This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Nyanda: Court transcript
IN THE REGIONAL COURT FOR THE REGIONAL DIVISION OF NATAL HELD AT DURBAN
CASE NO 41/3751/901
DATE 1990/08/22
BEFORE MR W G M VAN ZYL
THE STATE VERSUS SIPHIWE NYANDA
CHARGE AS PER CHARGE SHEET
PLEA AS PER CHARGE SHEET
ON BEHALF OF THE STATE ADV P J BLOMKAMP
ON BEHALF OF THE DEFENCE ADV Z M YACOOB
INTERPRETER
TRANSCRIBER
SECRETARIAL SERVICES
ADVOCATE P J BLOMKAMP APPEARS ON BEHALF OF THE STATE, INSTRUCTED BY THE ATTORNEY-GENERAL OF NATAL
ADVOCATE Z M YACOOB APPEARS ON BEHALF OF ACCUSED, INSTRUCTED BY YUNUS MAHOMED AND ASSOCIATES
MR YACOOB: This is a bail application and we wish to make an application for bail in respect of the accused and, without further ado, I call the accused.
SIPHIWE NYANDA: (SWORN STATES IN ENGLISH)
EXAMINATION BY MR YACOOB:
Mr Nyanda, have you been in detention in terms of the provisions of section 29 of the Internal Security Act, 74 of 1982, until this morning? --- Yes, I have.
When were you arrested? --- On the 12th July.
Which part of the country were you in when you were arrested? --- In Durban.
For how long had you been inside South Africa at the stage when you were arrested? --- Since 1988, July.
In what capacity have you been in South Africa since July 1988, until the time you were arrested? --- As a commander of Umkhonto we Sizwe.
COURT: As a member of? --- Umkhonto we Sizwe.
MR YACOOB: Umkhonto we Sizwe. Just for the record, what is Umkhonto we Sizwe? --- It is the army of the African National Congress, the military wing.
For how long have you been a commander of Umkhonto we Sizwe: --- Since 1977.
Now, it has been drawn to you attention, has it not, that you have been charged with three counts, which relate to the possession by you, unlawful possession by you, of various ammunition and explosives? --- It has been.
Is it correct that you do not know the exact list yet and that there has not been an opportunity to consult with your legal advisers about the precise nature of the charges and what you are going to do about them yet? --- That is correct.
In the meantime, is the position that you wish to apply for bail? --- Yes, I do.
Mr Nyanda, do you have a family? --- Yes, I have a family.
Yes, what does your family consist of? --- Well, I have parents, a father and a mother, I have a wife and a child.
Now, where does your family reside? --- In Newcastle, Natal.
Do you know the exact address at the moment? --- Well, my attorney has got the address with him.
Right, what is your wife's name? --- My wife is Sishila Nyanda.
When last have you had contact with her? --- In 1986.
And where do you want to stay if you are released on bail? --- I want to stay with her.
Now, do you have relatives in Durban? --- Yes, I do.
Where in Durban? --- In Sydenham.
Do you know their name? --- Nkosi Masina, my cousin.
Do you know the exact address? --- The address is 35 Meadow Road.
And could you stay there as well? --- Yes, I could.
Now, as far as your wife is concerned, is it correct that she also, according to your information, had been a member of Umkhonto we Sizwe? --- Yes.
When did she come into the country? --- 1986.
And, according to your information, has she been tried, convicted, has she served her sentence? --- She was given a suspended sentence then.
She was given a suspended sentence, I see, and as far as your own personal position is concerned, there are two problems that the Court would have in respect of bail. You have admitted, you have said quite openly that you have been for some time now a commander of Umkhonto we Sizwe, is that correct? --- Yes.
Now, are you aware of what the position is currently of the African National Congress in relation to violence? --- Well, I was aware before I was detained that the African National Congress had committed itself to finding a peaceful solution to the problems of this country and I am aware, I have been informed by my attorney that following on the Groote Schuur Minute there has been another agreement reached, called the Pretoria Minute, where the African National Congress has committed itself to suspending the armed struggle.
And what does that mean for you, the decision of the African National Congress to suspend the armed struggle, if anything? Let me put it this way, does that mean that you can now carry on with activities concerning the armed struggle in your capacity as commander? --- I am a loyal member of the African National Congress and I take my directives from its leadership and, therefore, whatever the leadership decides, I abide by it.
So, simply, then is there any possibility, if you are released on bail, is there any possibility that you will carry on with your activities as commander of Umkhonto we Sizwe? --- No.
There is still one more area and that is you came into the country in 1988 illegally, not so? --- Yes.
And you have been inside the country since 1988, organizing for Umkhonto we Sizwe, underground, as it is described, is that correct? --- Yes, for the African National Congress and Umkhonto we Sizwe.
For the African National Congress and Umkhonto we Sizwe. The difficulty that arises is this, what is the you see there is always a possibility with someone like you, that you could now leave the country, go away to another country and not stand your trial. Do you understand that? --- Yes I do.
From the point of view of the Court there is always that possibility, correct? Now, what do you say about that? --- No, as I say, that the African National Congress, as far as understand, before I was detained, was working towards a peaceful solution, trying to negotiate with the Government to find a peaceful solution to the problems of this country and that I am a loyal member of the African National Congress and I abide by all its decisions and, as I understand, before my detention leaders of the African National Congress and other members of the National Congress had already begun coming home to reside at home legally and it is also my intention to reside in South Africa legally.
And is there any possibility that you are going to leave the country? --- There is no such possibility.
Now, it will be suggested also that, particularly with someone like you, there is a possibility that you will not stand trial. That is what the prosecutor will probably suggest and that is what the fear is. How would you comment on that, Mr Nyanda? --- Well, I will give my undertaking that I will stand trial.
Now, you said that you are aware that people from the African National Congress, from outside the country, that attempts are being made to ensure that as many of them as possible settle at home legally? --- Yes.
Now, in that context, have you had any information conveyed to you concerning indemnity? --- Yes.
Yes, well, what sort of information have you had conveyed to you, Mr Nyanda? --- I have had information that indemnity is being sought also for myself and I have also instructed my attorneys to pursue the matter of obtaining indemnity for me.
And what you feel at this stage about the possibility of getting such an indemnity, how do you feel about that? --- I feel very positive. I feel the possibilities are that I will get such an indemnity.
Now, as far as money is concerned, do you have any money of your own at this stage, with which to pay bail? --- I have money, which was given to me by the African National Congress.
Which was found in your possession when the police arrested you? --- Yes.
Now, assuming that money were not available to you for the purpose of your being let out on bail, do you have access to any other money? --- That money is available and I would have access to other money.
Is it correct that the African National Congress inside the country will ensure that this money is found for you, so that you can be out on bail, is that correct? --- That is correct.
Now, are you aware, of course, that if you did not stand trial, the African National Congress who has made these arrangements for that money will lose the money, is that correct? --- I am.
Do you wish the African National Congress, an organization to which you say you are loyal, to lose money in that way? --- No.
Finally then, is it your intention to stand trial? --- It is my intention to stand trial.
NO FURTHER QUESTIONS BY MR YACOOB
CROSS-EXAMINATION BY PROSECUTOR:
Can we just clarify this? You say that, as a result of the ANC's resolution to seek peaceful solutions and as a result of an agreement made and recorded in the Pretoria Minute, the armed struggle has been suspended? --- I say the armed struggle is to be suspended.
Has the armed struggle been suspended in terms of that minute? In terms of the agreement minutes in the Pretoria Minute? --- I have been in detention under section 29 and I have not had access to newspapers, but what I have been informed is that there is such an agreement to end violence.
Now, had you not been arrested on the 12th July and you had remained a free man and you had heard the news of the Pretoria Minute and what was agreed in Pretoria, would your activities then have ceased, when you heard that an agreement had been made and the ANC had offered to call off the armed struggle? --- I was in contact with my movement and I would have received orders to that effect.
