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Amnesty Hearings

Type AMNESTY HEARINGS

Location CAPE TOWN

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CHAIRPERSON: Yes, Mr Prior?

MR PRIOR: Mr Chairman, the witness Sibaya is available, would this be an opportune moment to call him as I understand that Miss Qunta is present for that purpose.

CHAIRPERSON: Yes. Where will he give evidence from?

MR PRIOR: Mr Chairman, I understand what occurred in a previous hearing or amnesty application - from the chair behind the applicants.

CHAIRPERSON: Will you see to it that thereís a speaker there for him?

Mr Sibaya, will you come forward?

CHAIRPERSON: Ask him for his full names.

INTERPRETER: We request that the interpreters be given a moment to change booths because of the position of the witness.

CHAIRPERSON: Tell me when youíre ready.

ADV SANDI: No English Translation.

MR SIBAYA: Yes, I can hear.

ADV SANDI: Could you give us your full names please?

MR SIBAYA: Bennet Sibaya.

INTERPRETER: Could the witness please repeat that.

MR SIBAYA: Bennet Sibaya, I stay at NY72 number 52.

ADV SANDI: Could you please stand up Mr Sibaya. We are going to swear you in Sir.

INTERPRETER: The speakerís mike is not on - the witnessí mike is not on.

ADV SANDI: The witness has been sworn in.

COMMITTEE: Discusses microphones - witnessís microphone is not on.

ADV SANDI: Mr Sibaya, do you swear that the evidence youíre going to give here is the truth?

MR SIBAYA: Yes, That is so, Sir.

ADV SANDI: Will you please get up when you are taking the oath.

BENNET SIBAYA: (sworn states)

EXAMINATION BY MR PRIOR: Thank you Mr Chairman. Mr Sibaya ...[intervention]

MS QUNTA: Mr Chairman, could I perhaps interrupt. I wasnít aware that weíre going to go straight into leading the witness, there are one or two things I would like to bring to the Committeeís attention.

INTERPRETER: If we could be given a moment, the interpreters are having a problem with the equipment in this booth - please?

Thank you, we may proceed.

MS QUNTA: As I was saying Mr Chairman, I would like to be given the opportunity to say something before the witness is being led by Mr Prior, with your permission.

CHAIRPERSON: Why?

MS QUNTA: Because I think Mr Chairman, there are certain anomalies about this matter which I think itís in the interest of my client to bring to the attention of the Committee now because that will give the Committee a background to what I am going to ask the witness during cross-examination. For instance Mr Chairman, I would like to find out from the leader of evidence why my client is here, why my client was served with a Section 19 notice.

On the evidence before us that we have been provided by the leader of evidence, by the Committee, there is absolutely no reason why my client should be here and I would like a statement from the leader of the evidence before we proceed. I would like to draw the Committeeís attention to Section 19, Sub-Section 2 of the Act and Sections 30, Sub-Section 2 because thatís very, very pertinent to what Iím about to say - if you will allow me Mr Chairman, to proceed.

CHAIRPERSON: Yes, please do.

MS QUNTA: Thank you Mr Chairman. I will draw the attention of the Committee to Section 19(2). That refers to the Committee investigating an application for amnesty and it says that in respect of an investigation carried out under Section 19, the provisions of Sub-Section - of Section 30 Sub-Section 2 should be complied with. Now that Section 30(2) deals with a person who is implicated in an application for amnesty and I will read Section (a) of Sub-Section 2

"If during any investigation by or any hearing before the Commission, any person is implicated in a manner which may be to his detriment"

And I want to emphasise the word: "to his detriment" in (a). (b):

"The Commission contemplates making a decision which may be to the detriment of a person who has been so implicated"

Now that to me and to any person who has any legal training, suggests that a mere mention of a person in an uncorroborated statement, is not sufficient to implicate a person. Itís on that basis that I want the leader of evidence to explain to the Committee and to my client why on the basis of one solitary statement which gave rise to an investigation which was inconclusive, my client was brought before here.

Itís quite important because what has happened in fact - if there is no sufficient explanation, there are issues I want to take up but I will give the leader of evidence an opportunity to respond to my response. In terms of the reading of that Section and the definition of what implicated means, my client shouldnít be sitting here.

