yes, we're going to take some time to give a decision in this matter. 

 

 

NAME: MXOLISI DUMA 

APPLICATION NO: AM 3145/96

MATTER: TRANSPORTATION OF WEAPONS 

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CHAIRPERSON: We'll proceed with the other one now. Mr Duma, which language would you prefer to use?

MXOLISI DUMA: Zulu.

CHAIRPERSON: Yes, Mr Motepe?

MR MOTEPE: We will follow the same procedure as we followed in the first one. I've already presented the supplementary affidavit and we have nothing further to add.

CHAIRPERSON: Ms Thabete?

CROSS-EXAMINATION BY MS THABETE: Thank you, Mr Chair, just a few questions.

&#9;You say you were requested by Mr Mpo Tseklo(?) to transport his fellow comrades.

MR DUMA: Yes.

MS THABETE: Who was Mr Mpo Tseklo and did he belong to any political organisation?

MR DUMA: Yes, he was an ANC member, Mpo Tseklo, in Meadowlands, Zone 2.

MS THABETE: Besides being a member of the ANC, did he hold any position, was he involved in any activities, was he an active member, can you just give us more information about him?

MR DUMA: Yes, Mpo Tseklo was an ANC follower and an activist and he was at school at the time, involved in the school activities as well and the in the forefront in the struggle matters inasfar as school environment was concerned.

MS THABETE: Did you say he was an ANC follower or supporter or a member?

MR DUMA: He was an ANC member.

MS THABETE: Why were you specifically chosen to transport these people?

MR DUMA: Mpo chose me because he knew me and I also had a car at that time.

MS THABETE: Sorry, were you a member or a follower of the ANC?

MR DUMA: I was a follower at that time.

MS THABETE: Were you a card-carrying member? Sorry, are you saying you were a follower?

MR DUMA: Yes, I was a follower.

MS THABETE: Before he chose you to transport his fellow comrades, did he used to involve you in other operations?

MR DUMA: Although I would not refer to them as operations, but he would refer people to come to me for transport, to assist in things like funerals and things like that which required transport.

MS THABETE: Did you know these comrades that you had to transport?

MR DUMA: No, I did not know them. I wasn't quite used to them as such, but I knew them by sight. Mpo is the one who told me one of them, the name of one of them.

MS THABETE: What was the name of that person?

MR DUMA: Shakes was the name.

MS THABETE: Do you know where he was from?

MR DUMA: Yes, he also resided in Meadowlands, Zone 2.

MS THABETE: And were you told what they were going to do where you were transporting them to?

MR DUMA: Yes, that was told to me.

MS THABETE: What were they going to do there?

MR DUMA: They were going to fetch firearms, guns.

MS THABETE: Exactly where were the arms that they were going to fetch?

MR DUMA: Those guns were fetched from Booysen, a certain place in Booysen.

MS THABETE: Was it in a house? Where was this place situated where you had to go and get these firearms?

MR DUMA: When we got to Booysen I parked the car next to a scrap yard and they alighted from the car and went inside the scrap-yard and came back after a few minutes with bags full of arms.

MS THABETE: Would you be in a position to know where these firearms came from?

MR DUMA: As to where they were coming from no, I don't know and as to how they got there I don't know as well.

MS THABETE: Cam you briefly tell us how you were caught?

MR DUMA: We were arrested on our way back to Soweto with these firearms in the car. As we approached a certain stop there were police there and they tried to stop us and we stopped. In fact they stopped us, we stopped and they wanted to - they didn't stop us ...

INTERPRETER: A point of rectification - we were being stopped, but I did not stop.

MR DUMA: I was convicted for unlicensed ammunition and in possession, because I was found also in possession of unlicensed firearms.

MS THABETE: As a person who has applied for amnesty, how would you justify your having transported people to go and fetch arms for the ANC? How would you justify that politically?

MR DUMA: There is a correlation between what I did and the political aspect because the violence was rife in the area where we resided and people were killed, attacked left right and centre. Most of the being who were being attacked and killed were ANC members being attacked by the organisation, IFP, together the police. Now those things resulted to the community deciding and together with the comrades deciding that we should be able to obtain firearms or weapons rather, to protect the community. Now that is how this is related to politics, my actions that is.

MS THABETE: Thank you, Mr Chair, no further questions.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Motepe, have you got anymore questions?

MR MOTEPE: I don't have anymore questions.

NO FURTHER QUESTIONS BY MR MOTEPE

DR TSOTSI: On page 68 of the bundle, paragraph 10(a) you say that your political objective was to defend the communities of Meadowlands and Mzimshlope, why did you feel called upon to defend those communities?

MR DUMA: To defend the community was a right to every affected party, that something must be done to protect the attacks, the community from attacks.

DR TSOTSI: So that what you chose to do, you chose of your own volition to defend these communities?

MR DUMA: Yes, on my own volition I did choose to defend the community of South Africa at large because we were being oppressed at the time.

ADV SIGODI: When you were asked to transport these people, were you paid?

MR DUMA: No, I wasn't paid.

ADV SIGODI: You say you wanted to defend the communities of Meadowlands and Mzimshlope, how were you going to defend these communities? I still don't understand.

MR DUMA: In a way of availing my car to be used for such activities to obtain things that will help us to be able to defend the community, weapons, things like weapons that would have been used by people defending, or in a mission of defending the community.

ADV SIGODI: Were you employed at the time?

MR DUMA: No, I was self-employed, I was not employed.

ADV SIGODI: What work were you doing?

MR DUMA: We had at home a fast-food outlet.

CHAIRPERSON: For what are you actually applying for amnesty?

MR DUMA: I'm applying for amnesty for, especially as we are aware that we are living in a new era here in South Africa, the apartheid has since died and it was a result of apartheid that these things happened and that is in the past now, we are living in the present and the future and we are preaching the gospel of reconciliation here in the country, South Africa that is. I deemed it fit and appropriate for me to come forward and disclose all the truth to the community of South Africa through this vehicle of TRC, so that they may know better as to what happened.

CHAIRPERSON: I think you misunderstand my question, I didn't ask why you are applying for amnesty, I'm asking in respect of what offences.

MR DUMA: In respect of my conviction. I'm in prison now and I'm coming forward ...(intervention)

CHAIRPERSON: What, what crime? What do you want us to do, grant you amnesty for what, in respect of what?

MR DUMA: Grant me amnesty because I've been convicted for going to fetch the firearms and attempted murder of some policemen. Those are the acts I'm seeking amnesty for.

CHAIRPERSON: Now that's what I'm getting at. Most of your testimony concerned the transportation of all these weapons, tell us more about this attempted murder.

MR DUMA: To explain briefly, when I was being convicted at the court of law with regard to these cases that I've referred to, they gave me 5 years for attempted murder.

CHAIRPERSON: How did you commit this attempted murder?

MR DUMA: It was not me who attempted to murder, but people in my company that did that, who were shooting at the police, the people I was transporting. Because ...(intervention)

CHAIRPERSON: While you were escaping from the police?

MR DUMA: It is because we had firearms concealed in our car and they were not licensed.

CHAIRPERSON: Mr Duma, listen to the question, I'm trying to help you, I'm not trying to catch you out. You were part of a group of people, some of whom shot at the police, do I understand you correct?

MR DUMA: Yes.

CHAIRPERSON: All I'm asking is, was that the time you were driving that motor vehicle escaping from these police?

MR DUMA: Yes, I was driving this vehicle when I was escaping from the police.

CHAIRPERSON: So although you never actually shot yourself, you were part of that group?

MR DUMA: Yes, that is so.

CHAIRPERSON: You accepted responsibility for everything that happened on that trip, do I understand you correct?

MR DUMA: Yes.

CHAIRPERSON: And you needed these weapons, as far as you were concerned, to defend that community and therefore the police were shot at? You couldn't allow the police to get hold of those weapons, is that the position?

MR DUMA: Yes, that was the position.

CHAIRPERSON: There was only one count of attempted murder that you were convicted of?

MR DUMA: Yes. 

CHAIRPERSON: When did that happen, not the conviction, the incident.

MR DUMA: That happened in 1990, November.

CHAIRPERSON: November.

MR DUMA: Yes, November.

CHAIRPERSON: And you were transporting weaponry?

MR DUMA: Yes, I was asked to transport people who were going to fetch weapons at that particular time.

CHAIRPERSON: And that was successful, you did collect weapons?

MR DUMA: Yes, we did a successful, except for the time when we came across the policemen.

CHAIRPERSON: So when you came across the policemen there were weapons in the car? That is how I understand your application.

MR DUMA: Yes.

CHAIRPERSON: Do you I understand you correctly that when you were asked to assist by transport, you willingly agreed and that was your contribution to the political struggle?

MR DUMA: Yes, because I knew the people who were asking me this and I also knew their involvement in the community and I agreed.

CHAIRPERSON: When the police tried to stop your car, you drove past, you didn't accede to that command, do I understand you correctly?

MR DUMA: When the police tried to stop the car one of the people inside said: "There are the police, don't stop in case they stop you", and indeed I drove past.

CHAIRPERSON: Now if you knew it was the police yourself, without being told, would you have stopped or would you have driven on on your own?