So would your activities have stopped? --- My activities would have stopped if I was ordered to stop those activities.
Well, how, let us not make it conditional on orders coming. An announcement was made that agreement had been reached between the Government and the ANC and the ANC was going to call off the armed struggle as from the date when the Pretoria Minute was signed. Had you been free, had you heard that, would your activities have ceased? --- Naturally, if the organization had made such an agreement, I would have.
And would the rest of your unit have ceased? --- I would have instructed my unit to cease.
And, ceasing activity, what does that mean? Does the unit disband, everyone goes his own way, gets normal jobs and enters into a normal life or does one just lie low? --- It will be interpreted according to the agreement itself.
Yes, well, I do not think the Pretoria Minute spelled out the mechanics of what ANC cadres were supposed to do while the struggle was suspended. Will you tell me what your unit would have done, had you been free at the time and what you would have ordered them to do? --- I would have ordered them to do that which the agreement spelled out.
Yes, now, the agreement spelled out that the armed struggle was to cease. Does that mean the unit would disband, people would go their own way, they would no longer meet, they would no longer organize and train, is that what it means?
MR YACOOB: Your Worship, I am sorry, the witness is in a difficult position. The agreement, as I understand it, was that the armed struggle would be suspended and particularly since the witness himself had been in detention during that time and has heard it for the first time from us after months of detention in terms of section 29, we must be clear about what we put. The agreement was not that the armed struggle would cease, but that it would be suspended, and there may be a distinction.
PROSECUTOR: Your Worship, I am happy to rephrase it and use the word: "Be suspended". Had you been free, had you heard that the Pretoria Minute had been signed, in terms of that the armed struggle had been suspended, would your unit have disbanded and everyone gone their own way, stopped training, stopped organizing, stopped meeting? I want to know what you mean by, "cease". You say your unit would have ceased, your activities would have ceased. What exactly do you mean by, "cease"? --- No, I mean we would have suspended our activities.
Would you have gone and got a normal job and entered the mainstream of life, rather than an underground operative? --- Yes, the people who had the possibilities to enter the mainstream of life would have done that.
You would have stopped meeting? --- Yes.
You would have stopped training . (intervention) --- Yes.
People? --- Yes.
What would you have done with any arms or ammunition in your unit's possession? --- We would have waited for instructions from the African National Congress, what to do with such, because they are informing us that they have suspended the armed struggle.
Where were you living at the time of your arrest? --- In Avoca.
Is that a house in Avoca Road? --- Yes.
Did you rent that house? --- Yes.
What was the amount of the rent every month? --- R600,00.
Did you yourself rent any other houses? --- Yes.
Which houses, can you tell us? --- A house in Kenville.
Is that the house called "The Knoll"? --- Yes.
You rented that. What was the rent there? --- About R318,00.
Per month? --- Yes.
Any other houses you rented? --- Another house in Greenwood Park.
Was there a house at 70 Westview Road? --- Yes.
You rented that too. What was the rent there? --- R200,00.
R400,00? --- R200,00.
When you were arrested, you were traveling in a green Cressida, is that correct? --- Yes.
Attached to the keys, or, if I may rephrase this, your Worship, found in that green Cressida were also the keys to a house in Annet Drive, Reservoir Hills, is that correct? --- Yes.
Was that a house you rented or what was your connection with that house? --- Yes.
You rented it? --- Yes.
What was the rent? --- R400,00.
COURT: That was in?
PROSECUTOR: In Annet Drive, A-n-n-e-t, Reservoir Hills.
COURT: The suburb?
PROSECUTOR: Reservoir Hills. Found on your keyring, which had the ignition keys to the green Cressida, as I understand it, was the key to a flat in Johannesburg, in a block of flats called Bistero, is that correct? --- Yes.
Did you have such a key? --- Yes.
Did you rent that flat? --- Yes.
Or who rented it? You rented it? Did you pay the rent? --- Not I personally.
Oh, who paid the rent? --- Some comrade of mine, called Susan.
A comrade of yours called Susan? --- Yes.
Was Susan her real name? --- No.
What was her real name? --- Janet.
Janet. Do you know her surname? --- I think it was Love.
Janet Love. Did you also have a connection with another property, a flat at Sahara Mansions, a building called Sahara Mansions in Sydenham? --- Yes.
What was your connection with that building?
COURT: Sydenham in Durban?
PROSECUTOR: Sydenham, Durban, your Worship. What was your connection with that building? --- No, we used it as an office.
Now, you entered the country illegally when you entered, did you? --- Yes.
Do you have a legal passport? --- I do not have.
Is it correct that a briefcase of yours was found at Avoca Road, at the house in Avoca Road, that you have referred to? --- It is correct.
And is this the briefcase? --- It looks like it.
COURT: Maybe the witness can have a look at it.
PROSECUTOR: We would just have to empty it, your Worship.
COURT: Yes. --- Yes, it is.
Was it the briefcase? --- Yes.
Is that the briefcase? --- Yes.
All right, then you need not show it to him.
PROSECUTOR: May that be Exh 1, your Worship? Is it correct that in yhour briefcase various street maps of the different cities in this country were found? In particular there was a street map of Port Elizabeth and a street map of Johannesburg, and there was a smaller scale map of the eastern side of the country? --- They were not in my briefcase.
Oh, where were they? --- They were found in that household.
Sorry? --- In that house.
Oh, they were found in Avoca Road house. Were they yours? --- The Port Elizabeth one was not mine.
The Johannesburg one was, was it? --- Yes.
So you had a street map of Johannesburg. Now, is it correct that found in your briefcase were some passports or documents which purported to be passports? --- Yes.
Whose passports were these? --- They were mine.
I see. Would you look at these for us and tell us if these were your passports. The one, for purpose of the record, your Worship, is a document that purports to be issued to one Ray Peterson, it purports to be a passport issued by the Government of the Republic of South Africa. The other one purports to be a Lesotho passport, issued to one Dennis More. Are those the passports that were found in your briefcase? --- Yes.
COURT: Do you wish to hand them in as exhibits?
PROSECUTOR: It may be as well to give them numbers, your Worship. May the Lesotho passport be Exh 2, and the putative South African passport Exh 3. Now, whose passports are these? --- They are my passports.
Where did you obtain them? --- I obtained them before I came in, in Lusaka.
I see. Do they have photographs or let us start with the one, the Lesotho passport. Does it have a photograph of you in which you are disguised to look slightly different from the way you look now? You have a fuller beard, you also wear a pair of spectacles for the photograph appearing in Exh 2? --- Yes, sure.
COURT: Is that on the Lesotho passport?
PROSECUTOR: On the Lesotho passport, your Worship. And in the Exh 3, does it contain a photograph of yourself, which was a photograph made while you wore a wig, a different pair of spectacles and a false moustache? --- Yes.
Is it correct that the wig, the false moustache, the spectacles were found at one of these houses you have mentioned? I think it was Avoca Road? --- No.
Oh, well, what do you say was the position? --- They were not found there.
They were not found. Would you care to take a look at these and comment? And I might inform you that, if necessary, we will lead evidence that these items were found in the house at Avoca Road. --- Yes, they may have been found at Avoca Road, but they were not mine.
Oh, whose do you say they were? --- I think the other people who stayed with us there.
And, for purposes of the record, your Worship, there are four wigs of different qualities and colours of hair, two pairs of spectacles. I do not think it is necessary that they become exhibits. You see this wig here, the rather curly and graying one, looks very similar to the hairstyle that you wear in the photograph in Exh 3, where you appear in the photograph with a false moustache, spectacles and a wig. Is this not the wig? --- Yes.
Oh, so did other members of your unit also find it necessary to use disguise and disguise themselves to look different from the way they normally looked? Did they? --- Yes.
Yes, is that all part of what is called "secret work"? --- Yes.