The investigation unit - apart from my client whom I think the Committee knows is the head of investigation and he recused himself from this investigation. The second statement which was made by the witness here has very serious contradiction and inconsistencies with the first statement. None of the things mentioned in the first statement were - could be said to link my client or my clientís vehicle in any way to the Heidelberg Tavern attack unless there is a victimisation of my client or incompetence within the section that deals with leading of evidence and we need an explanation Mr Chairman.

I donít believe that in any way my clients presence here - and I want the leader of evidence to answer, does my clientís presence and the bringing of the witness here, does it advance the case of the applicants in any way? Secondly, if it doesnít advance the case of the applicants, does it hamper their case or does it show in any way that they should not be granted amnesty? Does it counter their amnesty application? I need an answer.

CHAIRPERSON: Mr Prior?

MR PRIOR: Well Mr Chairman, Iím not in a position at this stage - there are so many questions now being put by my learned friend, suffice to say that on the documentation at the disposal of the investigating unit, her client was implicated as is envisaged by the section.

CHAIRPERSON: Is he implicated in the commission of the offence by the applicants?

MR PRIOR: The information that was gathered by the investigating unit was to the effect that a vehicle was seen with a registration number which was linked to my learned friendís client. The suggestion or the probabilities of this and the circumstances surrounding that piece of evidence seem to be linked, on the probabilities, to the Heidelberg Tavern incident.

That information was contained in an affidavit and it was investigated by the investigating unit and I understand that Mr Ntsebeza at some stage was aware or became aware of that investigation and certain things were done. I donít know exactly what investigations were done but when I came on board - that is on the 1st of October, I became aware through handling the Heidelberg case that there was this information.

And because he was implicated in - by a witness, in the circumstances which suggested that his vehicle was used to convey automatic weapons away from the scene, he was deemed to be implicated and he was given notice via Mr Mpshe. It was dealt with on that level, and up until today there has been no indication that there was any objection to that procedure being followed or any objection to anything that was done by the investigative unit or the amnesty department, so I canít add anymore than that at this stage Mr Chairman.

CHAIRPERSON: So the decision to issue a notice was done by you but by Mr Mpshe?

MR PRIOR: It was done in consultation with all the senior officials of the Amnesty Department.

CHAIRPERSON: Yes, but Iím saying that you didnít do it, it was Mr Mpshe who did it?

MR PRIOR: It wasnít my decision solely, it was - as evidence leader, it was brought to the attention of Mr Mpshe and it was discussed at that level.

CHAIRPERSON: Yes, now just tell us - youíve been referred to the relevant section of the Act at Section 30, Sub-Section 2. On your reading, is the position that Mr Ntsebeza can be described as an accomplice or an implicated person?

MR PRIOR: Certainly Mr Chairman, it says

"If during any investigation...."

It doesnít say anything other than during an investigation any persons implicated in a manner which may be to his detriment, I think the wording is simple. The reference to a vehicle belonging to Mr Ntsebeza, which possibly may have been linked to the Heidelberg Tavern I submit is sufficiently detrimental to him and the Act required that he be given notice.

CHAIRPERSON: Is there anything else you wish to say?

MR PRIOR: Thereís nothing at this stage Mr Chairman.

CHAIRPERSON: Well, not at this stage but at - is that your complete answer?

MR PRIOR: That is my answer yes, unless thereís anything else required of me.

CHAIRPERSON: Before the Committee adjourns to consider this matter, is there anything else you wish to say?

MS QUNTA: Yes, Mr Chairman. Mr Prior is - Iím not suggesting in any way that Mr Prior is the only person who made this decision, Iím saying as a legally trained person, when you say: "implicated" and you look at the definition in 32, you canít go on one statement. This statement was by a witness, that statement - when you read that statement, it in no way links my client to the Heidelberg incident, it in no way does that and one does not have to be legally trained to see that.

And I will go through that Mr Chairman, what I would like to say now and raise this with - none of the applicants here - and they were asked by their counsel, none of them knew Mr Ntsebeza except perhaps from - as one of the applicants said, from the television that he is connected with the Truth Commission. Each of the applicants said they had no dealings with an Audi, so the people who are here who are directly involved in that attack have said they do not know.

Now, when you look at evidence, I think what you do as a legally trained person and that is why I believe in the Amnesty Committee, everyone is a legal person so that you can weigh up the validity and the weight of the evidence before you and you look at the totality of the evidence, you donít simply look at one aspect and you see whether that evidence is sufficient to make an inference that someone may be implicated. In this instance itís my submission that there was no basis for calling my client and there may be another reason, there may be another reason which Mr Prior is not privy to why my client was called here but it is quite important for me to raise this.