MR DUMA: As for me I wouldn't have stopped because at the time police were not faithful, I mean you could not trust police.

CHAIRPERSON: What was your sentence?

MR DUMA: I was given 8, 9 years.

CHAIRPERSON: 5 for attempted murder?

MR DUMA: Yes.

CHAIRPERSON: Two for possession of firearms?

MR DUMA: Yes.

CHAIRPERSON: And 2 for possession of ammunition?

MR DUMA: Very true, Your Honour.

CHAIRPERSON: Were they ordered to run concurrently or were they separate?

MR DUMA: May you please repeat your question?

CHAIRPERSON: Were those separate sentences ordered to run concurrently or were they kept separate?

MR DUMA: Different times.

CHAIRPERSON: So you're only serving that - I see you're in prison clothes, are you still serving that particular 9 year sentence?

MR DUMA: Yes, 9 years is part of the entire sentence that I'm serving.

CHAIRPERSON: Are you serving other parts of sentence?

MR DUMA: Yes.

CHAIRPERSON: Okay. What for?

MR DUMA: The one case that I was convicted for was being suspected of robbing the bank and attempting to steal a car.

CHAIRPERSON: Those are independent acts, separate from your application?

MR DUMA: Yes, those had nothing to do with this amnesty application. The other 10 years is still on appeal at court.

CHAIRPERSON: Okay. Yes thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Any other bits of evidence, Mr Motepe?

MR MOTEPE: No extra evidence.

CHAIRPERSON: Ms Thabete, have you got any evidence?

MS THABETE: No evidence, Mr Chair.

CHAIRPERSON: Are we done with the evidence?

MS THABETE: We are, Mr Chair.

CHAIRPERSON: Yes, Mr Motepe?

MR MOTEPE IN ARGUMENT: Committee Members, in this particular case one doesn't need to dwell much into the argument because most of the points have been raised, the link to the political objectives and they clearly qualify under the Act, so one doesn't need really to dwell much on this. That is all I wish to say.

CHAIRPERSON: Can you deal with one aspect. He's made application in his, if I may term it "man in the street" way in respect of unlawful possession of firearms and ammunition, but he may be guilty of some other offences covered by the Arms and Ammunition Act, for example transporting and distribution maybe. Do you think we can include that should we lean towards granting amnesty?

MR MOTEPE: I think that will be proper in case in future such charges might be brought against him, that that will be proper now to deal with even though it was not specifically mentioned, but they are tied together.

CHAIRPERSON: Ja, ja. It will be based on the same facts, isn't it?

MR MOTEPE: That is correct.

MACHINE SWITCHED OFF

CHAIRPERSON: Ms Thabete, have you any argument?

MS THABETE: No argument. This should concluded this matter, Mr Chair.

CHAIRPERSON: What is your attitude towards the application?

MS THABETE: Mr Chair, my attitude is that from the evidence of the applicant clearly it appears that he associated himself with the members of the community who were protecting the community and by providing transport it was his contribution. And for the charges that he has been convicted of he has associated himself with it and my attitude would be to have no objection if amnesty were to be granted. 

CHAIRPERSON: Yes, thank you, we are going to reserve our decision in this matter and we will finalise in due course.

MR MOTEPE: If I may ask, is it in both matters?

CHAIRPERSON: Ja.

MR MOTEPE: As it pleases the Committee.

CHAIRPERSON: You're excused if you want to leave.

 

 

 

 

 

 

 

 

 

NAME:&#9;THEMBA NHLAPO

APPLICATION NO: AM 1367/96

MATTER:&#9;KILLING OF ANDRIES MOLAOA

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

CHAIRPERSON: Ms Thabete are there any other matters that we need to deal with?

MS THABETE: Yes, Mr Chair, the matter that remains is the matter of Mr Themba Nhlapo. The legal representatives are here. If I can be given five minutes to talk to the victims. I did consult with them yesterday.

CHAIRPERSON: We'll adjourn for five minutes then.

MS THABETE: Thank you.

INTERPRETER: Will the court please stand.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Miller, you're appearing with the applicant in this matter?

MR MILLER: That is correct yes, Chairperson.

CHAIRPERSON: Okay. Mr Nhlapo, what language would you prefer to use?

MR NHLAPO: Zulu.

CHAIRPERSON: Will you please stand.

THEMBA T NHLAPO: (sworn states)

CHAIRPERSON: Be seated. Yes, Mr Miller?

EXAMINATION BY MR MILLER: Thank you, Chairperson.

&#9;Mr Nhlapo, you have read your application for amnesty, is that correct?

MR NHLAPO: That is correct.

MR MILLER: And you confirm the contents thereof, is that correct?

MR NHLAPO: That is correct.

MR MILLER: You've also made an affidavit which was signed this morning, which expands a little bit on your ...(intervention)

ADV SIGODI: Just hang on Mr Miller. I want to arrange headphones for the victims, they can't hear anything.

MR MILLER: Sorry.

ADV SIGODI ARRANGES FOR HEADPHONES FOR VICTIMS

MR MILLER: Thank you, Chairperson.

&#9;Now this morning you made a further affidavit which expanded somewhat on your original application, is that correct?

MR NHLAPO: That is correct.

MR MILLER: And you have read this affidavit and signed it, is that correct?

MR NHLAPO: That is correct.

MR MILLER: And you confirm the contents thereof.

MR NHLAPO: Yes, I do.

MR MILLER: Just in brief, you admit that you killed the deceased on the 27th of August 1992, while you were ...(intervention)?

MR NHLAPO: Yes, I do.

MR MILLER: And just very briefly, without going into too much detail, just very briefly for the record, what was your motivation in committing this offence?

MR NHLAPO: It was not my intention to kill the deceased, we wanted to rob the deceased of the firearm.

MR MILLER: Yes, but what did you plan to do with the firearm?

MR NHLAPO: We wanted to make use of the firearm at my place of residence.

MR MILLER: Was this because you were being attacked, as you set out in your affidavit?

MR NHLAPO: Yes, we were being attacked at our place of residence.

MR MILLER: Now the - and also just for the record, you are serving a sentence of 21 years, is that correct?

MR NHLAPO: That is correct.

MR MILLER: And you were convicted of the crimes of murder, robbery and possession of a firearm and ammunition?

MR NHLAPO: That is correct.

MR MILLER: And you are applying now for amnesty in respect of all these offences?

MR NHLAPO: That is correct.

MR MILLER: And the family of the victim, of the deceased are present today, do you have anything to say to them?

MR NHLAPO: I would like to apologise to them.

MR MILLER: I have no further questions, Chairperson. I ask that this affidavit which I believe you have copy of, be handed in as evidence.

NO FURTHER QUESTIONS BY MR MILLER

CHAIRPERSON: It is accepted as evidence.

MR MILLER: Thank you.

CHAIRPERSON: Ms Thabete?

MS THABETE: Thank you, Mr Chairperson. Mr Chairperson, I would like to put on record that I will be assisting the victims in this matter to lead their evidence. I would like to also put it on record that the father of the deceased is here, the brother is here, his wife is also here.

CHAIRPERSON: The deceased's wife?

MS THABETE: The deceased's wife, yes.

CROSS-EXAMINATION BY MS THABETE: Mr Nhlapo, when this incident occurred, where were you staying? Where were you residing?

MR NHLAPO: At Mandela squatter camp.

MS THABETE: Do you perhaps know why the court in its indictment have written that you used to live at Emdene township, in house number 1206 in Soweto?

MR NHLAPO: Yes, I know.

MS THABETE: Explain briefly why.

MR NHLAPO: At the time of my arrest the police wanted to know where I resided and I knew that if I took them to Mandela squatter camp where I resided, they would discover the other comrades that I was with and then I decided to refer them to Emdene 1206.

MS THABETE: Were you a member of the ANC when you lived at Mandela squatter camp?

MR NHLAPO: Yes, I was a follower of the ANC.

MS THABETE: Where you a member of the SDU?

MR NHLAPO: Yes, I was a member of the SDU.

MS THABETE: In which area was your SDU operating?

MR NHLAPO: We were operating at the squatter camp.

MS THABETE: So can you explain, did you operate in other areas as well or you operated only in Mandela squatter camp?

MR NHLAPO: We operated only at Mandela squatter camp and not in other areas.

MS THABETE: And your day to day activities as SDUs there, what did it involve?

MR NHLAPO: We were watching over the community, protecting it seeing that we were being attacked, that was our duty.

MS THABETE: Who used to attack you?

MR NHLAPO: People from the hostel.

MS THABETE: And when you were guarding against them from attacking you, how did you do this, how did you guard against them attacking you?

MR NHLAPO: We were guarding ourselves against being attacked and we would protect ourselves in the event of being attacked.

MS THABETE: Coming back to the incident at Albertina, what were you doing there?

MR NHLAPO: We wanted the police who were in possession of firearms, that we could rob them of their firearms.

MS THABETE: Were you looking specifically for policemen or were you looking for any people that you could get firearms from?

MR NHLAPO: Specifically we were looking for the police and the Security people.

MS THABETE: Did you know - oh sorry.

CHAIRPERSON: ...(indistinct) at paragraph 21 indicates that you were looking for anybody.

MR NHLAPO: Yes, that was true, but we specifically targeted the police and the security.