Yes. Were other passports found that purported to be, or were found in your possession, an identity document in the name of Richard O'Rielly, a passport in the name of Abdool Bashir Moosa, and yet another passport in the name of Richard O'Rielly, are these yours too? --- Yes.
COURT: Are you going to hand them in?
PROSECUTOR: They may as well become exhibits. I think it would be easiest to make them Exh 4A to 4C.
COURT: 4A would be in the name of?
PROSECUTOR: 4A will be the Richard O'Rielly passport. 4B will be the Richard O'Rielly identity document, and 4C will be the Moosa passport.
COURT: What is the full name on the Moosa passport, Abdool, was it?
PROSECUTOR: Abdool, spelled A-b-d-o-o-l B-a-s-h-i-r. And do all lthese three passports have pictures of you in various disguises.
COURT: Is that correct? --- Yes.
PROSECUTOR: Now, is it correct that, found inside the briefcase, Exh 1, at the time, was an amount of R30,000,00 in cash, is that correct? --- It is correct.
And was there also a quantity of foreign notes in there? --- It is correct.
Currencies of various different states, is that correct? --- It is correct.
And was there also a quantity of foreign notes in there? --- It is correct.
Currencies of various different states, is that correct? --- Yes.
And is it correct that in the green Cressida that you were driving at the time of your arrest, found on the floor, was a hand-written note of which this is a photocopy, commencing: "Carl to Theo", and ending with the words: " to get Popo or Peter or anyone else from the OC to accompany the two of you?" Would you like to look at this and tell us if this is a photocopy of a handwritten note that was found in your car? --- Yes.
Who wrote it?
COURT: Exhibit?
PROSECUTOR: May that be Exh, perhaps that should be Exh A, your Worship, it is a document. Who wrote this? --- I did.
So are you Carl? --- Yes.
Was Carl the name that you used? --- Yes.
Just before we go on to this, could you tell the Court why you found it necessary to have all these different passports and disguise yourself? --- No, because I was coming home to work underground and I needed to have disguises, in order not to be identified and change disguises.
And did you use this sort of passport and also travel in disguise when you went to other countries, during your period outside this country? --- No.
Well, you have traveled to various different parts of the world, have you not? --- Yes.
You have been trained in Russia, is that not correct? --- Yes.
Did you travel to Russia under your real name? --- No.
No. --- But I did not travel under a disguise.
No, so you traveled under a different name? --- Yes.
Can you recall which name of which passport you used when you traveled to Russia? --- I cannot recall.
Now, is it correct that, found at this house, "The Knoll", amongst other things, was a lot of computer equipment.
COURT: In which house was that?
PROSECUTOR: "The Knoll". There was a certain amount of computer equipment there. There was a modem, a computer, six computer disks and there was also a portable computer, is that correct? Or would there have been such stuff at "The Knoll"? --- There could have been.
It is not in dispute that computer equipment was found there, including a modem? --- Yes.
It will save me the trouble of calling a witness. --- Yes.
Right. Is is correct that at the house in Avoca Road, similarly, some computer equipment was found, including a large number of computer disks, the sort of disks on which data can be stored, I think they are called floppy disks or hard disks or whatever, is that correct? --- Yes.
Similarly, computer equipment and paraphernalia were found at all those other properties that you have indicated you were connected with, that is the Sahara Mansions in Sydenham, Westview Road, Greenwood Park. --- Yes.
And also the flat in Johannesburg, is that correct? --- Not at all the places.
Oh, which ones do you say there was no computer equipment? --- The computer equipment was found at Avoca Road and "The Knoll".
At "The Knoll", well all right, we will come back to the computer equipment. Found at Avoca Road were two petrol tanks, modified petrol tanks. One was a Mercedes tank, one was a Cressida tank. Can you tell us anything about these tanks? --- No.
Well, did you know they were there? --- Yes, I knew they were there.
So what were they used for? (Pause) Do you want to tell the Court? (Pause) Do you want to tell us what these tanks were all about? --- They were used for carrying arms.
You used then for carrying arms? --- Yes.
They had been modified so that they held a minimal amount of petrol and the rest of what looked like a petrol tank was a space in which arms and explosives could be carried, is that correct? --- Yes.
And from which countries were arms carried into South Africa in those petrol tanks? --- From Botswana.
Arms were brought in from Botswana. Was it your unit that brought those arms in, or were those arms delivered to your unit? --- Yes.
Can you recall how many different trips there might have been? If you can just give us some indication of the amount of arms that have been brought in by your unit? --- I have no recollection.
Would it be more than ten trips? --- Probably.
Now, let us get back to the computers. What were these computers used for? --- They were used to store documents.
To store documents. Is it correct, if there is no dispute with us here, it will also save us calling a witness, a modem is a mechanism by which data can be transmitted over a telephone to a tape recorder, is that correct, and from that tape recording it can then be decoded on a computer? --- It is correct.
Yes, in other words, it works like this. Someone types a message into a computer, it is stored on disk. The computer is connected up to a tape recorder, a recording is made. That recording is played over a telephone to an answering machine, it goes into the telephone via a modem, and the recording on the answering machine on the other side can be decoded and be printed out as the original message, is that correct? --- That is correct.
That is correct. Is is not so that what was stored on the disks, on the computer disks found at these houses was not simply documents, it also contained a lot of messages, which went between various different persons, who all presumably had access to some or other sort of computer and equivalent programmes you had? --- It is correct.
So messages were sent about the world, would it be fair to say that? --- Yes.
Yes, your unit communicated with people in Johannesburg, with people in London, is that correct? --- Mm.
And is it correct that the people in London that you communicated with somehow had communications with the people in Botswana, who supplied the arms, which were brought in with the false petrol tanks, is that correct? --- I do not know.
Oh, well, we will come to that later. The fact of the matter is that, by means of these computers and other devices, you had communications and you had access to and you were able to communicate with a vast ring of people, would it be fair to say that? --- Yes.
Yes. Now, could we look at some of what was found from those computers? Bear with me a minute, your Worship. I have here what I am informed is the print-out of a disk, which contained a computer file called: "Addition". Would you take a look at this and confirm that this is such a thing? That this document, a photocopy of a print-out of data contained on one of the disks found at one of the houses that you were involved with? --- What should I say about this?
No, I just want you to identify, is it what I say it is? I am informed that that is a print-out of some of the data contained on one of the disks found at the Avoca house and the data was contained in a file, a computer file on that disk, called, "Addition", that was the name of the file. It is not particularly important, but would that document you are holding there be a print-out of some of the data on one of the disks? --- It could be.
Well, is it or not? Do you recognize it? (Pause) Well, let us look at the fourth line. It says: "From Theo to Carl, 18th June ." You have already told us you are Carl, have you not? --- Ja.
Would such messages have ..(intervention) --- Yes.
Passed on your system from Theo to Carl? --- Yes.
Yes. Your Worship, may this be Exh B.
COURT: Yes, right.
PROSECUTOR: Right, now if one looks at would you just look at the last sentence in the paragraph No 2 there, paragraph No 1. Do you read that? You see the sentence I am talking about? It reads like this:
"At the same time therefore it is necessary to emphasize that while we are attending to many details and important questions unless at the head level of Vula we clearly attend to the larger and priority items we will be failing in our duty."
Do you recognize that, do you see it there? --- Mm.
Was Vula the name of a project or a mission that your unit was part of? --- Yes.
Yes. Would it be fair to say Vula was supplied with a vast amount of funds from overseas to finance its operations? --- It was supplied with money to finance its operations.
Well, I support whether it is vast or not is a matter of degree, but if we look at paragraph 3, the very first sentence there:
"I think there is too much confusion on this question. I am attending to the question of getting the funds from abroad and exchanging it. Presently I am looking for 20% rate. But again I had left you with R110,000-00. Is this all finished?"
Shortly after that there is a sentence about, "there is 30 000 sterling coming for the Vula operation in all regions". Would you have dealt with those sort of amounts? Would those sort of amounts have passed through your hands, financing you unit's operations, financing Vula? --- Yes.