JUDGE WILSON: If one looks at the totality, mustnít one look at the evidence of this man? Isnít that part of the totality?

MS QUNTA: Mr Chairman, it is one aspect of evidence. I can imagine that the Amnesty Committee will sit for the next five years if when they conduct an investigation ...[intervention]

CHAIRPERSON: Why do you say such horrible things?

MS QUNTA: Mr Chairman, I imagine that the Committee will sit for the next five years if when there is an incident and an investigation, that each and every statement which mentions a person - no matter how flimsy and how unsubstantiated the evidence is, that each and every person must be notified and be brought before the court.

And what is particularly regrettable in this instance is that it has been done in such a way which raises certain inferences with regard to my client and his involvement with this which I think is very unfortunate.

CHAIRPERSON: They will not be taking into account the way in which this is done because you are talking in general terms. Weíll only look at the Act to find out whether the Act permits the issue of a notice on your client in the present circumstances. Weíll take a short adjournment to consider that matter.

MR PRIOR: Mr Chairman sorry, may I be of some assistance?

CHAIRPERSON: Yes.

MR PRIOR: The second bundle of documents, the supplementary bundle at page 6, if I can bring that to your attention.

CHAIRPERSON: Just hold it. Yes?

MR PRIOR: And if I can refer the panel to paragraph 5, that is the investigating report regarding this specific incident of the vehicle. I donít know if you want me to read it out, it is self-explanatory.

CHAIRPERSON: No, you just refer us to it.

MS QUNTA: Could I just get clarification Mr Chairman - Mr Prior, what is he referring to - which bundle?

MR PRIOR: The supplementary bundle, page 6 of that bundle.

CHAIRPERSON: You donít have that?

MS QUNTA: I donít have that Mr Chairman.

CHAIRPERSON: You will have that.

MS QUNTA: Unless - Iíve got some loose papers that were provided to me ...[intervention]

CHAIRPERSON: This is a document headed: "Report of the Investigative Unit (Final)", dated 8 September 1997, do you have that document?

MS QUNTA: I will - yes, Mr Chairman, I have it and that is investigator John Lubbe.

CHAIRPERSON: Yes.

MS QUNTA: I do have that.

CHAIRPERSON: Youíre referring to what paragraph?

MR PRIOR: To paragraph 5 - that was supplied to Miss Qunta some time ago.

CHAIRPERSON: Yes.

MR PRIOR: And it simply says that efforts were made to corroborate or to check with the applicants but any interview was refused without a PAC delegation being present, so Mr Lubbe certainly attempted to verify the accuracy of what Mr Sibaya was saying with the applicants before the hearing.

And if the Committee is also alive to the fact that it was impossibly to gauge from the applicants themselves until they gave evidence because we didnít know what their submissions were. Thank you Mr Chairman.

CHAIRPERSON: The Committee will adjourn to consider this matter.

COMMITTEE ADJOURNS

ON RESUMPTION

BENNET SIBAYA: (s.u.o.)

ADV ARENDSE: Mr Chairman?

CHAIRPERSON: Yes, Mr Arendse?

ADV ARENDSE: I wanted to say something just before the Committee adjourned to

consider this issue - I just want to mention two things, may I do so?

CHAIRPERSON: Very well.

ADV ARENDSE: Mr Chairman, firstly it seems to me that Section 32 should not be considered in isolation and that what brings into play 32 in an amnesty matter, is an application which is made in terms of 19.1 of the Act. In other words where someone is implicated as a result of an application for amnesty which is submitted in terms of Section 19.1. Now, clearly thereís nothing on the application forms that implicates Mr Ntsebeza.

I acknowledge what Mr Priorís saying that in some respects - in respect of Madasi and Mabala, that these forms do not contain sufficient information but even then during the course of this proceeding if his name had cropped up, then it would be appropriate that the proceedings be stopped and that an implicated person then be given the warning that is required by 32 - thatís the first thing.

JUDGE WILSON: But itís not a warning, itís an opportunity for him to come and make representations before the hearings.

CHAIRPERSON: Heís not obliged to be here.

JUDGE WILSON: 32 is before the hearing, itís during the investigation isnít it? If during any investigation or hearing ...[intervention]

ADV ARENDSE: My point is quire simply this and I donít want to take it any further and undermine whatever your deliberations were Mr Chairman, my point is simply that 19.1 kicks in 32, itís not in isolation, itís only when your name is mention in an application form and this was not the case. Mr Ntsebezaís name did not crop up as a result of any - it couldnít have, obviously it couldnít have and we now know the evidence of the applicants has been given.

