NORMAN ARENDSE
Well, that is a valid distinction to draw.  The point I want to make is that if one has regard to Section 20(2), no such distinction is made between what you can call statutory forces and non-statutory forces - you are either employed by the State or you were a member of a liberation army.
	Yes, I would agree if the point that Judge Wilson wants to make, you can also have a situation where a member of APLA for example had gone off on a frolic of his own, then yes, the same principle would apply where you have a member of the statuary forces - of the ex-security forces, also having committed an act or a deed and that act or deed was not - however morally reprehensible it was, it wasn't sanctioned by the High Command, then that should also be looked at on the same footing.
	Now, unless - and there's no evidence before this Committee, unless it can be shown of course that these three young applicants were doing their own thing and that they were not commanded or ordered by the APLA High Command to do what they did, then of course it's a different matter.
	My submission is that is quite clear that the orders that they carried out, were from the APLA High Command, they were clearly not - and the trial court also found, they were clearly not doing what they did for personal gain or had any personal motive for doing what they did.
	If I may proceed Mr Chairman, paragraph C on page 20:
The attack on the tavern - ...[indistinct] it mistakenly, was carried out in order to further the political objectives of APLA, namely to win the land back for the oppressed Black masses of this country before May 1994.  As found by the trial court, none of the applicants made any personal gain out of these attacks and had any personal motive for committing the offences.
	And most importantly Mr Chairman, the applicants have disclosed to this Committee that they were responsible for causing the death and the carnage which occurred on that fateful night of the 30th of December 1993.  The applicants admitted that they were members of a group of six APLA operatives who attacked the tavern that night.  Gqomfa was commander of the unit and he and Jantjie had initially launched by shooting through the double-doors of the tavern and through the windows of the tavern, armed with R4 rifles and an AK47 machine gun.  I'll deal with this aspect of the AK47.
	Madasi was supposed to have launched a rifle grenade by entering the side door of the tavern, Mabala was to throw a grenade and Sebeko - who is not before this Committee, was a look-out and Matebo was the driver.  
	What in fact happened however, was that after Gqomfa and Jantjie had launched the attack by shooting through the tavern's double-doors and windows, Madasi had entered the side door with an R4 rifle and a rifle grenade.  He however saw some movement which to his mind would endanger Gqomfa and Jantjie and instead of doing what he was supposed to, he opened fire with his R4 rifle and in the process shot and killed - he probably killed the three people inside because he was closest to them - I recall we were talking about distances of 4/5 metres from where he would have been, and that shot and killed Lindy-Ann Fourie, Rolando Palm and Bernadette Langford.
	Indeed Madasi had finished a magazine of 35 bullets and upon withdrawing, had fired another 11 bullets from the magazine after he had unsuccessfully launched the rifle grenade - the rifle grenade itself did not explode.  Between Gqomfa and Jantjie, they had fired a further 48 rounds of ammunition while firing from outside the tavern.  Mabala had not thrown the grenade as he was supposed to do, claiming that if he did so he would have killed his comrades.  Sebeko appears to have fired at the buildings across the street - that's the Club Planet or something like that.  Makebo was at all times sitting at the driver's seat.
	After getting into the car and driving away, Gqomfa alleges that Mr Jose Cerqueira had come out Machados Restaurant - which is on the corner of Station Road and Lower Main Road Observatory, armed with a gun and that it appeared that Cerqueira was firing shots in his direction whereupon he shot Cerqueira with his AK47 rifle.
	This version i.e., that Cerqueira had initially been alone appears to be supported by the evidence given during the criminal trial by John Jacobs - John Jacobs Mr Chairman was a or is probably still an employee of the City Council, he was in the truck and they had approached the corner of Lower Main Road and Station Road just at the time that Mr Cerqueira had emerged from Machados and he had then also seen the attackers inside this vehicle.
	And I also submit that it is substantiated by Madasi and Mabala who also claimed to have heard shots coming from the vicinity of Machados restaurant.  After the applicants left the scene, the car was abandoned by Makebo and Madasi in Guguletu.  The car itself was not damaged, which lends credence to the view that the applicant was - as the Judge put it in the criminal trial:
"No an ordinary gang of robbers"
	Thereafter the applicants split up into pairs and went their separate ways.  In fact Madasi and Mabala were arrested together at Elliot in the Transkei on the 4th of January 1994 while they were together on a bus.  Gqomfa was arrested on the 14th of July 1994.
	Mr Chairman, it remains for me to deal with a few of the more controversial aspects with relate to full disclosure of the relevant facts requirement, firstly the issue of the order.  It is submitted that it cannot be disputed that the applicants were under orders to carry out the attack on the Heidelberg Tavern.  The order emanated from the APLA High Command which comprised Mpashlela who is the Director or Operations, Xuma the Deputy Director of Operations and Nonuba who is a senior member of the High Command - Nonuba is also now deceased. 
	They planned, directed and conceived of the idea that the Heidelberg Tavern be attacked because according to their information, it was a place frequented by members of the security forces.  Nonuba had given the order directly to Gqomfa before the 13th of November 1993, as the commander of the unit and on 30th December 1993, Gqomfa had ordered Madasi, Mabala and the other members of the group to attack the tavern.
	It is clear from the evidence that APLA soldiers do not question orders given to them by the unit commanders or by the APLA High Command.  In fact when one thinks of it - like in the St James matter, these operatives - except for the unit commander, hardly have any time to question these orders, they are told virtually on their way to a particular target, that this what you're going to do.
	Then the attack on the tavern itself.  A witness had - during the criminal trial, testified that she had seen two men inside the tavern that night wearing balaclavas, one shorter than the other.  This witness was not called to give evidence before this Committee.  Now we know that only a cap was found subsequently in the abandoned Opel Record and that no balaclavas were found in the car or in the black bags that were subsequently dug up.