Yes. The next sentence says: "Next there is 30 000 coming for the Retailer." Could you tell us who the "Retailer" is? --- No, they mean the party structures.
The party structures. Which party? --- The Communist Party.
The Communist Party. Would that be the Communist Party of South Africa? --- Yes.
Or the South African Communist Party. Was the Communist Party the conduit through which money was organized and was eventually (intervention) --- No.
Landed in Vula's hands? --- No.
I mean your unit's hands? --- No.
Oh, how did it work? You tell us, if you could. --- No, money was given to Vula, not the Communist Party or (intervention)
Money was given to Vula by whom? --- We got it from abroad.
Who assembled it all abroad before it got here through some mechanism and through exchanges and other people's accounts? --- I have no knowledge of that.
Was it not the Communist Party and their offices in London? --- I have no knowledge of that.
Would it be fair to say that a large amount of the traffic of messages went from London to Johannesburg and many, many of those messages spoke about messages initiated in London, spoke about funds which were being organized for Vula and for the launch of the Communist Party? --- Some.
So would it be fair to say the money came from London? --- Yes.
London was the last step before it got here? --- Yes.
Wherever it was collected. Right. Now, further down on Exh B let me rephrase this, in Exh B there is a reference to the Vula head committee, what was the Vula head committee? --- Your Worship, it seems as if I am being questioned now on matters of the case itself, when I thought the prosecutor will deal with the matters dealing with bail.
Mr Nyanda, his Worship will decide on the cogency and the relevance of the questions. I can assure you (intervention) --- Well, there are questions I do not wish ..(intervention)
May I finish please. I can assure you that if I am off line your legal representative will make an objection on your behalf. Now, would you just answer the question, please? Who was the Vula head committee? --- Well, there are questions I would not like to answer now.
You do not want to answer that question? --- Yes.
Is that a question you do not want to answer? --- Yes.
So you are not going to answer it for us. Right, perhaps you will tell us who Theo is. This message apparently went from Theo to Carl. Who is Theo? --- I will not answer that.
You are not gong to answer. Well, now, would you look at this document and similarly confirm for us if this is a print-out of some of the date that was stored on your disks.
COURT: Mr Prosecutor, the copy that I have of Exh B is very indistinct at the bottom. I do not know if there is anything that I should know.
PROSECUTOR: Your Worship, ours are no better. If necessary, we will attempt to obtain clearer copies. Is that one another message stored on disk, one of the disks found at Avoca, and this is how it would be if it was printed? Is it? --- Yes.
And it refers to: "The next pick up in Boris is for 23/24 June 1990". It gives details of how people should introduce each other, how they should recognize each other. To cut a long story short, is this a message arranging for an arms pick-up in Botswana, arms to be brought into this country? --- Your Worship, I think some of the questions I will answer when I have contacted my, spoken to my attorneys.
COURT: What is your objection? --- I want to consult my attorney before I answer some of the questions pertaining to what is ..(intervention)
You are now under cross-examination, so your advocate is not really at liberty to speak to you. Not while you are under cross-examination. Do you wish to reply to the question.
PROSECUTOR: Do you want to reply to that question? --- Yeah, it was.
It was, and these arrangements that are set out here come in a message that is headed: "For Carl from Pete". Would that be a message for you sent from Pete? --- Yes.
And the line just above, "For Carl from Peter", reads: "This arrived from Cleo last night". Would that mean or perhaps you tell us what it means, what does that mean, "This arrived from Cleo last night"? --- It arrived from London.
Yes, is Cleo the code word for London? --- Yes.
So does it mean this, someone in London, who knew what the contact arrangements were, sent a message to someone on this network, who passed it on to you and gave you the details for the arms pick-up in Botswana, is that the position? --- Yes.
Yes, so would it be fair to say then that by some means there was communication between the people in London and the people in Botswana who supplied you arms? --- I do not know how.
No, we do not know either. We would like to know, but would you agree with me that the people on your network, who were in London, were in contact with the people in Botswana by some means, we can infer that? --- I do not know whether it was directly or not.
No, but they were in communication somehow? --- Yes.
Yes. Your Worship, I think that should become Exh C, unless there is already a C.
COURT: No, it is Exh C.
PROSECUTOR: Now, getting back to the amounts of money, would you take a look at this document? It is a print-out of data saved on disk, on a disk found at one of these houses, either "The Knoll" or Avoca. Do you recognize that at all? --- Ja.
Yes. Talking about operational costs, there is a reference there to R570,000,00 for two different regions, "All operational costs .. will be met by the ANC.", and the message ends: "Please re-send part 2 of retailer report." Again, would R575000,00 be a reasonable figure to budget for Vula for a few months? --- This was not sent to me.
No, I am not suggesting it is, I am suggesting it is part of the data saved on disk in one of these houses that you agree you were connected with? --- I have no knowledge of this R570 000,00.
Right, well, then perhaps just give us an opinion. Would R570 000,00 be a reasonable figure for the budget for the sort of operation that your unit and other structures were engaged in for, perhaps, three months or so, R570 000,00? --- No.
Oh, well, in any event . (intervention)
COURT: Do still with Exh D to go in?
PROSECUTOR: Yes, may that be Exh D.
COURT: The suggestion is, where was it found? Or will evidence be led about that later? Apparently, as I understand the witness, he bears no knowledge of this one.
PROSECUTOR: Your Worship, it was found at the disk on which that data is recorded was found at the Avoca house.
COURT: You say you do not have any knowledge of this document? --- No.
PROSECUTOR: Well, in any event, Mr Nyanda, to save us calling a witness and to curtail these proceedings, is it in dispute that the disk containing that was found at Avoca? --- No.
That is not in dispute, fine. Now, would you take a look at this document. My instructions are that this is a print-out of data contained on a disk found at Avoca. Is it? It appears to be headed: "John to Carl", so it would seem to be a message that went to you. --- Yes.
COURT: The previous document was Exh D and this one Exh E.
PROSECUTOR: As the Court pleases. Paragraph 1 there refers to: "Our new courier from Lucy's place is visiting Jessy on Tues. 12 Dec." Could you tell us where Lucy's place is? --- It is in Amsterdam.
Amsterdam, and Jessy? --- Johannesburg.
Code word for Johannesburg, yes. Now, the second paragraph refers to a person, Jean, who will arrive with the crew and will be in uniform, as usual. "She will enter shop before going upstairs to change. She has two stripes on arms; name on badge = Cora Rijfkogel", and well, let us deal with that part first. Is it correct that the message refers to a courier, who brought certain items into the country from the Netherlands, that she was an airline employee and that you met her in Johannesburg? --- It is correct.
That is correct. Then, paragraph;h C1: "We've developed a new comms system for Vula (called TO from now on) and it explains how, by means of phonecards one can send 17 000 bytes, b-y-t-e-s your Worship, I understand that is a computer term for a unit of information, 17 000 bytes as opposed to the other computer's 2 300 and how messages will be error-corrected". Is that so, that around about that stage, and I think it was December last year, a more sophisticated communication system was developed and it was developed specifically for Vula. That is what the message says: "We've developed a new comms system for Vula .", is that correct? --- Yes, that is what the message said.
Yes, was it correct? --- It is what it said.
Yes, so was a more sophisticated communications system . (intervention) --- No.
So is the message wrong? --- No, the communications system never came about.
Oh, it never came about. Would you look at this document and confirm for us, is this a print-out of some data stored on disk and found at "The Knoll" again? --- Yes.
May that be Exh G, your Worship.
COURT: It should be Exh F.
PROSECUTOR: The last one was Exh F, this one will be Exh G.
COURT: I have not received a copy of that.
PROSECUTOR: I am sorry, I am informed the last one was E. This will be Exh F then. Avoca or "The Knoll"? It was found at Avoca, I am informed. Now, this message seems to make arrangements for the pick-up of a person called Glenn and the pick-up of various other people called Jacob and Jane and it contains details of how they are going to be transferred from a place called Govan to inside the country. Would that be a fair description of what this message is? --- Yes.