CHAIRPERSON: It doesn't make sense to me that. Why didn't you say that in your affidavit then?

MR NHLAPO: I think it was a mistake on my part to say anybody could have been a target, but specifically I must indicate that anyone in possession of a firearm could have been a target.

CHAIRPERSON: So what is the truth, what is the factual position?

MR NHLAPO: We wanted anybody in possession of a firearm.

CHAIRPERSON: Not necessarily policemen, anyone that was in possession of a firearm?

MR NHLAPO: Anybody in possession of a firearm. We wanted to accumulate firearms for ourselves.

CHAIRPERSON: So your affidavit is correct?

MR NHLAPO: That is correct.

MS THABETE: How did you target Mr Molaoa, that is the deceased?

MR NHLAPO: We were walking past and we saw this police vehicle parked and we saw these police sitting inside. There were two of them. We discussed amongst ourselves the fact that this a police vehicle and there are some policemen.

MS THABETE: Before I ask questions on what you've just said, I just want to back a bit. Did you know the deceased before seeing him that day?

MR NHLAPO: No, I didn't know him.

MS THABETE: So your evidence is that you identified because you saw a police vehicle, is that so?

MR NHLAPO: No, I didn't know the deceased, I only saw this police vehicle.

MS THABETE: Are you aware, Mr Nhlapo, that the deceased did not travel in a police vehicle that could be identified?

MR NHLAPO: He was using a police vehicle because I could see this police radio inside.

MS THABETE: Sorry, I'm a bit confused. Is it your evidence that this was not a police vehicle, but you just saw - can you just clarify there, why you thought this was a police vehicle?

MR NHLAPO: We walked past this vehicle and on walking past I saw this police radio and we concluded that the police must be sitting inside because the radio was the one that was used by the police.

MS THABETE: Sorry, I don't understand, what do you mean by the microphone?

MR NHLAPO: There are these microphones that are used by the police and on walking past this vehicle we saw this microphone inside the police vehicle.

MS THABETE: And then in your affidavit you say you approached the people who were in the vehicle, is that correct?

MR NHLAPO: Yes.

MS THABETE: How many were you?

MR NHLAPO: There were three of us, but the third one did not come nearer.

MS THABETE: Could he be seen by the people in the car or not?

MR NHLAPO: I cannot say.

MS THABETE: I'm asking you this question because it's my instructions that there were two of you and not three of you, would you say this is correct?

MR NHLAPO: There were three of us, they could not or they may not have seen the third person, but there were three of us.

MS THABETE: In your affidavit on page 4 you also stated that you ordered the policeman to hand over his firearm, is that correct?

MR NHLAPO: That is correct.

MS THABETE: Did you assume that the people who were sitting in the car were both policemen?

MR NHLAPO: Yes, I assumed so.

MS THABETE: And you say he refused to produce his firearm, is that your evidence?

INTERPRETER: May the question please be repeated.

MS THABETE: You say he refused to hand over his firearm, is that your evidence?

MR NHLAPO: Yes, that's correct.

MS THABETE: My question to you is, how did you know that he had a firearm with him?

MR NHLAPO: As I've explained, we saw this police radio in the vehicle and we saw these two people and we concluded that ...(intervention)

MS THABETE: Were these people in uniform, police uniform?

MR NHLAPO: No, they were not in police uniform.

MS THABETE: Mr Nhlapo, it's my instructions that when you approached the vehicle, you did not order or you did not demand a firearm. It is my instructions that you demanded the car keys, what is your response to that? Actually let me correct myself, it is my instructions that you were standing outside and the other guy you were with entered the car and demanded car keys, what is your response to that?

MR NHLAPO: On approaching these people, on approaching the vehicle, I stood on the passenger or next to the passenger door and my friend went around to the driver's door. That is when I produced a firearm and pointed it at one of them and after that I told the one who was sitting at the back not to move and at the same time told my friend to take the firearm after which he should take the keys of the vehicle so as to neutralise them.

MS THABETE: Sorry, let's take this step by step. Are you saying you did demand the car keys from them?

MR NHLAPO: My friend who was on the other side of the vehicle did take the keys. I told the other one not to move.

MS THABETE: So who demanded the firearms from them?

MR NHLAPO: My friend who was on the driver's door.

MS THABETE: So is it your evidence that he demanded firearms and the car keys?

MR NHLAPO: That is correct.

MS THABETE: Can you explain why you didn't put that in your affidavit, that he should hand over not only his firearm, but also the car keys?

MR NHLAPO: I indicated that I referred to the firearm, but my friend on the other side was the one who took the car key.

MS THABETE: Sorry, I just want to clarify this properly. You're saying your friend demanded the firearms and the car keys.

MR NHLAPO: Yes.

MS THABETE: You were standing outside?

MR NHLAPO: That is correct.

MS THABETE: You did not demand anything from them, it's your friend who demanded the car keys and the firearm?

MR NHLAPO: I pointed the firearm at these people and said the people should not move and my friend demanded the firearm and the car key.

MS THABETE: So my question still remains, why didn't you write the fact that you also demanded the car keys, in your affidavit?

MR NHLAPO: My legal representative did not ask me about that, but yes, that's what happened.

MS THABETE: It's also - you've written that the deceased lifted his firearm up and wanted to shoot you, is that correct?

MR NHLAPO: When I pointed it at him he resisted, he would not listen to me or obey what I was saying, then as soon as he lifted up his arm with the firearm I could hear that we were in danger.

MS THABETE: How did you see that he was going for his firearm if you were outside the car and he was inside the car?

MR NHLAPO: The car door was open and I could tell his movement.

MS THABETE: Where did he shift his arm to?

MR NHLAPO: He shifted his arm to where the firearm was.

MS THABETE: Whereabouts on his body would you say this was, was it near his hip, was it in front, was it at the back?

MR NHLAPO: On the side.

MS THABETE: When you say on the side, do you mean just above the hip? Would that be correct?

MR NHLAPO: On the waist, around his waist.

MS THABETE: Did you see the firearm, or you just assumed that he was reaching for his firearm?

MR NHLAPO: The firearm was on the other side, I could not tell because I was on the opposite direction, or rather the opposite side.

MS THABETE: Sorry, I didn't get that, what are you saying? Where was his firearm?

MR NHLAPO: On the waist, on his waist.

ADV SIGODI: Sorry, Ms Interpreter, are we getting the Zulu translation or the Xhosa translation? It's in, it could be the buttock or the waist.

INTERPRETER: Okay, let the witness clarify that.

ADV SIGODI: Could you indicate on your body where he got the firearm?

MR NHLAPO: May I demonstrate this, can I stand up?

INTERPRETER: Where the witness is pointing.

MS THABETE: Which side?

ADV SIGODI: The witness is pointing on his waist.

MS THABETE: Which side, on the right-hand side or on the left-hand side?

MR NHLAPO: On the right-hand side.

MS THABETE: It's also my instructions, Mr Nhlapo, that the deceased had his gun behind him, not on the side, what is your comment to that?

MR NHLAPO: That I would not repudiate, but I saw on the side. What I saw was happening on the side, not necessarily the back.

MS THABETE: It is also my instruction, Mr Nhlapo, that there was no stage where the deceased lifted up his firearm with an intention to shoot you as you have alleged in your affidavit. What is your comment on that?

MR NHLAPO: How would I have shot at him when he was not drawing out his gun?

MS THABETE: Mr Nhlapo, it's just been your evidence that you saw him moving his arm as if he was going to remove his firearm.

MR NHLAPO: Yes, that's my evidence.

MS THABETE: That's not what your affidavit says, your affidavit says:

&#9;&#9;"He however lifted up his firearm and it was clearly his intention to shoot me."

Those are two different things. So which version is the right one, did he act as if he was going to pull out his firearm, which according to you was on his waist, on the right-hand side, or did he lift his firearm up with a clear intention that he was going to shoot you? Which version is the right one?

MR NHLAPO: No, he did not lift up his firearm in his hand, but he acted as if he was drawing out or pulling out the gun.

CHAIRPERSON: So you didn't see his firearm?

MR NHLAPO: No.

CHAIRPERSON: Paragraph 25 of your affidavit reads as follows:

&#9;&#9;"I ordered the policeman to hand over his firearm, he refused to do this. He did however lift up his firearm and it was clearly his intention to shoot me."

MR NHLAPO: Yes, I understand that, but I did not say that as such, I said he did not lift up his firearm.

CHAIRPERSON: I'm going to adjourn for lunch, you can think about the following question as well. If you didn't see the firearm, how were you able to tell him that he should hand it over?

MR NHLAPO: I knew that he was a policeman.

CHAIRPERSON: We'll adjourn for lunch.

MS THABETE: Thank you.

INTERPRETER: Will the court please rise.

COMMITTEE ADJOURNS

ON RESUMPTION

THEMBA NHLAPO: (s.u.o.)

CROSS-EXAMINATION BY MS THABETE: (Cont)

&#9;Thank you, Mr Chairman, can I proceed?

&#9;Mr Nhlapo, it's my instructions that nobody ordered any handing over of a firearm, the guy you were with went into the car and demanded the car keys and you were standing outside of the car, what is your response to that?

