Amnesty Hearings — Johannesburg — 1997-04-09

JUDGE WILSON: Mr Black, were you made aware of the fact that Mr Kleynhans had a copy of the record, or that he was asked about the record?

MR BLACK: No, after the perusal of the application, throughout this application there was reference made to the record.  There are references made to pages of the record.

JUDGE WILSON: Yes.

MR BLACK: I have immediately I had a number of discussions on this matter with Mr Currin's assistant, and she informed
me that he has a copy, complete set of the record. I was asking for copies of that record.  They were never made available to me and I was at one stage told to get hold of Mr Kleynhans, who was away at that stage. He was away on Easter vacation and I enquired from the indemnity offices and the correctional services people if they have any copy of a complete record.  What they have in their possession, according to me, is what is contained in the bundle of documents which is before the Court.  There is no complete court record available.

JUDGE WILSON: Have you been informed that it is important to make contact with Mr Kleynhans and enquire about records he has, in all applications, all cases where there have been applications for indemnity?

MR BLACK: Yes, we had ...(intervention)

JUDGE WILSON: Because this is a matter that Mr De Jager and I raised a considerable time ago, after we had visited and seen the records there available, that this should be done in every case.

MR BLACK: Well, in this case the indemnity record, as the Committee will notice, is contained in the bundle before the Court.  That is all that was forwarded to us. The applications for indemnity and the reasons for refusal.   That is the correspondence contained in the court - in the file.

JUDGE WILSON: What page is this, the application is made for a copy of the record if available?

MR BLACK: I will have to look at the original files, but as my - as the assistant to Mr Currin says, that application was dealt with by another member of the - before I came to join the Commission.

JUDGE WILSON: This is what worries me. I feel, and I am sure the other members of the Committee agree with me, that as a matter of course application should be made to obtain copies of the complete indemnity records, if they are available, and it is clear from this application that a copy of the record was - that there was a record and there was references made, volume 1, page 58; volume 1, page 663, and so it goes on.

MR BLACK: That is so.  Mr Chairman, we - our section, the amnesty section must have applied because a record was or a file rather, was used, furnished to us by the indemnity people.  That has enabled us to compile this bundle.  But on reading the amended or the annexure submitted by Mr Currin, to which he is referring to court records, or volumes of the court record, I immediately, when I read that, telephonically I was in touch and in contact with Mrs McBride and she said she would convey this to Mr Currin, and get a copy - make available to us a copy of the court record.

JUDGE WILSON: What worries me is the lack of the contact with Mr Kleynhans and the records, official records that are already in possession - they were in possession of the indemnity committee.

MR BLACK: Mr Kleynhans must ...

JUDGE WILSON: And we are told now that he has a copy of the record.

MR BLACK: Well, not according to our - the notes as a result with enquiries made with Mr Kleynhans by us.  Mr Kleynhans' office furnished us with a complete file which they had in their possession.

MR CURRIN: Thank you, Mr Chairman.  In the trial when you
testified, there was no evidence by you or any of your co-accused about having met a member of the security forces at the entrance to the shebeen or any evidence about the discussion you had with Hendrik or any reference to your view, your belief that Hendrik was an informer.  Could you please explain the fact that none of this was mentioned during the trial and you are raising it now in public for the first time?

PHINEAS NDLOVU: For starters, I should mention that the very same people as I have indicated that it is the security branch, is the very same people who arrested us, and you wouldn't dare say something that would offend them.  As it would appear in the record, we were assaulted, even though we had suffered burn wounds, we were assaulted and we had to say what would not put us in danger.  But as in during the trial proceedings, the regime had made it very clear, that anyone who is found guilty of any crime that relates to arson, necklace, all those acts that they were rendering barbaric, horrendous or whatever term that they used at the time, would ultimately get the maximum sentence, of which is the death penalty.  That sobered us, that we need to do something drastically, because there would be no extenuating circumstances as the then head of this country, Mr P W Botha had indicated, that he will come down on us very hard.  That in itself made us aware that we didn't - we were prepared to be martyrs of the struggle, but should there be any alternative that we could survive whatever onslaught or attack from the enemy, then surely we had to use it.  That is why we resorted in trying to come up with something that would create extenuating circumstances.

MR CURRIN: In the - would it be correct to say that what
you have said, that you went out of your way to depoliticise the incident?

PHINEAS NDLOVU: Yes, it was that it had to be done.  We even came to an agreement that even our other comrades who were at the time minors, the State afforded them the services of a social worker and we warned them strongly that that should not suffice at any cost, but it is unfortunate that during the deliberations by Justice De Klerk, when we were sentenced, it then came out that they had in fact given us out.  Because we believed, as we have told them, that any mention of that would ultimately qualify us for that.

MR CURRIN: Any mention of what?

PHINEAS NDLOVU: Of the fact that this was a political issue and that what we were doing was executing orders that have been given to us through the underground structures, of reeding informers, stooges and collaborators of the State out of our communities.  But unfortunately this did surface on the report of the social worker that was rendered to do this.  And it created a division amongst us.  Because when we had already been sentenced, we could not speak or see each other eye to eye as comrades.  For the mere fact that that has been mentioned and we had come to an agreement that it should not be so.

MR CURRIN: In your evidence and in the evidence at the trial, the question of alcohol was raised, and you and others admitted or said that you had consumed, if I remember correctly, half a dozen bottles of quart and a bottle of Mainstay Caine, prior to going to the shebeen.  Is that correct?

PHINEAS NDLOVU: Yes, that was mentioned in the trial, and as I have just indicated before, those were means to get us off
the sentence that was hanging above our shoulders and we decided that in most cases that we have read through papers, heard from the news, we had heard and we had heard and we had realised that in most of the cases, when people pleaded insanity or pleaded that they were under the influence of drugs, what-have-you, liquor, et cetera, some kind of leniency was being shown that they were not responsible for their actions, and that ultimately would help us create extenuating circumstances that would get us off the death sentence.

MR CURRIN: You had five co-accused.  There were six of you that were involved in this incident, is that correct?

PHINEAS NDLOVU: Yes, that is correct.

MR CURRIN: Do you know on what basis four of you were released early?  Released, certainly a considerable time ago.