Amnesty Hearings — East London — 1999-03-25

CHAIRPERSON: It appears that Mr Mjale, T N Mjale also suffered injuries in the course of the attack, the burning sensation in his arm and damage to his face caused by broken glass.  We have evidence before us as to any permanent injuries sustained by him, but in the event of there having been any he would properly be classified as a victim and we accordingly refer him to the Committee for them to investigate the question fully.
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UNKNOWN: Thank you, Chairperson.
	Chairperson, I would not detain you on this one. I would take any questions suffice to say that I will add just a few things.
	My argument, because these incidents are similar which we heard today, will be the same which I used before in the case of Makuala and Dolo.  I still want to use the same argument.  So my argument is on all fours with the one I used there, with the exception of that in this one I would like to add that for the first time in the hearing we had one which the man who has been always in the forefront referred to, that he gave approval, was actively involved in this one, Letklapa Mpahlele.

CHAIRPERSON: He in fact gave the command to shoot, didn't he?

MR MBANDAZAYO: Exactly, Chairperson.

CHAIRPERSON: And he also shot him.

MR MBANDAZAYO: Exactly, Chairperson, he was there, he commanded this time, he did not even give an order from there, ask approval, approved the operation.  He was there personally and he personally commanded and he personally executed the ...

CHAIRPERSON: I think we have had abundant evidence at various hearings of the higher office that he had.

MR MBANDAZAYO: Yes.

CHAIRPERSON: I think we've had abundant evidence that he held high office in APLA.

MR MBANDAZAYO: Chairperson, I wanted just to add that aspect on this one, that the man always referred to this time was personally involved in this incident.  And that, Chairperson, it is therefore my humble submission that Luyanda Gqomfa be granted amnesty.  Thank you, Chairperson, unless there are questions which the Committee would like to pose.

MR LAX: Mr Mbandazayo, just in this regard I'm pretty sure Mr Prior will raise this so you may as well just address it now so that he can then reply to it later, the question of gravity and proportionality will come up again in relation to the killing of Mr Smit.

MR MBANDAZAYO: Chairperson, exactly.  I think I will advance that argument.  I won't have any qualms if Mr Letklapa was an applicant here, he was present also, he made submissions.  I won't advance any argument because he was a policy-maker, definitely a top man.  Then I wouldn't have any qualms when you talk about proportionality when it comes to him because definitely he was a decision-maker, he was not (sic) part and parcel of the decision-making in the APLA as person who was having high office and given that responsibility to direct operations.  So definitely he was there - when it comes to him.
	But when it comes to Luyanda Gqomfa was a foot-soldier and he was commanded by him, instructed him to do that.  I would definitely, Chairperson, also advance the same argument that when it comes to him at least the proportionality and the question of gravity should not be applied.

ADV SANDI: I thought I heard you saying, Mr Happy Letklapa was part of the policy-making.

MR MBANDAZAYO: Yes, Chairperson, what I'm trying to say is a person if he is a policy-maker, if he is a member of the High Command, he was a director of operations, they were decision-makers.

ADV SANDI: Was it not the Military Commission that was charged with the task of formulating the policy, according to the one of the applicants who testified?  I think that was Mr Xundu.

MR MBANDAZAYO: Yes, Chairperson, the member, it was a Military Commission which included members of the High Command of APLA.

ADV SANDI: I thought the High Command was charged with the task of implementing that policy which was formulated by military council.

MR MBANDAZAYO: Yes, Chairperson, exactly, that is correct what you are saying, it's correct.  But what I am saying is that there were these structures, there was a High Command but some of the members of the High Command which were having certain positions, like for instance if we take the Defence Secretary who was a member also of High Command, was also a member of the Military Commission.  It's the same with the question of when it comes to Director of Operations because he's the man whose always charged, he should be there.

ADV SANDI: Ja, that can be so, but as I understand the situation here, the High Command as a structure was not per se formulating the policy.

MR MBANDAZAYO: Yes, I agree with you there.  What I'm trying to say is that they were represented.  It's just like - if I may make an example, like if you take for instance in a university where you have, in a university where, if you take the senate where you have members, heads of the department, professors and all the like, they are there, a part of it, not all, everybody, though some are having a higher position.  It's just when you come to the council of the university you have the rector there, you have certain members of the administrative structure of the university, part of the council which is a policy-maker of the university, but they have their own separate structure which has nothing to do with the Military Commission, which is the High Command.

ADV SANDI: In the Military Commission you had the likes of Mr John Mlambo, not so?

MR MBANDAZAYO: Yes, you have Johnson Mlambo, you had Johnson Mlambo who was the Chairman of the then Central Committee.

CHAIRPERSON: ... suggestion was there not by Mr Gqomfa, that he thought these people were military trained?

MR MBANDAZAYO: Thank you, Chairperson.  Yes, I think it was also confirmed by one of the witnesses who even said that he was trained and that he even that it would have been a different ball-game if they had weapons.

CHAIRPERSON: Well he went on to say that Mr Fransen - "as the shots were firing I was just rolling and going off like we were trained to do in the army"
So he have legitimately have come to the conclusion from ...(indistinct) - these were trained soldiers.  He could have come to the conclusion from observing them as they ran that they were trained soldiers.

MR MBANDAZAYO: Yes, Chairperson, that's what he told the Committee, that the way they rolled when they were shooting he could see that these people were trained and then it was confirmed by Mr Fransen that that was indeed the case.

MR LAX: Of course that may well be so, but that was not knowledge they had at the time they attacked them.

MR MBANDAZAYO: I think, Chairperson through you, it was a general knowledge they had that they have that notion that all white males, white people were trained militarily since they have that notion that it's militarised.

MR LAX: With the greatest of respect, Mr Mbandazayo, they had this notion that it applied to all white people, from a small age onwards.  Of course that was a very erroneous notion, but some white males were trained in fact.  And we'll leave that as ...(intervention)

CHAIRPERSON: Well he in fact was completely honest about this when it was endeavoured to suggest to him that he had been told that they had been military trained, he so "no".  And at page 89 he says
"I'm saying that before I did not know that they were trained, but at the time we were shooting ..."
That's when he came to ...
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MR MBANDAZAYO: That's all from my side, Chairperson.

CHAIRPERSON: Mr Prior?

UNKNOWN: Thank you, Mr Chairman.
	Mr Chairman, it would be fallacious to argue that because he came to a conclusion when people were trying to save their lives, that they were military trained, hence justifying the ...(intervention)

CHAIRPERSON: He was ordered by his commander whom he knew to hold high rank to do it.