Where is Govan? Is that the code name for another country? --- Swaziland.
So Govan is Swaziland. And are all these people that are referred to in here, who are about to be picked up, that is Andy, Francis, Glenn and the Jacob and Jane, were these trained cadres, who were being infiltrated into the country illegally? --- Yes.
And for what purpose were they being brought here? Were they assigned to your unit or had they been recruited by your unit? --- They were assigned to our unit.
Assigned to your unit by the what higher structure, could you tell us? --- By the president's committee.
The president's committee. The president's committee, would that be the president of the ANC? --- Yes.
A committee headed by the president of the ANC? --- Yes.
Could you tell us who were the other members of that committee? --- I only know of one other.
Who is the other? --- Joe Slovo.
Joe Slovo, and there were various other members of this committee and would it be fair to say that that committee controlled and ran the Vula project? --- Yes, they were mandated by the NEC to do so.
Yes, and would it be fair to say that the Vula project was intended to build up a national underground in this country? --- Yes.
And would it be fair to say that that continued long after the 2nd February, when the ANC was unbanned? --- Certainly.
It continued after April 2nd, when the first talks were or April 6th, I am subject to correction here, when the first talks were held at Groote Schuur between the ANC and the Government, trying to initiate a negotiation process? --- Yes.
And would it be fair to say that it continued after the 2nd May, when there was further agreement between the ANC and the Government and the agreement was minuted? --- Yes.
In fact, there was a document amongst all the data stored on your disks dated the 5th May, which indicated quite clearly what Vula was all about and that it was intended to prepare a revolutionary army for the event of any insurrection, is that correct? Would it be fair to say that? --- At some stage, yes.
And would you agree that if the date on the document is the 5th May, it would appear that your unit and the other structures it was part of as late as the 5th May, were engaged in preparing for insurrection? --- Not .(intervention)
MR YACOOB: Might my learned friend show the witness the document at least? He has the document, we would like to see it, see what it says, so that he can comment on it fairly.
COURT: That is a fair request.
PROSECUTOR: As your Worship pleases. Please bear with me a minute, your Worship. I, unfortunately, only have one copy of this. I will make other copies available later. It is a document headed: "For urgent consideration of the ILC andHQ from DPC on organization of the ANC" dated 5th May 1990.
COURT: Will you please mark it Exh G.
PROSECUTOR: Do you recall that? --- I know it.
Right, now if you would look at the bottom of page 2, in fact paragraph 3.2, and bearing in mind that this was dated 5th May, that is after the second round of talks between Government and the ANC team have ended, we find the following:
"The possibility of seizure of power remains a central element of our strategy. The combination of mass struggles and preparation of the forces of the revolutionary army occurs at the same time as negotiations."
Would you agree with me that a fair assessment of that is that despite considerable progress by the 2nd May, between the Government and the ANC, working towards a negotiating process, which would result in a negotiated peaceful settlement, the DPC, et cetera, were preparing for an insurrection and regarded the possibility of a seizure of power as being a central element of their strategy and regarded it as being necessary to prepare the revolutionary army, even though negotiations were on the way? Would that be fair to say that? --- It would be fair to say that some people still did.
Well, is that not what the document says? What other interpretation can be put on it? How can it be construed, how else? --- Thaqt is what I am saying that the people who drew up the document.
Well, right, now who drew up the document? --- It is the DPC.
And what does the DPC stand for? --- It was the Durban political leadership.
COURT: Durban?
PROSECUTOR: The Durban political leadership of what? --- Of the ANC underground.
Of the ANC underground and was your unit a part of that Durban political leadership of the ANC underground? --- No.
Were you in any way connected with the Durban political leadership? ---
Yes? --- Yes.
Did you subscribe to this policy? --- No.
You say that you felt different about it? --- Yes.
You felt different about it, you did not well, lket us get clarity on this, did you not subscribe to preparing for seizure of power at the same time as a negotiating process was on the go? --- No.
You did not subscribe to that? --- No.
Can you tell us why, by the 12th July, this having been written on the 5th May, you were still in place, you were still a part of your unit, you were still part of the underground in Durban and you still had connection with the underground leaders, who felt this way? --- No, because the ANC had not given up our struggle, the ANC had not given up, the ANC had not said we must cease, we must stop working underground and the prospects of a negotiated agreement with the Government was not held as the only solution to the problems of the country.
So there were other solutions and the other solutions were the seizure of power? --- We were saying that if negotiations do not go on, then we were going to continue with armed struggle, we were going to continue working underground. If the negotiations failed, we were going to continue with armed struggle.
So it was conditional? If negotiations failed, the ANC would use the armed struggle to seize power? --- If negotiations failed, the ANC is going to use this armed struggle.
Right, do you not think it was rather important for the draughtsman to add in that condition here, because what he says is exactly the opposite? The combination of mass struggles and preparation of forces of the revolutionary army occurs at the same time as negotiations. --- But these are just draft proposals sent to the ILC and headquarters by a sub-structure of the movement.
You say it does not reflect their policy? --- Yes.
Because policy, it would seem, can vary from day to day? Perhaps do not worry to answer that. Now, would you agree that, or is it in dispute that found at the house called "The Knoll" ws an ultra-violet pen and an ultra-violet light? --- No.
Did you not know about those at all? --- I knew about them.
Oh, you did know about them? --- Mm.
So they were found there? --- Yes.
What were they used for and whaqt were they intended to be used for, ultra-violet light and an ultra-violet pen? --- Ultra-violet pen for to write in ultra-violet light to decipher secret writing.
Yes. What these things do is, they write a message, which to a person who does not have the light, cannot be seen, but to someone else who does have the light can be read, is that correct? --- Yes.
So they enable you to communicate secretly? --- Yes.
Were there also training notes on these items, ultra-violet lights and ultra-violet pens and were these training notes stored on disk as well? --- I cannot recall that, because I never used the ultra-violet light and the pencil.
You see, my instructions are that such training notes were found there, on ultra-violet lights and ultra-violet pens and if we show you one, would you be able to confirm it is the sort of thing, the sort of training material that would have been in these houses? --- Probably.
MR YACOOB: I have been rather patiently listening, because obviously the Court needs to be aware of, to some extent, the degree of the sophistication and the operation in which the accused was involved, in considering the bail application. Now, once he has said, for example, there must be some limit to it. We cannot go into detail in relation to a whole range of activities. We know that it was a secret network. We know that certain secret letters were used and so on. The witness has conceded that what the purpose of the ultra-violet pen and ultra-violet light is. What purpose is it now going to serve to say that that particular bit of training material was found in the house? What relevance does it have to this particular bail application, which is concerned with the release on bail of someone who, despite what the security policy may or may not know, despite the instructions my learned friend may or may not have, has actually been charged with three counts of possession of ammunition and explosives. My submission, your Worship, is that there must be some limit and that, in trying to put in this document, my learned friend is actually overstepping that limit. I concede that there is clearly an extent to which your Worship needs to have a vision of the range of activities and the way in which these activities were to be carried out, but my learned friend must avoid being repetitive, must avoid putting in material which does not take your Worship's understanding further to the extent that such understanding is necessary, in order to make a determination of this particular bail application, otherwise, your Worship, we could be here all night.
COURT: Mr Blomkamp?