MR NHLAPO: Yes, that is correct, this person went to the drivers seat and I was standing outside, yes that is correct.

MS THABETE: Are you going to respond to the issue of the order? - of the handing over of the keys and of the firearms.

MR NHLAPO: Would you please explain, I don't understand.

MS THABETE: You see, Mr Nhlapo, I've got a witness who is going to come and testify that he was there when this incident happened and the other guy you were with never ordered that they should hand over the firearms. There was nothing said about the firearms, all he said was that they must hand over the keys, what is your response to that?

MR NHLAPO: I heard him when I asked for a firearm from this person and I heard him referring to the keys as well.

MS THABETE: Can you please explain why did you shoot the deceased.

MR NHLAPO: The deceased was shot. When I noted that he was reaching for his firearm I saw myself as being in danger and then I fired a shot.

MS THABETE: Why didn't you run away when you saw him making a sign?

MR NHLAPO: I realised that I was already in danger, fleeing would not have made a difference.

MS THABETE: It's also my instructions, Mr Nhlapo, that you shot at the deceased because the guy you were with who was inside the car told you that they are refusing to give him the car keys, as a result you must shoot him. What is your response to that?

MR NHLAPO: He did not say they did not want to give me the car keys, he said this person is fighting and "shoot".

MS THABETE: So now is it your evidence that you shot him because the other guy told you that he's fighting, so you must shoot, or the reason is that because he was making a sign as if he wants to shoot you? Which one is the right reason, the correct reason for you to shoot him?

MR NHLAPO: Both, because I also noticed that he was reaching out for his firearm and my colleagues, my companion also indicated that this person was fighting and I was aware of that as well.

MS THABETE: Can you explain why you didn't say this in your affidavit, the fact that the friend told you to shoot because he was resisting?

MR NHLAPO: Yes, I can see it doesn't appear in the affidavit. This question never arose.

MS THABETE: Was it necessary to shoot the deceased?

MR NHLAPO: Yes, it was necessary for me to shoot him.

CHAIRPERSON: Why?

MR NHLAPO: Because I could see he was fighting and my friend also ordered that I should shoot.

MS THABETE: Where did you shoot him, whereabouts in his body did you shoot him?

MR NHLAPO: In the stomach.

MS THABETE: Mr Nhlapo, I've been instructed to also ask you that in your evidence earlier on you said that even though this was a private police car you thought that there were policemen inside because you saw a police microphone, do you remember that?

MR NHLAPO: Yes, I do recall that.

MS THABETE: My instructions are to ask you how, where was the microphone situated?

MR NHLAPO: It was hanging on the side of the window, inside.

MS THABETE: Mr Chair, can I be allowed to clarify this point with one of the victims please? 

MS THABETE: The microphone, where was it hanging?

CHAIRPERSON: He said it was hanging on the side of the window.

MS THABETE: On the side of the window. It's my instructions that it was under the dashboard and further - just hang on ...(intervention)

ADV SIGODI: Let's hear what he's got to say to that, that is was under the dashboard.

MS THABETE: Oh, okay, okay.

ADV SIGODI: What do you say to that Mr Nhlapo?

MR NHLAPO: ...(no English interpretation)

MS THABETE: Which window are you talking about, are you talking about the windscreen or the side window?

MR NHLAPO: I'm talking about the windscreen. This was sitting on the windscreen, or hanging against the windscreen.

MS THABETE: And where were you coming from?

MR NHLAPO: I was coming from the side of the door.

MS THABETE: From the side. From the front or from the back, going towards the front?

MR NHLAPO: On the side, I was coming from the side.

MS THABETE: No, what I'm asking is, from which direction were you, were you coming from the direction of the back of the car or were you coming from the direction of the front of the car when you saw this mike?

MR NHLAPO: I was coming towards the door on the side of the vehicle, that is when I noticed this microphone. I was on the side of the vehicle near the door.

MS THABETE: Well Mr Nhlapo, it's my instructions that there is no way you could have seen the microphone because it was under the dashboard, and further, this was a Hi-Ace, which is very, very high, you couldn't have seen this from walking on the side of the car. What is your response to that?

MR NHLAPO: No, this was visible. Yes, the radio is usually placed inside the dashboard, but you could see the microphone hanging.

MS THABETE: So by killing the deceased, how were you going to achieve your political objectives?

MR NHLAPO: The intention was not to kill the deceased, it was only by mistake that the deceased was killed. We wanted to get hold of his firearm. It was a mistake that he got shot.

CHAIRPERSON: What did you think was going to happen if you point a firearm at him and you discharge it? What did you think was going to happen?

MR NHLAPO: I just wanted to scare him off, but it so happened that he got shot by mistake. It was not my intention to shoot him.

CHAIRPERSON: Yes?

MS THABETE: And then when you had shot him, did you manage to take the firearm, which was your intention in the first place to take?

MR NHLAPO: No, we were not able to get hold of it.

MS THABETE: Why? You had come for the firearm, so why didn't you take it?

MR NHLAPO: Yes, we had come for the firearm. When this gunshot went off, it drew the attention of many people and we started running away after the person was shot and we therefore couldn't take the firearm.

MS THABETE: So what would be your political justification for having killed the deceased?

MR NHLAPO: We wanted a firearm from this person so that we could use it where we resided, use it against the people at the hostel.

MS THABETE: It's also my instructions, Mr Nhlapo, that finally, there was no political motive for your actions that day because you wanted to hijack the car, you never ordered the firearm, you ordered the car keys, or your friend ordered the car keys and not the firearms. What is your response to that?

MR NHLAPO: No, the intention was not hijack the car, we just wanted the firearm. We did not have an intention of hijacking the vehicle.

MR MILLER: Sorry, Chairperson, can I just point out that the witness was in fact acquitted on the count of hijacking the car. In court he was found guilty only of robbing the keys and not the vehicle.

CHAIRPERSON: And so?

MR MILLER: Well I'm just pointing that out, that that is what he was convicted of and that therefore it would seem that my learned friend's submission that he was intending to hijack the car has got no basis to it.

CHAIRPERSON: Does it follow? Why can't he be confronted with the proposition? We don't know why he was acquitted, maybe for lack of evidence, something that she may know now.

MR MILLER: Well maybe she knows something.

CHAIRPERSON: Proceed.

MS THABETE: Thank you. Would you like me to repeat the question for you, Mr Nhlapo?

MR NHLAPO: Yes, please.

MS THABETE: My instructions are that your motive that day was not political because your friend did not request the firearms that day, but he requested the car keys and therefore your motive was criminal, namely to hijack the car. What is your response to that?

MR NHLAPO: I dispute the argument that we wanted to hijack the car, but yes, I agree we wanted to rob the person of his firearm, it was not our intention to rob them of the vehicle. I must indicate that maybe the friend wanted the keys so that they should not be able to come after us after having robbed them of the firearm.

MS THABETE: Did you take the car keys?

MR NHLAPO: I wouldn't know because after the gun went off we ran away and each one of us fled to different directions.

MS THABETE: Did you personally take the car keys?

MR NHLAPO: As I've explained, I was not on the side of the driver's door, I was on the other side instead, so that when we ran away I cannot say whether he took the keys or not. I did not come to the side of the driver's door.

MS THABETE: It is also my instructions that this is not, you had no political motive and you didn't even know, you couldn't have known that these were policemen because the deceased and his brother did not travel in a police car, it was private car and also they were not in uniform, what is your response to that?

MR NHLAPO: Yes, they were not wearing a police uniform, I agree, but I am saying we went to them because we noticed this police radio in the vehicle and that's when we concluded that they are police. Yes, they were not wearing any police uniform.

MS THABETE: You have ...(intervention)

ADV SIGODI: Sorry. What made you sure that they were policemen, that the deceased was a policeman?

MR NHLAPO: As I have explained earlier ...(intervention)

ADV SIGODI: No, I've heard the explanation that you saw this microphone, now what I want to know, does the fact that there was a microphone per se, confirm that the person driving that particular vehicle is a policeman?

MR NHLAPO: Yes, that is correct.

ADV SIGODI: But you've just heard that this was a private car. What reasonable ...(intervention)

MR NHLAPO: Yes, as I have indicated it was a private vehicle but I indicated that we came to them and we started suspecting that they are the police.

ADV SIGODI: Did you know the deceased?

MR NHLAPO: No, I did not know him.

DR TSOTSI: Mr Nhlapo, did you see the gun in the policeman's possession?

MR NHLAPO: No, no, I did not see it.

DR TSOTSI: And did your companion see it?

MR NHLAPO: Yes, he did.

DR TSOTSI: Okay, now what was there to stop you from, or stop you or stop him from seizing the gun and running away with it? After all this is what you had gone there for, to get the gun.

MR NHLAPO: Our attempt to get the firearm failed because it was in a holster and a gunshot had also gone off at the same time and we ran away.

CHAIRPERSON: So you did see the firearm?

MR NHLAPO: Not personally because I was on the other side of the vehicle.

DR TSOTSI: You said you ran away because there were people who noticed that there was a gun shooting, shooting there?

MR NHLAPO: That is correct.

DR TSOTSI: Didn't it occur to you that if one seizes a gun from a policeman, that a shot might be fired?