JUDGE WILSON: How can you say that Mr Arendse, when 32 says: "If during any investigation", that is not considering the application is it? Thatís if as a result of an investigation ...[intervention]

ADV ARENDSE: With respect Mr Chairman, - as a result of 19.2, thatís what Iím saying. 32 is as a result of 19.2, 19.2 is as a result of 19.1 which an application for amnesty.

ADV SANDI: Mr Arendse, is this not exactly the situation Section 32 was designed to deal with? And can I hear from you what youíve got to say about the AD decision on this very point? There was a decision by the AD some time, I think early this year. I do not have the exact reference of this case, I think it was du Preez and du Plessis, versus Mthimkulu where the AD had an occasion to express itís views on the interpretation of this section here.

Are you not dealing with a Section 32 situation here, where a personís name has been mentioned and that person has been given an opportunity to refute what has ...[inaudible] about him, it doesnít have to be said by the applicant.

ADV ARENDSE: With respect, I ...[intervention]

CHAIRPERSON: Miss Qunta, do you have reference to that Appellate Division Judgment with you here?

MS QUNTA: No, Mr Chairman, I do not but I donít pre-empt my learned friend here but I think the point that heís trying to make and which we were not able to make prior to your adjournment, is that in fact itís the applicant - it is the applicant that has to implicate. Now I appreciate it that in some - obviously if youíre going to have an investigation and someone other than the applicant raises a very serious point and thereís lotís of evidence, you canít ignore that simply because of Section 19.1.

But I think the point here is that itís the applicant that has to implicate the person that has to be notified and here in this - the applicants in fact specifically denied any knowledge of this thing, they did this in paragraph 6 and paragraph 7. Mr Madasi was interviewed at Victor Verster prison on the 25th of July Ď97 and he denied - he confirmed what the operational vehicle is, that is the document we looked at prior to the adjournment Mr Chairman, and he denied two, three days later at an entirely different venue in the Free State or in Bloemfontein.

Mr Gqomfa was approached and he also said that he doesnít know anything about an Audi, so what we are saying is that the applicants not only doesnít mention an Audi, they specifically deny both in their early evidence and here at the hearing and itís on that basis that Iím saying there was not sufficient evidence.

On a proper reading of 19, Section 19 (1) and (2) and Section 30 (2), our view is that there was not sufficient reason to serve a notice on our client in terms of Section 19 and thatís all Mr Chairman. Perhaps what I would like to say now is that I will leave it to you, I would like to perhaps - once youíve informed us of the decision that you have made, I would just like to make one brief sentence before we can proceed but I will hand it over to you now.

ADV ARENDSE: Mr Chairman, then the other aspect is that ...[intervention]

CHAIRPERSON: I wish these arguments had been addressed to us before we adjourned.

ADV ARENDSE: I did indicate Mr Chairman. The other aspect is this - is that we are here now, the witness is here and thereís at least one good reason - one compelling reason why we should ventilate this matter fully and that is the public interest regardless of the decision that is going to be given. Lotís has been made of this, his - Mr Sibayaís statement has been leaked to the press, itís public knowledge and I think thatís a good enough reason for the matter to be ventilated properly here today. And we had - Iím saying this because we had the opportunity of discussing this from this side - from the bar and the side bar, to discuss this matter and we are - thereís consensus amongst us here that we should proceed.

CHAIRPERSON: Is that so?

ADV ARENDSE: Yes.

MS QUNTA: Yes, Mr Chairman, subject to one thing I can just add. I would like, like Advocate Arendse says, the matter is of public interest, thereís been various press leaks leading up to this hearing and itís now important that the matter be raised but I want to state quite categorically on behalf of my client, that I do not believe that my client should be trial here or he should - this is an amnesty application, itís not a place for my client to be vindicated. He should have been brought to trial if there was evidence that in any way he was implicated - which we deny, he should have been brought to a criminal trial and ...[intervention]

CHAIRPERSON: I think Iíd better put a stop to this please.

MS QUNTA: Yes. Mr Chairman, sorry?