PROSECUTOR: The relevance of this evidence consists of the following. At any application for bail, the issue to be determined is whether there is a likelihood that the accused will abscond and not stand his trial. Now, the indicia, which point towards whether a person is likely to remain and stand his trial or not or abscond and not stand his trial are many and they are all relevant to the question, they are all things that have to be weighed in the scale. The fact that an ultra-violet pen and an ultra-violet torch were found in the house cannot, if it is left there, mean more than that one person who was in the house maybe used these things, maybe was interested in such things. Without evidence of the fact that the circle who were involved here were acquainted with these things, were taught about them, it is important to understand that. The relevance is this, when one is weighing the likelihood that a person may abscond, a factor which must be taken into consideration is the ease with which he may abscond and that, in turn, depends on the size of the network he was involved in, the fact that there are other people in his network, sympathetic to his cause, whom he may rely on, who may be able to assist him, and the fact that they are able to use clandestine methods of communicating makes it even more easy to abscond, simply because it is easier to communicate with people who will help him to abscond. So the degree of sophistication of the clandestinity is relevant to the ease with which a person can abscond. It is, therefore, relevant to the likelihood that he will abscond. It is, therefore, an essential issue, which has to be determined at any bail application. I submit this evidence is relevant.
COURT: Mr Yacoob, the Court will allow this evidence. You may proceed, Mr Blomkamp.
PROSECUTOR: This is the front page of the lecture notes that were found.
COURT: That will be Exh H.
PROSECUTOR: It is headed "UV Torches and Pens". I can assure you it was a much bulkier document. We have just brought the front page here to show you what it is all about. Would notes like this have been stored on disk, "Use the UV pens to write secret messages but note the following", and then setting out in instructions as to how these pens should be used? Things to be avoided like you should not write on glossy paper and you should not write on non-absorbent surfaces. Would this kind of training material have been available to your unit? --- It could have.
Was the intention that they would be trained in this and that people came into the unit and people trainied by them would also be trained in this kind of thing? --- I think by sending this the intention was that.
Yes, the intention was that. And I am instructed that there were similar notes on micro-photography. Would there have been such things, and stored on disk too? Would it have been the intention to train your unit and for them to train other people in the use of micro-photography? I show you the print-out of some of the data stored on disk. --- Yes.
This would have been the sort of thing they were taught as well? --- Yes.
And what would be the purpose of teaching then about micro-photography? What would be the purpose of teaching them about micro-photography? --- As I said, these things were not sent to me personally, but they were there.
But you were a commander of the unit, you were a commander of the unit, you would surely know what the purpose of this would be? --- There are other things I did not know.
Well, did things go on in your unit that you did not know about? --- Yes.
What kind of commander were you? Surely you knew what your unit was doing? --- I was working with other people, I know nothing about micro-photography myself.
Oh. I do not know how late your Worship wishes to sit this afternoon.
COURT: This last document will then be Exh J. No, we can proceed. We started fairly late, so we can proceed. Up to about quarter past four, if that would suit you. Will that suit the prosecution and the defence, quarter past four?
PROSECUTOR: Yes, that would suit me.
MR YACOOB: I would like to have this thing disposed of as quickly as possible.
COURT: I beg your pardon?
MR YACOOB: As far as I am concerned, the later the Court sits the better. I would personally prefer to try to have this application disposed of, so I have no problem.
PROSECUTOR: To cut a long story short, was there a lot of training material there? Some of it headed "Sabotage, insurrection ." (intervention) --- Yes.
"Small arms, limpet mines, explosives". I do not want to have to hand all these things in. --- Yes.
Yes. Were maps found at these houses, at Avoca in particular, maps on which military and police installations have been marked out? --- Yes.
Were there, in fact, lists of buildings which housed headquarters of units of the Defence Force in various parts of the country? --- I have no recollection of some of the material that was sent.
Was there a map, and for obvious reasons this is not going to become an exhibit, I will show it to you over the well of the court, was there a map of fuel depots and railways, to which someone, some possessor of this map seems to have made additions by marking certain points? --- Yes.
Were these intended to be targets? --- Those maps ..(intervention)
Was that the interest of these points, these strategic points? --- The maps were sent as they were, as you see them.
Oh, were they sent with the intention that it was providing you with intelligence about possible targets? --- Yes.
And targets that would most certainly be attacked in the event of an insurrection, would it be fair to say that? --- I think it would be fair to say that.
Yes. Now this is what the unit was all about and this is what you were engaged in right up to the time of the 12th July, is that not so? --- Yes.
And you assured his Worship that if you are released you will not run away? --- I do.
You are going to stand trial? --- Yes.
Now, when you were arrested, various other people were arrested at the same time, following on your arrest, is that not so? --- Yes.
And others, who were part of the same network and who communicated with you, have not been arrested, for example, Janet Love, is that not so? --- Yes.
Not only has she not been arrested, she has become a fugitive and she is untraceable by the police and they cannot find her. Ever since your arrest they have not been able to find her. --- Yes.
Is that correct? --- Yes.
Did you point out to the police a house in Johannesburg, in Parkhurst, in Twelfth Street, Parkhurst? --- Yes.
Was that a house that was intended to be a storage place for arms? --- Yes.
At that house false or modified petrol tanks were found of the same type that were found at "The Knoll", is that correct? --- Yes.
Yes, that house had been rented by Susan Grabback (?) is that correct? --- Yes.
She is a Canadian national? --- Yes.
Is it correct that, within hours after your arrest, Susan Grabback was nowhere to be found and is presently a fugitive from the police in this country? --- I do not know whether it was within hours.
Oh, but she certainly is now a fugitive, is she not? --- Yes, I heard so.
COURT: And the house is situated at? Where is the house situated?
PROSECUTOR: In Parkhurst, in Johannesburg, Twelfth Street, Parkhurst, Johannesburg, 129 Twelfth Street, Parkhurst Johanesburg. And then there are numerous others. If we were to go through all these documents that could be printed out from these disks that represent all the traffic in messages and we made a list of all the code names there, 90% of those people have not been found, have they? They are fugitives from the police, is that correct? Do you agree with me it would be fair to say that? --- I do.
You agree. Now, they are not hanging around to come and have this matter aired in court, have the activities they were involved in aired in court, come the time of the trial. I want to suggest to you, Mr Nyanda, there is no reason why you should either. --- Well .(intervention)
Do you seriously wish this Court to believe you are going to return to stand trial? --- I do not think that if I was not arrested I myself would have come here to submit myself before the Court.
You came here to submit yourself? I thought you had to be arrested? You were arrested on the 12th July? --- Yes.
Had it not . (intervention) --- So I am saying that, I am saying that, with respect to your question that the other people are fugitives, they have run away, I am saying that if I was outside also and I had not been arrested I would not have come to hand myself over to the police.
So you would have been a fugitive too, had you had the choice? --- Yes, but now (intervention)
Had you the choice, you would be a fugitive too, if you had not been caught in the net on the 12th July? --- If I had not been caught on the 12th July, I would have been underground until such time as the ANC gave the word to say that there is an agreement and that I must surface.
Now, assuming that, at the end of this application his Worship decides that you should be freed on bail, you will be free again. What makes the difference then? Why would you not go underground? What makes a difference in your case? Janet Love is free, she is underground, she is a fugitive, but you are in detention and when you are free you are not going to go underground again, you assure us, you are going to come back and stand your trial. Why should that be, can you tell us? --- As I said, I think that an agreement is imminent between the Government and the ANC, with respect to the question of indemnity, with respect to the question of political prisoners, and I want, I make an undertaking myself that I will not abscond bail if I am given bail. My family resides here, my wife, my child, my parents and I hae no intention of going outside and jeopardizing the possibilities of my being given indemnity or .. (incomplete)
Yes, so are we to understand from the first part of that answer that the undertaking you have given us is also dependent on what the Government does, that the agreement, the imminent consensus between the Government and the ANC is the reason why you are not going to run away? But if that does not occur, how is that going to affect things? --- I have been assured that the ANC itself, wants me to stand trial.
Oh. --- The leadership of the ANC wants me to stand trial and they will give their word that I will stand trial and I take my instructions from the ANC.
Now, why would that be, because it is contrary to their behaviour for the past thirty years or so, why would they want you to stand trial? --- I believe people like, people in our leadership, people like Nelson Mandela, Walter Sisulu, are people who, when they give undertakings, they carry out their undertakings.