MR NHLAPO: I do not quite get that question.

DR TSOTSI: The question is very simple. You went there to seize, to steal a gun, my question is, didn't it occur to you that in the process of stealing that gun there might be a shot fired?

MR NHLAPO: Yes, it did occur to me.

DR TSOTSI: And did you then decide that if a shot was fired, you would then run away and not take possession of the gun?

MR NHLAPO: The gunshot went off unexpectedly, so that when it did we got a fright and we ended up not taking the firearm that we had come for and we ran away.

DR TSOTSI: I don't understand what frightened you, what frightened you, was it the gunshot that frightened you or was it the fact that there were people around? What was it exactly that frightened you that made you run away?

MR NHLAPO: We were frightened by the gunshot and the fact that this had drawn the attention of the people who were now looking as this was happening.

DR TSOTSI: Now what was your fear about people looking on? You went there to steal a gun and a shot was fired and there were people around here, what was it that you feared about the people, that made you leave the gun instead of taking it away with you?

MR NHLAPO: We realised that these people might start screaming, shouting and calling other people, so we decided to run away.

DR TSOTSI: Did these people know you?

MR NHLAPO: You mean the people who were around there? I don't ...(intervention)

DR TSOTSI: Yes, the people around there, did they know you?

MR NHLAPO: No, they did not know us.

DR TSOTSI: Did you know them?

MR NHLAPO: Yes, there were some that I knew, security guards.

DR TSOTSI: Yes, who were these?

MR NHLAPO: Those were security guards who were just standing by.

DR TSOTSI: Where were they standing in relation to the car, to the policemen's car?

MR NHLAPO: They were quite a distance, not too far away. They were outside a certain firm, building.

DR TSOTSI: So what was it that you feared about them? Were they carrying firearms or did you fear they were going to shoot you or what was it exactly that you feared about them?

MR NHLAPO: Yes, they had firearms in their possession or with them.

DR TSOTSI: Did you see the firearms with them?

MR NHLAPO: They usually carry those firearms and I saw them.

DR TSOTSI: No, I'm not asking what they usually do, did you actually see the firearms that they were carrying?

MR NHLAPO: Yes, I did.

DR TSOTSI: Oh I see.

CHAIRPERSON: Why didn't you go and rob them then?

DR TSOTSI: Answer the question. Why didn't you rob them if you saw they were, that's what you were looking for, firearms, isn't it? Why didn't you rob them of them?

MR NHLAPO: See there were two of them standing there and we thought we were not going to manage to overcome them because they were both standing there.

CHAIRPERSON: But there were two in the car also.

MR NHLAPO: Yes, you see the difference is that they were sitting.

CHAIRPERSON: Ms Thabete, have you got anymore questions?

MS THABETE: Please Mr Chairperson, I do.

&#9;You stated that you did not see the gun of the deceased, but your friend saw the firearm, how do you know this?

INTERPRETER: May you please repeat the last part of your question, Ms Thabete.

CHAIRPERSON: Repeat your question.

MS THABETE: You say you did not see the firearm of the deceased, but your friend saw the firearm. My question is, how do you know that your friend saw the firearm?

MR NHLAPO: He shouted and said: "The person has a firearm with him".

MS THABETE: You know, Mr Nhlapo, I've got a problem, you seem to be introducing new evidence all the time and I'm not sure whether I should ask you why you didn't mention the fact that your friend told you that the deceased had a firearm, because firstly, in your affidavit you only stated that your friend ordered the deceased to hand over his firearm, then later on you introduced new evidence that no, it was a firearm and the car keys. - only after I've asked you about the car keys. 

&#9;I asked you about what you had written of the fact that he lifted his firearm up, again you changed that, you said no, he didn't lift up his firearm, but you saw him making a sign as if he was going to take up his firearm. Now I'm asking you, how do you know that he saw the firearm and you're saying: "He said so". Why didn't you put that down in your affidavit, why are you introducing new evidence now?

MR NHLAPO: You see what I've written in my affidavit is what I've been asked by my attorney.

MS THABETE: But it doesn't explain why you are introducing new evidence all the time, that you could have stated earlier on. It's important evidence.

MR NHLAPO: You see, in other things in relation to my attorney, he never asked me some other things and only if he did I would have answered and included such in my affidavit. So my attorney did not canvass such matters with me.

MS THABETE: My last question is - actually it's my second-last question, if you were there to take firearms or to take a firearm, why did your friend take the car keys instead and run away with them instead of taking the firearm, more especially because according to your evidence he had told you that he has seen the firearm? Why didn't he take the firearm, he had seen it, why did he take the car keys instead and run away with them?

MR NHLAPO: As I just explained, inasfar as that is concerned, that happened in such a way that as soon as we obtain the firearm then we will escape or run away. As I also had explained that when I pointed the firearm at him my friend went to take out the car keys and as he was rushing to where the firearm was, the deceased also did that and that's at that moment when he shouted and said: "He has a gun, he has a gun".

MS THABETE: So your friend didn't order the keys, he actually went to the ignition and took the keys by force, is that your evidence now?

MR NHLAPO: I just said that he took out the keys from the ignition, not ...(intervention)

MS THABETE: What I'm saying is, your earlier evidence was that he demanded the keys and the deceased refused to hand over the keys to him, is it now your evidence that actually he didn't demand the keys, he just went to the car and took the keys because he didn't want you to chase them? Is that your evidence now?

MR NHLAPO: I don't remember saying he demanded the keys, he just opened the door. I don't remember saying he demanded the keys.

MS THABETE: It's also in your affidavit, paragraph 25, page 24, and I asked you about it, you confirmed that: "Yes, they demanded the keys and the firearm."

That was your own evidence earlier on.

MR NHLAPO: No, please can you read that part with regards to the key, because he opened ...(intervention)

CHAIRPERSON: Will you accept if I tell you, you under oath said that your colleague asked for the keys?

MR NHLAPO: Yes, I did take an oath.

CHAIRPERSON: No, no, I'm asking you if you accept if I tell you that you did in fact testify that your colleague had demanded the keys of that motor vehicle. You say you forgot or you don't remember saying so, I'm telling you you did say so. It seems that you told your advocate as well because it's inserted in your affidavit as well.

MR NHLAPO: Well I do accept that now because you see, there are so many questions that have been bombarded my way and I get confused.

CHAIRPERSON: Well I believe there's one more coming.

MS THABETE: ...(indistinct) one more.

CHAIRPERSON: No more?

MS THABETE: One more. 

CHAIRPERSON: Okay.

MS THABETE: On paragraph 31 you say that you:

&#9;&#9;"(were convicted of robbery of the keys of the vehicle)"

And you say your intention was to rob the deceased of his firearm. Now my question is, are you applying for the robbery of the keys of the vehicle, or are you applying for amnesty for the robbery or attempted robbery of the firearm? Can you just clarify what you are applying for amnesty for and what you are denying?

MR NHLAPO: I'm here to apply for amnesty because I killed the deceased. This is why I am here, because I killed him and I'm seeking amnesty in respect of that.

MS THABETE: So you are not applying for the robbery of the keys of the vehicle, which you were convicted of, is that your evidence?

MR NHLAPO: No, I'm applying for amnesty for the killing.

MS THABETE: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Only? Only in respect of the killing?

MR NHLAPO: Yes, for the killing, that's all.

CHAIRPERSON: Ms Thabete, you're done?

MS THABETE: Yes, Mr Chair, I have no further questions.

CHAIRPERSON: Mr Miller, have you got any questions?

MR MILLER: No, no re-examination.

NO RE-EXAMINATION BY MR MILLER

CHAIRPERSON: Dr Tsotsi? 

DR TSOTSI: No, questions.

CHAIRPERSON: Adv Sigodi?

ADV SIGODI: No questions, Chairperson.

CHAIRPERSON: Tell me, one thing interests me here. You say the purpose of trying to rob the policeman of his firearm was that you needed to protect your home and you wanted a firearm to protect your house, did I understand you correctly?

MR NHLAPO: Yes, that's what I said.

CHAIRPERSON: Now were you working at the time?

MR NHLAPO: Yes, I was working.

CHAIRPERSON: What day did this incident take place?

MR NHLAPO: This took place on the 27th of August 1992.

CHAIRPERSON: What day of the week was that?

MR NHLAPO: I think it was on a Friday.

CHAIRPERSON: What time of day would this have taken place?

MR NHLAPO: At eleven.

CHAIRPERSON: In the morning?

MR NHLAPO: Yes.

CHAIRPERSON: Now the firearm you had, you say the police confiscated it when they arrested you?

MR NHLAPO: Yes.

CHAIRPERSON: Did they arrest you on the same day as this incident?

MR NHLAPO: Yes, on the same day of the incident.

CHAIRPERSON: How long had you had that firearm in your possession before the police confiscated it?

MR NHLAPO: I had a - it was about a week.

CHAIRPERSON: Was that your firearm?

MR NHLAPO: Yes.

CHAIRPERSON: So why did you need to rob somebody else of a firearm to protect your home when you had one?

MR NHLAPO: You see, we needed more guns because we only had one, insufficient in other words.

CHAIRPERSON: And your friend, was he staying there with you?

MR NHLAPO: Yes

CHAIRPERSON: And he had a gun?