CHAIRPERSON: Your client has not been compelled to come here, do you understand? I have before me the notice which was served on him in terms of Section 19.4, it says

"Take further notice that as a person implicated in the application, you have the right to be present and to be represented by a legal representative at the hearing and to testify, adduce evidence and submit any article to be taken into consideration"

In other words please understand, your client has not been told that heís required to be here. This notice says that he has a right to be here if he chooses or wishes to be here. Do you understand? He cannot be compelled to be here and he is not being compelled to be here.

MS QUNTA: With respect Mr Chairman, I really would not like to engage in a long debate about this but it is very important for my client, particularly in view of the standing of client in the community.

CHAIRPERSON: I understand the standing of your client and Iím puzzled as to why he should find it necessary to come here, when all this notice says to him

"That you have been implicated, you have a right"

Do you understand? We are of the view that Mr Ntsebeza doesnít have to be here. If he chooses to be here, well and good. If some evidence is going to be led, no matter how tenuous that evidence may be against him, it Mr Ntsebeza chooses to challenge that evidence he will have a right to do so.

MS QUNTA: Mr Chairman, thatís why I said with respect, I think in view of what has transpired after the notice was issued, particularly since it was leaked to the press Mr Chairman, it is very crucial and itís now in the public domain and Iím not suggesting that my client is compelled Mr Chairman, I agree with you.

Heís in fact not compelled to be here but what we - Iíve queried first of all the fact of the matter of him being sent that notice, thatís the first thing. The second thing is, now that the witness is here we are prepared to listen to the witness and take this matter for the benefit of the public because it has become a public issue.

CHAIRPERSON: Iíd like to express a purely personal opinion in the matter. When I heard that Mr Ntsebeza was being involved and he was going to be here, I didnít see the relevance of his presence to the application for amnesty - thatís a purely personal view Iíve had on the matter and I havenít been persuaded that Iím wrong in that regard. However this witness is here - Mr Ntsebeza, since you say that this has now become a matter in the public domain and it has unfortunately received publicity, please understand that if it has reached the press, it isnít as a result of the activities of this Committee, we have no hand in all this. And to the extent that it gets publicity, I personally regret that that has happened but let us proceed now so that this chapter is brought to finality and to a conclusion without wasting too much time.

CHAIRPERSON: Will you lead this evidence, heís been sworn in already.

MR PRIOR: Thank you Mr Chairman. Mr Ntsebeza, is it correct that you made a statement ...[intervention]

ADV SANDI: Mr Sibaya.

CHAIRPERSON: Mr Sibaya.

MR SIBAYA: Are you referring to me?

EXAMINATION BY MR PRIOR: Sorry, thatís the second one today Mr Chairman, I apologise.

Mr Sibaya, is it correct that you made a statement to the murder and robbery unit in Bellville South on the 5th of January 1994?

MR SIBAYA: That is correct Sir.

MR PRIOR: And during August of 1997, you were interviewed by a Mr John Lubbe who was an investigator with the Truth and Reconciliation Commission - the Amnesty Committee and you made a statement as result of his investigation?

MR SIBAYA: That is correct Sir.

MR PRIOR: I want you to tell this Committee what you recall and what you told the police in your statement and Iím purposely not going to lead you on any aspect of that unless you ask for assistance. Could you proceed and tell your story.

MR SIBAYA: About what happened that day, is that where you want me to start?

MR PRIOR: Start from the beginning yes. Tell us where you were, when you were there, what time you were there and what you saw.

INTERPRETER: The interpreter did not hear the first few words.

CHAIRPERSON: Please ...[intervention]

MR SIBAYA: It was in 1993 on the third year, we were in Guguletu with my friend. I was going to visit my girlfriend but I did not know the area well so I got a bit lost. We eventually ended up in a house where we asked a lady ...[intervention}

INTERPRETER: Could the witness please slow down.

MR PRIOR: Mr Sibaya, could you just slow down a little bit. Yes, you said you went to Guguletu, you were looking for your girlfriend where she stayed and you got lost in that area.

MR SIBAYA: The taxi driver did not know the area well - it was the first time I had gone there, it was after midnight. We were supposed to go to NY141, we ended up in 114. When you go to 129 you go across 115 so we also ended up in 129, is that clear?

MR PRIOR: Yes. Where did your girlfriend stay? What was the address you were looking for?

MR SIBAYA: 141 at 67 but my friend said 114, thatís where the mistake was and thatís why we ended up where we did.

MR PRIOR: Do you have a statement in front of you?

MR SIBAYA: Yes, I have.

MR PRIOR: Are you referring to that statement?