They carry out their undertakings? --- Yes.
Your disks contained data which purported to be the minutes of a conference held by some members of the Communist Party at Tongaat in May, is that correct? --- Yes.
Did you ever see those minutes? --- Yes, I saw them.
Did those minutes not record how some people said that there was no question of being bound by agreements? Negotiation was simply a different terrain on which to continue the struggle and one could always renege on these agreements in any event? --- There was no such uttering.
I am subject to correction here, I do not hae it handy. If you want, we can get it out, but it will delay these proceedings, but (intervention) --- There was no such uttering.
Was that not the tone of what was discussed at Tongaat? --- No, there was no such uttering.
What amount of bail do you think would be suitable for your case? --- What the Court I think the lower the bail, the easier it is for the ANC or whoever to advance the bail.
Yes, how much, we are talking about the quantum. You see, his Worship; is in rather a difficult position. When an accused suspected of an ordinary, common or garden offence like housebreaking asks for bail, the Court normally looks at how much they can afford to pay and what amount would they miss, what amount would really hurt if they did not stand trial and it is normally about R300,00 or R500,00. You have already stated in evidence that the ANC will furnish the money for your bail. We have seen in documents here amounts bandied around like R570 000,00, R110 000,00. How much bail do you think should be fixed in your case, assuming that his Worship decided to allow you free on bail? --- I think whatever the ANC can afford to pay for me.
How much can they afford? --- I do not know, that is why I was saying the bail money should be fixed as low as possible, so that the ANC or my people could be able to raise the money for me, to pay it.
Bear with me a minute, your Worship, I am looking through the Tongaat conference minutes. Yes, I am looking at a document printed out from a disk found at the Avoca house, part of a computer file called "Mincon", it is headed: "Emergence of the party as a legal party. Challenge facing the party. Comrade BN's introduction to discussions." The last paragraph reads like this. We will supply you with a copy, but I assure you I am reading accurately.
"Clearly comrades, negotiations (sic) are a terrain (sic) of battle and it does not necessary (sic) follow that if the state does not adhere to our demands, the fight goes on and the struggle continues until we have reached our objectives. Negotiations is a terrain of battle. If this collapses, the struggle is not over the struggle goes on."
Maybe it is not spelt out very clearly (intervention) --- Yes.
But you will agree with me, would you agree, would it be fair to say the tenor of all these policy documents is that the struggle goes on until you have what you want and negotiations is simply, and the Government's willingness to negotiate, is simply a matter that provides, that makes the terrain a bit easier? Would that be a fair assessment? --- No.
Well, I want to suggest to you, Mr Nyanda, that there is no reason why, if you are released on bail, you should return to stand trial. I am obliged to put to you the State's version, you can comment if you wish. If you would like to comment on each of these propositions. There is no inducement for you to return and stand trial if you are released on bail. --- I think there is plenty inducement for me to return to stand trial because, as I said, I believe that change is imminent in the country and that negotiations between the ANC and the Government will succeed and that the question of political prisoners and political trials will be settled between the ANC and the Government and that I, personally, have nothing to gain by going outside and staying outside, away from my family, away from an organisation that is now allowed to operate legally, and go outside and stay in exile for ore years than I stayed.
Now, this is all very conditional, is it not, on this coming about? What happens if these talks go awry and this imminent consensus does not occur? There is some sort of administrative hiccup, and the thing ends, what then? Will you not just take some of your get some disguises, use your circle of friends, 90% of whom, it would seem, are still in communication with one another, leave the border, cross the border as easily as people we have read about here, Glenn and Jake have crossed the border, and go to other parts of the world? --- I think it is a question of an undertaking. First of all, the ANC are making an undertaking that I should stand trial and, as I said, I believe that the leadership of the ANC are people who keep their word, and I myself make a personal undertakaing and have no interest outside at the present moment, since my movement is legal, operates legally and my family is inside the country.
Now, what sort of reliance should we place on your undertakings, My Nyanda? Outside the country you were trained in principles of Marxism/Leninism, were you not? It was part of your course? --- Yes.
Do you regard yourself as a Marxist/Leninist? --- To an extent.
Hm? --- Yes.
Yes, you do, then you would be able to tell us, Lenin wrote such a lot, but I recall that in one part of his writings he said that morality is determined by what furthers the struggle and one should not be put off by the petty bourgeois prejudice against lying. Do you recall that? Do you recall having read that in Lenin, in your studies on Lenin? --- I heard something about that.
Yes, would that be a sort of neat summary as to how the Marxist/Leninists view the matter of lying? --- Of lying?
Yes. The morality of it? --- No.
Well, why did Lenin write it? You see, we would like to know what the oath means to you, because at the end of the day his Worship has to weigh up whether what you have said can be believed and whether he feels that it is likely you will not stand trial. What does the oath mean to someone who is steeped in Marxism/Leninism? Tell me. --- To me it means that if I give an undertaking I must honour that undertaking and, as Nelson Mandela said, after his release, with respect to De Klerk that he believes that De Klerk is a man of integrity and that he believes that if a man of integrity, if a man makes an undertaking he must carry it out.
I see. --- And I also believe that.
NO FURTHER QUESTIONS BY PROSECUTOR
RE-EXAMINATION BY MR YACOOB:
Now, of course you have had dealings with communists, not so? --- Yes.
Have you, in your experience, found communists to be dishonest, necessarily? --- No.
Have you found socialists to be dishonest people? --- I found them to be honest, upright people.
Is your definition of communists, people who do not keep to their undertaking? --- No.
And, as far as your undertaking, your support of Marxist/Leninist principles is concerned, when you were asked the question about the extent to which you are a Marxist/Leninist you said: "To an extent, yes", and the words: "To an extent" came out rather softly. Did you say that? --- Yes.
Now, what do you mean, "to an extent"? Can you clarify to what extent? --- I mean to the extent that I understand Marxism/Leninism, because he was talking about Marxist/Leninist in the theory of it.
NO FURTHER QUESTIONS BY MR YACOOB
- - - - - - - - - - - - - - - - - - - - -
CASE FOR THE DEFENCE
- - - - - - - - - - - - - - - - - - - - -
PROSECUTOR: Your Worship, it is clear that we will not be finished within minutes. I would actually like to reconsider my position and decide whether or not it is necessary for me to call any witnesses. If I could be given that time overnight, it might curtail these proceedings considerably. In addition, I have also just been informed that I am requested to make some urgent phone calls. Could this matter be adjourned until tomorrow morning, perhaps, half past nine?
COURT: Is that the earliest that we can proceed tomorrow?
PROSECUTOR: Would 9 o'clock suit your Worship better?
COURT: Yes, I would prefer to start as early as possible. Mr Yacoob, would 9 o'clock suit you?
DISCUSSION ENSUES REGARDING TIME OF RESUMPTION
COURT: Accused, this application is adjourned until tomorrow morning at 9 o'clock in this Court. You will be kept in custody until such time.
PROSECUTOR: .. (inaudible) in the Westville Prison, sorry, I should have asked for that earlier.
COURT: You will then be detained at the Westville Prison. Mr Prosecutor, could you perhaps furnish me with a list of the addresses that you were referring to where all these dwellings are situated?
PROSECUTOR: We will do so.
PROCEEDINGS ADJOURNED TO 1990/08/23
- - - - - - - - - - - - - - - - - - -
PROCEEDINGS RESUMED ON 1990/08/23
APPEARANCES AS BEFORE
PROSECUTOR: Your Worship requested yesterday that we furnish a list of the addresses that were referred to. I have such a thing.
COURT: Thank you, very much.
PROSECUTOR: Then, we have made a list, for the Court's convenience, of the exhibit numbers and which items they refer to. We took the liberty of re-numbering what had originally been Exh 4A to 4C, we have called them Exh 4, 5, 6. It would seem more sensible. It should not cause any inconvenience and we have photocopies, a set arranged in order, which might be of assistance.