MR NHLAPO: No, he did not, I had one, not him.

CHAIRPERSON: How many guns did you have at the house?

MR NHLAPO: In that shack we occupied, it was myself and one other companion of mine that had guns. In other words, we had two.

CHAIRPERSON: Yes, thank you, you're excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Miller, are there any other witnesses you'd like to call?

MR MILLER: No, no further witnesses, Chairperson.

CHAIRPERSON: Ms Thabete, are you going to call any witnesses?

MS THABETE: Yes, Mr Chair, I'm going to call Mr Andries Molaoa, the brother of the deceased.

CHAIRPERSON: You can call him.

MS THABETE: Can I please request the sound technicians to provide us with another mike, please.

CHAIRPERSON: There's one. What is the name?

MS THABETE: Could you give us your full names please?

MR MOLOA: Andries Moloa: M-O-L-O-A.

CHAIRPERSON: Mr Moloa, what language do you want to speak?

MR MOLOA: Southern Sesotho.

MS THABETE: Sorry Mr Chair, can I just correct the spelling, it's M-O-L-A-O-A.

CHAIRPERSON: Do you have any objections to taking the prescribed oath?

ANDRIES MOLAOA: (sworn states)

CHAIRPERSON: Be seated. Yes?

EXAMINATION BY MS THABETE: Mr Molaoa, what is your relationship to the deceased? 

MR MOLAOA: He is my brother, in fact my elder brother.

MS THABETE: Where did the deceased reside?

MR MOLAOA: He resided in Pimville, Zone 3.

MS THABETE: And did he work?

MR MOLAOA: At Kliptown Police Station.

MS THABETE: And how far is Kliptown from Albertina, where he was killed?

MR MOLAOA: It was quite far, it is in East Rand. Soweto is in West Rand.

CHAIRPERSON: Do you remember the day your brother died?

MR MOLAOA: Yes.

CHAIRPERSON: Were you present when he was killed?

MR MOLAOA: Yes, I was present.

CHAIRPERSON: Can you tell us what happened that day?

MR MOLAOA: Yes.

CHAIRPERSON: Please.

MR MOLAOA: Two people approached us whilst we were seated in the car. We had taken our father to a doctor. These two people approached us. The other one got into the car from the left-hand side and the other one went towards the driver's side, where he was seated. This one who was on the left-hand side managed to get into the car, then he demanded the car keys from the deceased. 

&#9;Then this other one who was on the passenger's side was pointing his firearm at the deceased, then he ordered Mr Nhlapo to shoot at the deceased. - this other one who was at the driver's side.

CHAIRPERSON: Was Mr Nhlapo in the van, because I don't follow?

MR MOLAOA: He was not in the car.

CHAIRPERSON: How many of them were there?

MR MOLAOA: It was the two of them.

CHAIRPERSON: Now who got into the car?

MR MOLAOA: This one who was accompanying Mr Nhlapo.

CHAIRPERSON: And Mr Nhlapo was at the driver's side?

MR MOLAOA: Yes.

CHAIRPERSON: Okay. And the one that was inside ordered Mr Nhlapo to shoot the deceased?

MR MOLAOA: Yes.

CHAIRPERSON: Okay, carry on.

MR MOLAOA: That is where Mr Nhlapo shot at the deceased.

MS THABETE: And then what happened when they shot him, what did they do after that?

MR MOLAOA: They ran away.

MS THABETE: Did they take the keys with them?

MR MOLAOA: Yes, they did.

MS THABETE: Who took the keys?

MR MOLAOA: This one who was in the car.

MS THABETE: Did your brother at some stage pull out his firearm, or made a sign as if he was pulling out his firearm?

MR MOLAOA: No, no, he never did that.

MS THABETE: So is it your evidence that he was shot because the other one said he must shoot him?

MR MOLAOA: Yes, that is correct.

MS THABETE: What were you doing in Alberton?

MR MOLAOA: We took our father to a doctor.

MS THABETE: You've heard the evidence of the applicant, he says that he identified you as policemen because there was a microphone in your car, was there a microphone in your car?

MR MOLAOA: Yes, there was.

MS THABETE: Where was it?

MR MOLAOA: It was underneath the dashboard.

CHAIRPERSON: Was it anything to do with that contraption hanging on the windscreen?

MR MOLAOA: Nothing of that nature.

CHAIRPERSON: Yes?

MS THABETE: I have no further questions.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Mr Miller, have you got any questions?

CROSS-EXAMINATION BY MR MILLER: Yes, Chairperson.

&#9;First of all, where did you father live, where was his home?

MR MOLAOA: His home was QwaQwa. He was here on duty.

MR MILLER: Now just hang on, you say "on duty", do you mean he was a policeman?

MR MOLAOA: No.

MR MILLER: So what duty are you talking about?

MR MOLAOA: He had broken limbs and my brother took him to a doctor.

MR MILLER: So while he was here in Johannesburg area, he surely stayed with you at Pimville, Zone 3?

MR MOLAOA: No, he didn't stay with us.

MR MILLER: Where did he stay?

MR MOLAOA: He stayed at work.

MR MILLER: Well where was his work?

MR MOLAOA: Sharpeville.

MR MILLER: Sharpeville, that's near Vereeniging.

MR MOLAOA: Rosherville.

MR MILLER: Rosherville. Is that on the East Rand?

MR MOLAOA: I'm not au fait with the fact that it's in East Rand or at what place it is situated.

MR MILLER: Okay well, you see the reason I'm asking you all these question is, you say you took your father to a doctor in Alberton, right?

MR MOLAOA: Yes, that is correct.

MR MILLER: No wasn't this doctor some very far distance from where your father was staying?

CHAIRPERSON: Is it in dispute that the incident occurred near Alberton?

MR MILLER: No, it's not.

CHAIRPERSON: So what are we squealing about?

MR MILLER: But what might be in dispute is possibly what exactly they were doing there and how they came to be there.

ADV SIGODI: Does it matter what they were doing there?

CHAIRPERSON: Does it matter what they were doing there? Your client says he shot the policeman there in Alberton.

MR MILLER: Well I'll leave it there then, Chairperson. &#9;Anyway, are you a policeman also?

MR MOLAOA: I am not a policeman.

MR MILLER: But the car you were driving in, it was a police vehicle wasn't it?

MR MOLAOA: The car that I was driving in was the one that was used by my brother.

MR MILLER: In the course of his official duties?

MR MOLAOA: That is correct.

ADV SIGODI: Sorry, on this issue of the car, was it his own private car or was it a car that he had been given at work?

MR MOLAOA: It was an official vehicle the he used during the course of his duties.

MR MILLER: And it had various police equipment in it, including a radio?

MR MOLAOA: I don't understand your question.

MR MILLER: It had a police radio inside it?

MR MOLAOA: That is correct.

MR MILLER: What colour was it, was it the usual yellow that the police were then using?

MR MOLAOA: It was white in colour.

MR MILLER: White with the blue stripes, as you now see the police cars?

MR MOLAOA: No.

CHAIRPERSON: Mr Miller, it is your client's case that this was an unmarked vehicle.

MR MILLER: Yes, that is correct.

CHAIRPERSON: I would imagine blue stripes would be regarded as marked, not so?

MR MILLER: I'll leave that question then.

&#9;Now this is some time ago, this happened in, when, in 1992, which is now very nearly seven years ago, right?

MR MOLAOA: That is correct.

MR MILLER: Do you still remember clearly what happened that day?

MR MOLAOA: I do not remember clearly what happened there on that day, there has been a number of years since this incident took place.

MR MILLER: So if I said to you that my client, Mr Nhlapo, was on the passenger's side - I understood you to say he was on the driver's side, have I got it right?

MR MOLAOA: He was on the driver's side.

MR MILLER: And if I said to you he was on the passenger's side?

MR MOLAOA: That won't be correct.

MR MILLER: Can you be sure of that after a period of nearly seven years?

MR MOLAOA: Yes.

MR MILLER: So, you said in your evidence that the person on the left-hand side got in the car, now that must have been my client, Mr Nhlapo, because the left side is the driver's side.

CHAIRPERSON: Well it depends on which way you're looking at the car, isn't it? If you're sitting in the car, the driver's side is on the right-hand side. If you're facing the car from the front, it is on the left.

MR MILLER: Well let's ask the witness, Chairperson.

&#9;When you say the left-hand side, which was are you looking at the car, from the front or from the back?

MR MOLAOA: From the back.

MR MILLER: Right, then I'm right, the left-hand side is the passenger's side. So you say the person on the left-hand side got into the car and demanded the keys, right?

MR MOLAOA: I do not understand your question.

MR MILLER: Well you say that the person on the passenger's side got in the car and demanded the keys.

MR MOLAOA: Yes, that is correct.

MR MILLER: Was it not the person on the driver's side?

MR MOLAOA: Who was demanding the keys?

MR MILLER: Yes.

MR MOLAOA: Yes, it was not the person on the driver's side who demanded the keys.

MR MILLER: Now wait a minute, you just told us one second ago that it was the person on the passenger's side, now you say it was the person on the driver's side, now which was it?

MS THABETE: Sorry Mr Chair, the witness said it was the person on the left-hand side and not the person on the right-hand side. That is how I heard it. Can the Interpreter maybe clarify it?