MR SIBAYA: No, Iím just telling you what happened on that day.

CHAIRPERSON: Yes, just continue to tell us what happened.

MR SIBAYA: When I realised that weíre spending a lot of time being lost, I ended up at this house where there was a white car. I asked at the car where this number was that I was looking for - when I got there I realised that because of the registration, there was no to ask him because this car was from the homelands ...[intervention]

INTERPRETER: Could the witness please slow down.

CHAIRPERSON: Just slow down so that the interpreter can interpret.

MR SIBAYA: May I continue?

CHAIRPERSON: Yes, you may continue.

MR SIBAYA: I knocked at the door of the house, a lady opened and she directed me to 141, she then told me that that was NY129. We realised that we were mistaken, I then went back to my friend telling him that we should give up - went back to the combi. I did not know this area very well, it had been the first time I had gone there.

MR PRIOR: Yes, proceed.

MR SIBAYA: When I went to my friend - as we were leaving, we were giving up. It was at night, I saw these children coming - I thought they had pipes in their hands however when they were closer I realised that those were not pipes but weapons.

MR PRIOR: Just stop there. Yes, you noticed these were weapons?

MR SIBAYA: When they were far from me I thought these were pipes but when they came closer, I realised that these were guns. I then said to my friend that - my friend, that they must hide in the combi, I also tried to hide. They then put these weapons in the white car. After they had put the weapons in, they argued. They were not talking loudly however the one said Madasi you forgot the cap in the car, I did not know what car they spoke of.

The car then left, there were people in the car and some were left behind. This car - the lights were not switched on, the brakes were applied and then I saw the registration. I then committed this to memory ...[intervention]

MS QUNTA: Mr Chairman, could I ask the witness to go slow, I mean I canít follow him either in Xhosa or in English because itís just too fast.

CHAIRPERSON: Mr Sibaya, please try and talk sufficiently slowly so that notes can be made of what you are saying.

MR SIBAYA: Where should I start?

CHAIRPERSON: Carry on from where you were.

MR SIBAYA: We then waited so that they go away. After a while I noticed that where the car was there was a paper, I picked it up and read it. I realised that these people did not know their destination. This paper had a map on it, it was a map to Heidelberg ...[intervention]

INTERPRETER: The interpreter did not hear the details of the map.

JUDGE WILSON: Mr Prior, donít you think it would help if you would start leading this witness and taking him through stage by stage rather than letting him just ramble on like this. I can see the difficulty people are having trying to note down what heís saying, particularly those who are going to have to question him. Canít you assist by leading your witness?

CHAIRPERSON: I think there is a danger in leading him.

JUDGE WILSON: Well I donít think he has to put things to him but he can say: "stop here, stop here, stop here".

MR PRIOR: Mr Chairman, if the witness could look in my direction then I could possibly give him an indication to stop or pause.

CHAIRPERSON: This is most unsatisfactory. Mr Sibaya, can you look at me please. I want you to talk in such a way - slowly, so that we can write down what you are saying, do you understand? When you talk too fast we canít follow what you are saying so please, just exercise a little patience because what you are saying is very, very important. Carry on.

MR SIBAYA: I will start where I left off.

MR PRIOR: You were telling the Committee that you noticed that there was a paper that was dropped, you picked it up and you saw that there were certain things written on that paper. Just tell us slowly what was written on the paper.

MR SIBAYA: It was a map that when you leave Observatory, you turn right then you go past Hartleyvale Stadium.

MR PRIOR: Please look at me - continue, continue.

MR SIBAYA: After Hartleyvale you turn left, you go past a bridge and after the bridge Heidelberg is on your right.

MR PRIOR: What did you do with this paper?

MR SIBAYA: I gave the paper to the Guguletu police.

MR PRIOR: Before you went to Guguletu police, what was the next thing that happened after you had picked up the paper?

MR SIBAYA: We were already leaving when I picked the paper up, we were going to the police.

MR PRIOR: Yes?

MR SIBAYA: Our statement was such that a car was being stolen and ammunition from the soldiers was being stolen. Our destination was then disturbed because we had to go to the police.

MR PRIOR: So you thought that these weapons had come out of a soldierís vehicle, is that correct?

MR SIBAYA: That is what I thought. The darker car I could not see, I only saw it or noticed it when they were getting out of the car. Another matter was that the white car did not have a Cape Town registration. I thought that perhaps this car belonged to people that were travelling and it was being stolen at the time, or had been stolen.