	The applicants deny that there were two attackers inside the tavern.  Madasi disclosed that he was the only attacker inside the tavern and that he used an R4 rifle to "Protect" his comrades.  In this regard Madasi had deviated from his original instructions to launch the rifle grenade only.  
	He did say in his evidence - which cannot be disputed with respect, that as a soldier he is allowed some "Flexibility" when it come to "Protecting his comrades".  He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades - Mr Chairman, bearing in mind that they are told that this is a place frequented by the security forces - we now know obviously that that was wrong information.
	He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades.  He then used his initiative to open fire with his R4 rifle.  The fact that some 46 R4 cartridges were found inside the tavern, testifies to the fact that Madasi had been inside the tavern armed with an R4 rifle.  He had fired indiscriminately at those inside the tavern, aiming to kill as many people as possible.  
	It is clear - it is submitted, from the photographs which is Exhibit A, that shots were also fired through the double-doors of the tavern and the windows of the tavern, these shots were fired by Jantjie and Gqomfa - 48 R4 cartridges were picked up outside the tavern.  On examination, it was found that the cartridges were fired from three separate R4 rifles.  Gqomfa alleges however that he was armed with an AK47 machine gun.  It is submitted that it is probable that Gqomfa was in fact armed with an AK47 machine gun.
	An AK47 machine gun was used in the attack on the Lingelethu West Police Station - that was established in the criminal trial.  The evidence in the criminal trial was also that earlier that night before the Heidelberg Tavern incident, one of the applicants was armed with an AK47 machine gun and that Mrs Nkolise Nkebwa - who was in the house when the car was highjacked by the applicants in Khayelitsha, that she handed a cartridge to the investigating officer, the late Don Segal. 
	It was established that the cartridge was fired from an AK47 machine gun.  In fact, if one has regard to the charge sheet and the summary of the facts used in the criminal trial, then it would appear that the prosecution - that their case obviously before evidence was led, was that one of the accused in that case was in fact armed with an AK47 machine gun.  It is submitted however, that it might be that Gqomfa was mistaken and that he in fact used an R4 rifle during the attack.
	Now this next part is really from my own enquiries Mr Chairman, we didn't have the benefit or the luxury of getting in an expert but I spoke to some people who know about these things and one of these experts mentioned to me that: "If you know nothing about guns and rifles and things - if you walk in and he puts it out on the table, then you won't be able to distinguish between the two as obviously as he would.
	It is submitted Mr Chairman, that what is material and relevant is that Gqomfa has admitted responsibility for the killing of the victims of the Heidelberg Tavern attack and that he caused the deaths of the victims by shooting them.  It is respectfully submitted that is matters not whether the victims were murdered with R4 rifles or AK47 machine guns.
	Then the next and last controversial aspect which I want to deal with Mr Chairman, is the killing of Mr Jose Cerqueira.  Now Gqomfa alleges that Cerqueira - while he was alone outside the Machados restaurant, had fired shots in their direction and that as a result he shot and fatally wounded him.  In this regard it is submitted that the evidence given by Gqomfa is supported in material respects by evidence given in the trial court.  Reference has already been made to the evidence given by John Jacobs - who is a City Council employee, in the criminal trial.
	Benjamin Brode had given evidence in the criminal trial and during his testimony he made no mention that he was Mr Francesco Cerqueira or the other waiter by the name of Michael, when he went outside and saw the attackers.  The trial court in fact said that:
"It is however clear that the deceased had to have moved past Brode to the exit at some or other stage"
	It is submitted that this corresponds with what Jacobs had seen namely, that at one stage Cerqueira was the only person who had emerged from the Machados Restaurant.  After shots were fired, Jacobs had taken cover in his van and while he did so, Brode had emerged from the restaurant and he then saw the car moving in his direction and shots were then fired at him.  
	He ran inside shouting for Cerqueira and his gun but Cerqueira had already gone outside with the gun.  After he had taken refuge inside the restaurant, he returned to the front door and there he saw the deceased lying in the gutter - Francesco Cerqueira and the other waiter followed him.
	It is submitted that this is the more probable version  It is submitted that Mr Cerqueira - his evidence in this regard, must be treated with caution as he was - by his own admission, upset whilst giving evidence - I accept some responsibility for that I suppose.  In fact seriously, Mr Cerqueira told us here that he decided to give evidence before this Committee because he heard an allegation that his brother would have fired a shot or shots at the Heidelberg Tavern attackers.
	On his own evidence, Mr Cerqueira was upset that his statement to the police appears to have been ignored.  It is also interesting to note that the attackers were not prosecuted for the attempted murder of Mr Cerqueira or this other waiter Michael   because if you recall Mr Chairman and members of the Committee, he went - he pulled Brode in when these shots were fired at them - they were all fired at, at the same time according to Mr Cerqueira's evidence.
	Now, unfortunately a number of critical questions remain unanswered, which it is submitted, should not detract from the validity of the applicants' amnesty application.  Some of these questions include, firstly:
"Where or how did Brode find the deceased's gun after the deceased was fatally wounded"?
Brode himself has failed to answer this question.  Secondly:
"Why did Brode give the gun to Mr F Cerqueira to give to the police if it had not been used at all"?
Thirdly:
"Why was specimens taken from the hands of the deceased for the purpose of a gun residue test at 4H30 a.m. on the 31st of December 1993, after the deceased had been shot and killed at 11H30 p.m. the previous night on the 30th of December 1993, if it had not been for the fact that the deceased had fired his firearm"?
Now, just on that ...[intervention]