Amnesty Hearings — Umtata — 1999-02-02

CHAIRPERSON: No, it doesn't matter, he has confirmed it under oath.  I'm just trying to get a copy of it for our convenience and I suppose for the other side.

MR MALAN: I was under the impression that you were in possession of it.

CHAIRPERSON: Yes, very well we can arrange to get copies for everybody of that document.

MR MALAN: Thank you.

CHAIRPERSON: Yes thank you.

MR MALAN: Mr Tyani, is the name Spambo, do you recall anything regarding such a name?

ALAN TYANI: What I can remember, W/O Spambo as a head was a captain.  It would happen sometimes that I would be involved in some operations where he would be in charge.

JUDGE MILLER: Sorry, you've just said that W/O Spambo was a captain?

ALAN TYANI: At the time he was a warrant officer.

JUDGE MILLER: A warrant officer?  Sorry, Mr Tyani, were you stationed at Butterworth at that time in 1988?

ALAN TYANI: Yes from 1981 after two policemen were killed in Tjuba.

JUDGE MILLER: And were you also in the same unit as Mr Gumengu, the so-called anti-terrorist unit or were you just with the Security Branch?

ALAN TYANI: I was with the Security Branch, we would differ with some assignments.  I would meet with Mr Gumengu because he was also trained as an inspector of explosives but with the duties of terrorism we wouldn't meet there though it would happen sometimes if he was in Butterworth I would go with him.

MR MALAN: You stated that you also received instructions to the effect to either arrest or kill Mr Zokwe and those orders came from Capt Mfazwe, is that correct?

ALAN TYANI: Yes that is correct.

MR MALAN: It was similar or identical orders that Mr Gumengu received.  Were you aware of these orders as well?

ALAN TYANI: When it comes to the fact that Gumengu was instructed not to arrest but to kill, I know nothing about that.  All I knew was that since this person was a threat to us and it was also apparent that he had some weapons of which some of them were buried in Bophuthatswana on a farm and it was also apparent that he had five handgrenades.

MR MALAN: But the question is were you aware that Mr Gumengu and you had similar instructions specifically to kill the deceased?

ALAN TYANI: No, our instructions were not the same.  My instructions were that if I found myself in a situation whereby I had to protect myself or the people in my company, I had to do that but not to kill.  That would depend on him if perhaps there was resistance or something else.

MR MALAN: Mr Tyani, it seems to me there's a little contradiction in terms - we've just read out to the Committee a statement that we prepared, if I'm wrong please correct me, but it clearly said that you received instructions to either arrest or kill him and you confirmed that?

ALAN TYANI: Yes.

MR MAPOMA: Chairperson, I sorry to interrupt at this stage.  I wish to bring some point regarding this document which has just been read before the Committee.  That judgment is not signed by the applicant as an affidavit under oath before it got to be read before the Committee.  It's just a document which has been prepared by Mr Malan and has been read to the Committee.  It does not have anything which proves that the applicant did have sight of the document and abides by the contents contained therein prior to it having been read to the Committee.  I just want to bring that to light.

CHAIRPERSON: Yes, I had thought that it would be approachable on a slightly different basis and as part of his evidence, really because he has confirmed that under oath, he's giving evidence, he's giving viva voce evidence under oath now and although perhaps it's a bit unconventional to lead a witness in that fashion in these proceedings, it's normally not a great difficulty.  So to my mind what has happened was really, you know, that was incorporated into his evidence-in-chief and he has confirmed that under oath so we're not so much concerned about the document, we're concerned about his evidence here confirming it.  I've asked for a copy of the document simply for our convenience because we couldn't write down word for word what was confirmed by the applicant so that's really why I asked for a copy of it, just for our convenience but otherwise I mean the document itself would have very little, if any, probative value you know, it's simply just a matter of our convenience.  So as of now we must treat that as part of our testimony, whatever was read out to him which he confirmed.

MR MAPOMA: Thank you Chairperson, I understand.

CHAIRPERSON: Yes, Mr Malan?

MR MALAN: Thank you Chairperson.
	We have testified indeed to the fact that you had direct orders to either arrest or kill him and sounds - not like it was in the event if your life was endangered, it sounds like an order to eliminate the deceased, is that correct?

ALAN TYANI: Yes that is correct.

MR MALAN: How did you intend to eliminate Mr Zokwe.

ALAN TYANI: I was going to do this in such a way that I would go and get the firearms that he claimed to have and from there he would be taken to the office and be charged and be taken to court.  But if we do go to the house that he pointed out and find out that there were friends waiting there for us, his friends, therefore we had to protect ourselves even if he would do anything that would place our lives in danger.  We had to protect ourselves therefore he would also perhaps die in the process.  That is why Mr Mglashwe instructed us to go and arrest him but if the situation takes us, pushes us to a point whereby we had to kill him, we had to do that.  We had to protect ourselves and it was also possible that he will die in the process when we were protecting ourselves.

CHAIRPERSON: Yes, yes thank you, just a minute.  Mr Malan, is the section of this document that you read out and that was confirmed under oath, is that paragraph 5?

MR MALAN: Let me just - yes, yes.

CHAIRPERSON: Yes and it says was the section that you read out up to "I beg their forgiveness"?

MR MALAN: That's correct, Chairperson, the annexure in handwriting that I refer to the other paragraph is contained to a certain extent in this document and you already testified to the effect of that document so I see no need to ...(intervention)

CHAIRPERSON: Yes, so what he's done he has confirmed in his testimony the ...(intervention)

MR MALAN: Contents of this ...(intervention)

CHAIRPERSON: Paragraph 5, save for the last paragraph of that paragraph number 5?

MR MALAN: Correct.

CHAIRPERSON: Yes, well as I've indicated we are receiving this simply just as a convenient record of the testimony of the applicant and we will mark this as Exhibit A.

MR MALAN: If I could just once again inform the Committee that I was under the impression that you indeed had copies of this, I faxed it through to the Cape Town office and I confirmed it telephonically with Mr Zuko that I've done so but I didn't confirm that you received it so I accept that fact.

CHAIRPERSON: Yes we note that Mr Malan.  Often there are some crossed lines as we go along but thank you, this helps us.

MR MALAN: Mr Tyani, it seems to be counter-productive for the same person to give similar or the same orders to two different people that they don't even know, that they are going to execute the same job, do you agree with that?  To be direct, Capt Mfazwe gave Gumengu the instructions to either kill or arrest him and he gave you the same and you didn't even know that you were dealing with the same orders?  Was that normal?

ALAN TYANI: That depends on the situation but I think what makes what is causing some contradiction it's possible that since Gumengu was busy with terrorism duties, when we left on that particular day he gave same instructions to kill him if possible.  I think even Gumengu himself was given other instructions that I wouldn't like to associate myself with because I was not present.