MR PRIOR: Did you notice the registration of the white car?

MR SIBAYA: The white car?

MR PRIOR: Yes.

MR SIBAYA: I memorised it, I know it to this day.

MR PRIOR: Tell us.

MR SIBAYA: Pardon?

MR PRIOR: Tell us please.

MR SIBAYA: The white car was XA12848, did you hear that?

MR PRIOR: Yes, thank you.

MR PRIOR: You say you noticed a dark coloured vehicle and you noticed these boys or these children as you referred to them, getting out of that vehicle?

MR SIBAYA: I only noticed the darker car when they were getting out of the car. I saw the white car because it was - the colour was light enough to see. Another thing, the white car was facing towards the South and the darker car towards the north, however they were quite a distance from each other.

MR PRIOR: From that point when the white car had moved off, where did you then go?

MR SIBAYA: We waited until the car had left - a while after it had left, however even though the lights were not switched on he had to apply his brakes and then I saw the registration number - I memorised the number. I took the piece of paper that Iíd picked up to the police.

MR PRIOR: Just slow down. Was that to the Guguletu police station?

MR SIBAYA: We were already there yes. Our report or statement to the police was that a car belonging to soldiers was stolen together with weapons. I showed them this piece of paper, I also told them that the other car was not from Cape Town - perhaps it had been stolen as well.

MR PRIOR: Did you give them the paper?

MR SIBAYA: I gave them the paper.

MR PRIOR: What was their reaction to this information?

MR SIBAYA: They said that there is no Heidelberg there, Heidelberg is up country.

MR PRIOR: Yes, then what happened?

MR SIBAYA: They then also said that the soldiers would not just leave their weapons in the car.

MR PRIOR: Yes, and then what happened?

MR SIBAYA: They took our names and addresses, they said that weíre probably drunk, we must go home. They tore the paper and put it in the bin.

MR PRIOR: Did you then leave?

MR SIBAYA: We were told to go home and sleep because we were drunk they said. When I came back from work ...[intervention]

MR PRIOR: So did you go home? Did you go home after that?

MR SIBAYA: I went home to sleep.

MR PRIOR: All right, then what was the next thing that happened?

MR SIBAYA: After work my children said a man from the murder and robbery unit came and was looking for me.

INTERPRETER: The witness is going too fast.

MR PRIOR: Just slow down please, Mr Sibaya.

MR SIBAYA: He said that I would be in trouble, I must go to the police station, they want to ask me a few questions.

MR PRIOR: Do you know who this policeman was, can you remember his name - if he gave it?

MR SIBAYA: I donít remember it, it was a long time ago. They did not take us seriously, they thought that we were drunk.

MR PRIOR: Now this policeman that came looking for you, did you go with them or did you go to the police station as a result of his visit? What is the position?

MR SIBAYA: This man came to pick me up the next day.

MR PRIOR: Yes.

INTERPRETER: I did not hear the last two words of the witnessís sentence, if he could repeat that please.

MR SIBAYA: He took me to Bellville South police station.

MR PRIOR: Had you ever been there before?

MR SIBAYA: No English translation.

MR PRIOR: Had you ever been there before?

MR SIBAYA: It was the first time - that day.

MR PRIOR: Right, what happened at Bellville South on that day?

MR SIBAYA: I was told to give details of what I saw that night. A few days had elapsed - I told them, they said that I must go fetch my friend - he refused.

MR PRIOR: Who refused?

MR SIBAYA: Mazibuko refused totally.

MR PRIOR: Was Mazibuko with you on the evening you saw this white vehicle with an XA registration?

MR SIBAYA: It was his combi, heís a big friend of mine - I had asked him to drive me.

MR PRIOR: All right, so he refused to come to the police station?

MR SIBAYA: Yes, he totally refused.

MR PRIOR: Did you make a statement on that occasion - to the police at Bellville South?

MR SIBAYA: I told them everything that I had seen that night.

MR PRIOR: Were you able to describe any person that you saw in the street, at or near either the dark vehicle or the white coloured vehicle?

MR SIBAYA: I said to the police there was people that arrived with weapons. I could not identify them because it was dark. I just heard one of them saying: "Madasi, you left a cap in the car". However, the one we had found in the car I told them it was a well built man.

MR PRIOR: Sorry, youíre referring to the one you found in the car, whoís that?

MR SIBAYA: It is the man that I found in the car, I said I could identify him to the police because he was well-built, hefty, around the age of 28 early 30ís.