MR YACOOB: During the course of last night, it occurred to me that it was necessary for me to ask the accused one further question in re-examination. The re-examination yesterday, the cross-examination was quite quick yesterday and I would like leave to ask (intervention)
COURT: Do you wish to recall him?
MR YACOOB: Thank you very much.
SIPHIWE NYANDA (SWORN STATES IN ENGLISH)
RE-EXAMINATION BY MR YACOOB: (Continued)
I just want to ask you one question, Mr Nyada. You said that had you not been arrested by the police in terms of section 29, you would not simply have given yourself up to the police, is that correct? --- Yes.
I want to pose one question to you in relation to that. Let us assume that you were on the run and let us assume that Comrade Nelson Mandela or some structure in the African National Congress above you communicated to you an instruction that you should give yourself up to the police, what would you do then? --- I would.
NO FURTHER QUESTIONS BY MR YACOOB
- - - - - - - - - - - - - - - - - -
CASE FOR THE STATE
- - - - - - - - - - - - - - - - - -
MR YACOOB ADDRESSES COURT
PROSECUTOR ADDRESSES COURT
MR YACOOB ADDRESSES COURT
COURT: I have not had time to peruse all the documents. I had other commitments last night, with the result that I have not had the time to peruse all the documents. Mr Yacoob, you indicated yesterday afternoon that you have certain commitments yourself today.
MR YACOOB: Yes, that is so, except this, that if your Worship is not going to require any further argument, then my attorney could note the judgment. Of course, I will have to discuss this with him. If your Worship would not mind that what I, in fact, have is a meeting of the university, on which the council of which I am and I would like to be there, if possible.
COURT: Mr Blomkamp and the attorney, of course, will it be convenient for you to resume at 2 o'clock again?
PROSECUTOR: Unfortunately, it is very difficult for me. I have a previous commitment at 2 o'clock.
COURT: I will try then to be ready by 12 o'clock, will that suit you?
PROSECUTOR: 12 o'clock would suit me.
COURT: Mr Attorney, will that suit you? 12 o'clock? The Court will then adjourn until 12 o'clock.
COURT ADJOURNS
- - - - - - - - - - - - - - - - - - - - -
COURT RESUMES
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
COURT: This is an application for bail on behalf of the accused, Siphiwe Nyanda, 40 years of age. He is represented by Advocate Z N Yacoob, while Advocate P J Blomkamp from the Attorney-General's office appeared for the State.
The accused faces three counts under the Arms and Ammunition Act, 75 of 1969. In count 1 it is alleged that he contravened section 32 (1) of the said Act as he was in possession, or it is alleged that he was in possession of a Stechkin machine gun, a machine rifle, a submachine gun, three mini-limpet mines, two limpet mines, one hand grenade, a quantity of accessories for the use with grenades, mini-limpet mines and limpet mines, consisting of detonators, time-delay fuses, timing mechanisms, et cetera. In count 2 it is alleged that he possessed three Maharov pistols in contravention of section 2 of the Act, and on count 3, it is alleged that he was in illegal possession of 182 rounds of 7,62 mm ammunition, 152 rounds of 9 mm ammunition and 75 rounds of 7,65 mm ammunition, in contravention of section 36 of the Act.
The accused testified under oath in support of the application for bail, while the State did not tender any evidence.
The accused, especially under cross-examination, revealed the existence of a rather sophisticated operation named Vula, which operation proceeded to organize an armed struggle, while the Government and the ANC were busy negotiating for a peaceful resolution. The viva voce evidence by the accused and the documentary exhibits handed in during the cross-examination of the accused unfolded the following picture.
The accused served in Umkhonto we Sizwe, being the military wing of the African National Congress, since 1977, where he became a commander. During 1988, he entered the Republic of South Africa illegally and since then he secretly carried out his duties as commander in charge of a unit or, as he put it, he carried on underground. At the time of his arrest they were busy with establishing an arms pile up. In the process he obtained several hide-outs or what is commonly termed, safe addresses, by renting three houses in Durban, namely one at 42 Avoca Road, Avoca, one at 48 "The Knoll", Kenville, and one at 70 Westview Road, Greenwood Park. His unit also used a flat in Sydenham as an office. He also had the keys to a house situated at 398 Annet Drive, Reservoir Hills.
The accused was in possession of four passports under the names of Denis More, issued in Lesotho, Ray Peterson, Richard O'Rielly. On the photographs contained in all these documents the accused was disguised by, inter alia, making use of wigs, spectacles and false moustaches. He maintained that he used these passports to travel freely and undetected. In the accused's briefcase the police found R30 000,00 in cash, as well as some notes of foreign currency for various states. At the house in Avoca Road the police also found modified petrol tanks for a Mercedes Benz and a Cressida. The accused explained that the tanks were used to smuggle arms and ammunition from Botswana into the Republic. This was done on numerous occasions.
At the Avoca Road address and "The Knoll" house, vast amounts of computer equipment was found, as well as the computers for it. From the accused's evidence, it emerged that this equipment enabled him to be linked up with his associates in Johannesburg, as well as overseas. The data on the disks reveals, for example, that in one instance his associates in London made the arrangements for him for an arms pick-up in Botswana. They also made use of a courier from Amsterdam. They also operated under code names, et cetera.
I do not propose elaborating on this any further save to mention that within hours after the accused, after his arrest, had pointed out the house of an associate in Johannesburg, she disappeared and could not be traced yet. His other associates went into successful hiding with relative ease.
Against this background, the Court must consider the application that the accused be released on bail. The only question to be considered really, is whether the accused will stand his trial or not. The charges he is faced with are serious and carry heavy penalties, namely on count 1, 25 years, on count 2, a possible term, and on count 3, a further term.
Mr Yacoob quite rightly argued that the maximum penalties must not be over-emphasized. On the other hand, one cannot lose sight of the fact that the accused may well face heavy sentences upon being convicted, especially against the background set out above.
Our Courts are set upon protecting the liberty of the people, therefore a Court will always grant bail wherever possible, but in exercising its discretion the Court must also balance the accused's rights to liberty against the interests of justice, because if the accused does not stand his trial then justice will be prejudiced. If there is any recognizable indication that the accused will not stand his trial and the Court still releases him on bail, then the Court will not serve the needs of justice. The severity of the sentence is a factor that will certainly pose a temptation to the accused not to stand his trial.
The ease with which his associates disappeared and the avenues open to him to flee the country or going into hiding or disguising himself are further indications that the accused may abscond.
Against this, the Court only has the accused's undertaking that he will not abscond. Surely, it cannot be expected of him to come to court and declare that he, in fact, will abscond, because that will deny his application. The onus is on the accused to satisfy the Court on a balance of probabilities that he will stand his trial. Mr Yacoob submitted that he was a reliable witness, but I daresay that he was rather evasive at times and also contradicted himself on other occasions. In S v Maharaj and Others, 1976 (3) SA 208, (Durban and Coast Local Division), MILNE J, as he then was, applied the norm of:
"A probability or at least a possibility that the accused will abscond."
And refused the bail on a finding that there was:
" at least a reasonable possibility that the accused, if released on bail, would attempt to obstruct or hinder the administration of justice."
Having regard to all the facts and circumstances placed before me, this Court is satisfied that there indeed exists a strong possibility that the accused will abscond. Hence, his application for bail is refused.
- - - - - - - - - - - - - - - - - - - - -
PROSECUTOR: May the matter then be adjourned to the 29th October for trial in V Court and may the accused be remanded in custody to the Westville Prison.
COURT: 29 October, V Court.
PROSECUTOR: Yes, your Worship.
COURT: Will that be for trial or provisionally?
PROSECUTOR: For trial.
COURT: In custody at?
PROSECUTOR: Westville Prison.
COURT: Accused, your case is postponed until the 29th October in V Court, for trial. You will be kept in custody at the Westville Prison.
PROCEEDINGS ADJOURNED TO 1990/10/29