MR MOLAOA: That is what the witness said, as you say.

MR MILLER: Thank you. And tell me, my client's colleague, was he armed?

MR MOLAOA: I did not see whether he was armed or not.

MR MILLER: You see you say the person on the passenger's side, who according to you was not my client but his colleague, was pointing a firearm.

MR MOLAOA: It was Mr Nhlapo, not his colleague, his colleague was the one who got into the car.

MR MILLER: Did you not see a third person at all there?

MR MOLAOA: I never saw a third person.

MR MILLER: But you can't dispute the fact that there might have been a third person standing some distance away, keeping observation?

MR MOLAOA: I never saw the third person at all, I only saw two people.

MR MILLER: No, but listen to me. If I say that there was a third person, can you say that it's a lie?

MR MOLAOA: I say I only saw two people.

MR MILLER: Now is it not so that my client demanded from your later brother his firearm?

MR MOLAOA: That is not so.

MR MILLER: Well what I forgot to ask you was, was your brother in fact in possession of a firearm?

MR MOLAOA: He didn't have it in his hands, but he had it around somewhere in his body, but not on his hands.

MR MILLER: In his waist in a holster?

MR MOLAOA: That is correct.

MR MILLER: And you, were you armed?

MR MOLAOA: I was not armed at all.

MR MILLER: Well you've heard that the reason why this all happened, according to my client, is that they needed arms to defend themselves as the squatter camp, against the IFP, did you hear that?

MR MOLAOA: Yes, I've heard that.

MR MILLER: And that he was that day looking for firearms so that they could arm themselves over there.

MR MOLAOA: Yes, I've heard that.

MR MILLER: So did he not say anything to your brother about a firearm?

MR MOLAOA: He never made mention of a firearm at any stage.

MR MILLER: So what exactly was the reason that he shot your brother?

MS THABETE: Mr Chair, sorry, objection. How is he supposed to know?

CHAIRPERSON: Well did he say anything before or during the time he shot your brother?

MR MOLAOA: He never said anything to him.

CHAIRPERSON: Did he not ask for the keys?

MR MOLAOA: His colleague for the keys, not him.

MR MILLER: And were the keys handed to his colleague?

MR MOLAOA: Yes, he handed him the keys.

MR MILLER: So he didn't shoot him for not handing over the keys then?

CHAIRPERSON: What do you mean?

MR MILLER: Well he says that he handed him the keys, he didn't shoot him because he didn't want to hand over the keys.

MR MOLAOA: He handed him the keys, that I'm definitely sure of. Because I was sitting right behind him I saw him giving him the keys.

MR MILLER: So then my client is right when he says that the motive - well, let me ask you another thing before I get there, my client - well, did your brother do anything with his firearm, did he lift it up, did he point it?

MR MOLAOA: No, Sir.

MR MILLER: You mean to tell me a policeman who is being attacked, his motorcar keys are being robbed from he, who is armed, does nothing to reach for his arm, a trained policeman?

CHAIRPERSON: Did you brother do anything to indicate that he was armed, in your view?

MR MOLAOA: He did nothing other than giving them the car keys. He handed them the car keys with this right hand and he never showed any signs of trying to do anything else.

MR MILLER: How long was he in the force, how many years?

MR MOLAOA: I cannot clearly recall because it's been quite a long time now.

MR MILLER: Well was it more than five years?

MR MOLAOA: It might have been 10 years or so.

MR MILLER: So a policeman who has been in the force 10 years or so, and who is armed and who is robbed, does nothing with his firearm during the course of that robbery?

MR MOLAOA: Given the circumstances that prevailed at that time, he couldn't do anything, he hand no choice.

MR MILLER: Well we know that there was a police radio in the car, did he try and summon help?

MR MOLAOA: The person who got inside the car ripped the wire off, the wire of that microphone.

MR MILLER: So would my client then not be right when he says that the aim that day was to rob your brother of his firearm?

MR MOLAOA: That is incorrect.

MR MILLER: How can you say that, did he say anything to make you think otherwise?

MR MOLAOA: He never said anything to hint me.

MR MILLER: No, I'm not talking about hitting you, I'm saying, did he say anything ...(intervention)

INTERPRETER: He did not say "hit", he said "hinting", thank you.

MR MILLER: So therefore it's quite possible that he's telling the truth, that he wanted the firearm?

MR MOLAOA: He' telling a lie.

MR MILLER: How do you know, why do you say he's telling a lie.

MR MOLAOA: They ran off with the car keys and not the firearm.

MR MILLER: Yes, but that is what my client says, he says that after the shot they went away without the firearm, but their aim, their purpose was to get the firearm.

MR MOLAOA: Please explain your question.

MR MILLER: My client says he agrees with you that they ran away without the firearm, but he says that their purpose that day was to get the firearm.

MR MOLAOA: I cannot comment on that.

MR MILLER: So then why did you, why did you say earlier that he didn't want the firearm?

CHAIRPERSON: According to his evidence, the firearm was never requested.

MR MILLER: Yes, but he went further, when I asked him, when I put it to him that the aim that day was to get the firearm, he emphatically denied that that could be so.

CHAIRPERSON: I'm explaining to you why, because it wasn't asked. If you wanted something, wouldn't you ask for it?

MR MILLER: Well he might have wanted to get hold of it, take it out of the waistband.

CHAIRPERSON: Well proceed.

MR MILLER: Okay, now tell me, how do you feel about this whole incident?

MR MOLAOA: I've got nothing to say. I am just satisfied by the fact that he has been arrested. I cannot forgive him.

MR MILLER: And if it is so that he was committing a robbery to get hold of a firearm to protect himself in the ANC squatter camp against the IFP attacks from the hostel, would that make a difference to the way you feel?

MR MOLAOA: Please repeat your question.

MR MILLER: If it was so that he was trying to steal the firearm and that he was doing it to protect the people in the squatter camp against the IFP, would that change your feelings?

MR MOLAOA: I am not against the fact that he wanted the firearm to protect himself or the community, but he killed the deceased.

MR MILLER: So in other words what you are saying is he shouldn't get amnesty?

MR MOLAOA: He did nothing to me personally. He has killed the deceased, but this was the most hurting incident in my life, therefore I do not have any forgiveness for him.

MR MILLER: Well do you think he should get amnesty?

CHAIRPERSON: Mr Miller, whether he says yes or no, is not going to influence our decision, our job is to check whether the applicant has complied with the Act.

MR MILLER: As it pleases, Chairperson. You of course don't dispute my client's political affiliations, that he was a member of the ANC?

MR MILLER: Sorry, Mr Chair?

CHAIRPERSON: Do you know whether Mr Nhlapo was a member of the ANC or not?

MR MOLAOA: I'm not aware of that.

MR MILLER: Do you know whether he was part of the ANC's Self Defence Units?

MR MOLAOA: I do not believe that.

MR MILLER: Why not?

MR MOLAOA: Please repeat the question.

MR MILLER: Why do you not believe that he was part of the Self Defence Units?

MR MOLAOA: It is difficult to say because I do not know him that well.

MR MILLER: Okay, but you are aware that at this time when this incident happened, there was conflict between the ANC and the IFP, generally?

CHAIRPERSON: We, Mr Miller, have heard a number of matters such as this and we are aware of the conflict.

MR MILLER: As it pleases the Chair. Well I have no further questions then, Chairman.

NO FURTHER QUESTIONS BY MR MILLER

CHAIRPERSON: Ms Thabete, do you have any questions?

RE-EXAMINATION BY MS THABETE: Just one.

&#9;Whereabouts in his waist was the deceased's firearm, can you show us?

MR MOLAOA: Yes.

MS THABETE: Show us.

MR MOLAOA: It was on his waist at the back side, not on the sides.

MS THABETE: Could you see his firearm, was it visible?

MR MOLAOA: It was well hidden.

MS THABETE: You've heard the applicant's evidence, he says his friend saw the firearm, what is your comment to that?

MR MOLAOA: ...(no English interpretation)

MS THABETE: The applicant said in his evidence his friend saw the firearm of the deceased, what is your comment to that?

MR MOLAOA: He didn't see it.

MS THABETE: How do you know that?

MR MOLAOA: Mr Nhlapo's colleague entered from the left-hand side and the deceased was sitting on the driver's seat. Mr Nhlapo's colleague was on the left-hand side and the deceased was sitting on the right-hand side.

MS THABETE: Thank you, no further questions, Mr Chairman.

NO FURTHER QUESTIONS BY MS THABETE

CHAIRPERSON: Now I just want to get some information about the deceased's wife, what is her full name? I'm asking the witness.

MR MOLAOA: She is Maria Molaoa.

CHAIRPERSON: And her address?

MR MOLAOA: It's 3844 Pimville, Zone 4.

CHAIRPERSON: Did your brother have any children?

MR MOLAOA: Yes, he had children.

CHAIRPERSON: How many children?

MR MOLAOA: Four children.

CHAIRPERSON: Can you give me their names and ages?

MR MOLAOA: The first one is Johannes Molaoa and he was born in 1982. The second one is Tahaki Molaoa, born in 1986. The third one is Refilwe Molaoa.

CHAIRPERSON: Yes?

MR MOLAOA: I cannot recall when exactly was she born.

MS THABETE: ...(inaudible)

MR MOLAOA: Refilwe was born in 1991, and Rethabile, the last born, was born in 1992.

CHAIRPERSON: Is she also a female, that child?

MR MOLAOA: Yes, Sir.

CHAIRPERSON: And Tahaki?

MR MOLAOA: He's a male.

CHAIRPERSON: Tahaki is a male.

MR MOLAOA: Yes.

CHAIRPERSON: Yes, thank you, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Any other witnesses, Ms Thabete?

MR THABETE: No other witnesses, Mr Chairman.

CHAIRPERSON: Mr Miller, have you got any submissions to make?

MR MILLER IN ARGUMENT: Yes, Chairperson, I would ask that the Committee grant amnesty to the applicant in this case.

&#9;Chairperson, it's my submission that the offence committed was committed with a political motive. The political motive was protection of the inhabitants of the squatter camp ...(intervention)

CHAIRPERSON: How do you deal with your client's own evidence that it was an accident?

MR MILLER: His evidence, Chairperson, is that that day he intended to rob, that he went to this car because he saw it was a police car and he wanted to rob the policeman of his firearm. He did not intend to kill him. He admits that that is what happened. And if the question is whether he is guilty of murder or not, certainly he is ...(intervention)

CHAIRPERSON: Murder?

MR MILLER: On his own evidence - what he is saying, perhaps no, he didn't mean accident in the sense of negligence, what he meant was that it was something which was unplanned. It's like a bank robbery, where the robber may go into the bank and want to steal the money, they don't plan to shoot anyone, but it happens. It's exactly the same position.

CHAIRPERSON: Carry on.

MR MILLER: And Chairperson, that the - I said the political motive was to protect the inhabitants of the squatter camp against the rival political attacks by another organisation, namely the IFP. The police were regarded as legitimate targets, and there is no disputing the fact that the deceased was a policeman and that the vehicle was in fact ...(intervention)

CHAIRPERSON: But surely you're not submitting that he killed the policeman because he was a policeman?

MR MILLER: Well ...(intervention)

CHAIRPERSON: He killed him because he thought the policeman was going to shoot him.

MR MILLER: Yes, that ...(intervention)

CHAIRPERSON: And that brings me to the other issue, why did he kill him?

MR MILLER: He killed him, on the applicant's evidence, because he believed he was going to, he believed the deceased was going to kill him.

CHAIRPERSON: Ja, so, if you look at the Act, of what political enhancement was that, with what intention, political intention, was the policeman then shot?

MR MILLER: The political intention was to gain possession of a firearm in order to protect the inhabitants of the squatter camp.

CHAIRPERSON: But didn't he say that he shot him because he thought he was in danger? That's what he's got in the affidavit.

MR MILLER: Yes, but that would not be a defence in a murder trial. I mean it's the same as - let's take another example, let's say that a high-jacker approached someone while they stopped at a robot and he pulls out a firearm and he says: "Give me your car", and the driver of the car then says: "No, I'm not" and the driver then pulls out a firearm himself, and the hijacker because he thinks the driver is going to shoot him, shoots the driver. Now that can't be construed as any form of self-defence. And that's exactly the same as what happened here.

CHAIRPERSON: No, you missed a point. The Act says that any offence for which amnesty is applied for, must have been committed for the purposes of enhancing the political position of an organisation or a movement of some sort.

MR MILLER: Well the movement or organisation ...(intervention)

CHAIRPERSON: Now here we have the following facts, that the applicant didn't go out to shoot a policeman. He says:

&#9;&#9;"I shot the policeman because I thought he was going to produce a firearm and shoot at me."

Surely that can't be construed as shooting with the intention of enhancing a political position?

MR MILLER: Well the shooting occurred in a course of an attempted robbery of a firearm and that act, the robbery of the firearm, would have enhanced the political position of the inhabitants of the squatter camp, who were ANC members, and the Self Defence Units, and it was done at least with the blessing of the Self Defence Units in that particular camp.

CHAIRPERSON: That's pushing it, isn't it?

MR MILLER: Not at ...(intervention)

CHAIRPERSON: That's really extending the interpretation of the Act, that a fortuitous murder can fall under the umbrella of a political crime. What was his intention?

MR MILLER: His intention was to get a firearm.

CHAIRPERSON: His intention was to save himself, isn't it, from what he thought was a danger?

MR MILLER: Yes, but after he tried to get the firearm and things started to go wrong, he realised that, well then he decided to shoot the deceased.

CHAIRPERSON: Well why didn't he look for the firearm then? If the shooting was to facilitate this politically motivated crime of robbing in order to obtain a firearm.

MR MILLER: Well he said that people arrived at the scene, including some security guards who were armed.

CHAIRPERSON: Well he saw the security guards before, he knew they were there, he just didn't go there. They had two of them.

MR MILLER: No, I think what he's saying, Chairperson, is that he realised that the security guards, it was only at that stage that he realised that the security guards were paying any attention to what was going on, before that they'd just been, apparently, idly standing by, doing nothing.

CHAIRPERSON: Proceed.

MR MILLER: And as I say, it was committed in the, the murder was committed in the course of a robbery, that it would have, that the robbery, had it succeeded, would have enhanced the position of a political organisation, namely the ANC and the Self Defence Unit within that squatter camp, and that that would have been his political motive. 

&#9;It's my submission therefore, that there is a political motive and that the Committee should therefore grant him amnesty.

CHAIRPERSON: Well deal with this one too, Mr Miller. He says in his affidavit that he's applying for amnesty in respect of counts 1, 2, 4 and 5 of the indictment.

MR MILLER: Yes.

CHAIRPERSON: And it seems that those are the offences for which he was convicted. The one is the murder that we've just discussed.

MR MILLER: Yes.

CHAIRPERSON: The robbery is in respect of car keys. He himself says that that is not what he's applying for.

MR MILLER: Yes

CHAIRPERSON: And of course the other two is ...(intervention)

MR MILLER: Possession and ...(intervention)

CHAIRPERSON: Possession under the Firearms Act.

MR MILLER: Yes.

CHAIRPERSON: I've got no problem with that yet.

MR MILLER: Yes.

CHAIRPERSON: But what about the robbery?

MR MILLER: Well I didn't address you, Chairperson, on the robbery, for the reason that you've just mentioned that my client himself said ...(intervention)

CHAIRPERSON: Okay, I understand your position then. Let's leave that then. Should we find that the murder or that whole escapade was an activity not associated with any political motive, would the counts in respect of the offences related to the firearms, would the applicant then succeed on that application?

MR MILLER: Well I think that all the counts would fall within the same ambit, that they were all - if you accept my argument on the murder, that it was something that had been in the course of a politically motivated robbery, then the same argument I think, would apply to all the counts. And I can add this, it might be against what my client has said, but obviously if the Committee is so inclined, there has been no application for amnesty in regard of the robbery of the firearm and if the Committee is so inclined to grant amnesty, then I think maybe the Committee should consider that count also.

CHAIRPERSON: You may right, I'll have to think, we'll have to think about that, but it's a fair comment. Is there anything else you'd like to ...?

MR MILLER: Nothing further.

CHAIRPERSON: Ms Thabete, have you got any submissions?

MS THABETE IN ARGUMENT: Yes, Mr Chair.

&#9;Mr Chair, on behalf of the victims, I would argue that it is my submission that the applicant be refused amnesty on the basis, number one, that his act was not political and there was no political motive.

&#9;I would like the Committee, or I request the Committee to consider the evidence of the witness, the fact that according to his testimony, when the applicant and his friends approached them, they did not request for a firearm, they only requested the car keys. Somehow this was not mentioned by the applicant in his affidavit, he safely only mentioned the fact that they ordered a firearm. I would like to regard that, to consider that as well.

&#9;Further, Mr Chair and Honourable Members of the Committee, the applicant spoke about the fact that, or in his affidavit he states that the deceased lifted up his firearm with an intention to shoot at him. And it's been the evidence of the witness, which I would like the Committee to consider as the true evidence that the deceased did not lift any firearm. Actually the applicant also admits to the fact that the deceased never lifted up a firearm. 

&#9;It's also the evidence of the witness that the situation of the firearm on the deceased's body was not visible to anybody who would have been outside, more especially to the friend of the applicant who was seated at the left-hand side. And it appears that the firearm was not visible.

&#9;Further, Mr Chair, on the argument of the motive for having killed the deceased, I would like to argue that if the applicant says he had no intentions to kill, then we wouldn't be talking about murder here, we would talk about culpable homicide, because then he would be arguing that he was killed by mistake, it was negligent killing and that doesn't amount to murder, it amounts to culpable homicide.

&#9;It's my submission, Mr Chair, that the applicant's motive was criminal inasfar as the shooting of the deceased was concerned. Thank you, Mr Chair. I don't know whether you would like me to address you on any issue or aspect.

CHAIRPERSON: No, that's okay. We will take time to consider this decision and we will hand it down in due course. I see it is a quarter to four already, we've hardly got a chance to finish another witness. We'll adjourn to 9 o'clock tomorrow morning.

COMMITTEE ADJOURNS