MR PRIOR: Yes.

MR SIBAYA: The others however - because it was dark I could not see them clearly however they were young people, I canít identify them.

MR PRIOR: What sort of lighting was there to have identified - as you say you did, the person who was between 29 and 30, stockily built and so on? How did you see him - under what lighting?

MR SIBAYA: It was dark, I saw him because of our lights because we came close to him. You donít switch off the lights when you enter that street and the car was not far from us. I saw him and I looked at him carefully and I realised what kind of build he was.

MR PRIOR: Were you ever asked to go on an identification parade by the police?

MR SIBAYA: No. Mr Segal said that my statement was not clear, they could not get the car, the registration was probably false he said. However, he did come and fetch me from my home, took me to a judge and they said to me that they could not find this car - my statement was not clear they said.

MR PRIOR: Where was this Judge that you refer to, which ...[intervention]

MR SIBAYA: I think it was a man helping the Judge, an advocate perhaps. They said that I was not needed because my statement was not clear. My friend has passed away and had passed away - he was attacked.

MR PRIOR: When had Mr Mazibuko passed away?

MR SIBAYA: Three weeks after we were there.

MR PRIOR: Is that after you had seen the white vehicle at Guguletu?

MR SIBAYA: Correct.

MR PRIOR: How did he pass away?

MR SIBAYA: Apparently he was shot by youngsters in Khayelitsha - he was in his combi, the one we were using that night. They shot him and left him there.

MR PRIOR: Now you say, sorry - did you attend the trial of the three applicants in the Supreme Court in Cape Town?

MR SIBAYA: Which people are you talking about?

MR PRIOR: The applicants before the Committee in respect of the Heidelberg Tavern case.

MR SIBAYA: I did not go, I was told not to go - Mr Segal said I was not needed.

MR PRIOR: Please look at the statement which is marked 85, 86 and 87, look at page 87, can you identify that signature?

MR SIBAYA: That is my signature.

MR PRIOR: Do you confirm that you made a statement to Mr Lubbe during August of 1997, that is year? Please look at pages 88, 89, 90, 91 and 92, whoís signature appears at the bottom of those pages?

MR SIBAYA: That is my signature.

MR PRIOR: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR PRIOR

CHAIRPERSON: Mr Arendse, youíre not involved in this matter are you?

ADV ARENDSE: Iím glad to hear that. Seriously, I was going to suggest that maybe Ms Qunta should have first bite as it were at the witness ...[intervention]

CHAIRPERSON: Yes, I understand.

ADV ARENDSE: And then if thereís any questions that arise from that, if I could reserve sort of ...[intervention]

CHAIRPERSON: I realise that, I thought Iíd get you out of the way.

Ms Qunta?

CROSS-EXAMINATION BY MS QUNTA: Mr Sibaya, can I ask you how old you are?

MR SIBAYA: I was born in June 1940.

MS QUNTA: And your - where did you - at the time of this incident when you saw this vehicle, where were you living?

MR SIBAYA: At NY72, number 52.

MS QUNTA: And for how long had you been living there?

MR SIBAYA: A long time.

MS QUNTA: In terms of years, are you able to give me an idea in terms of years? How many years, two years, four years, ten years, twenty years?

MR SIBAYA: Three years.

MS QUNTA: And prior to that Mr Sibaya, where were you living?

MR SIBAYA: Before, I was staying at Zone 5, Langa.

MS QUNTA: Okay, and for how long were you staying there - at zone 5?

MR SIBAYA: More than ten years. We then had to go find our own places when residence ended there.

MS QUNTA: Okay, and before that you didnít stay in Guguletu prior to staying in Langa for that ten years?

MR SIBAYA: No.

MS QUNTA: Now, how - you say in your statement, on the night of the 30th you arrived in the vicinity where you saw this vehicle - this white vehicle, how did you get there?

MR SIBAYA: We had been getting lost for quite a while trying to find NY141.

MS QUNTA: And how did you get there though? How did you get to the place where you found this white vehicle?

MR SIBAYA: We were driving Mazibukoís combi - my friend.

MS QUNTA: Was the combi also used as a taxi? What did he do with the combi, was it a private vehicle?

MR SIBAYA: Yes it was a taxi, he used it as a taxi.

MS QUNTA: Okay. And where did he rank - where was the taxi used, between what were his routes?

MR SIBAYA: Wynberg/Constantia route.

MS QUNTA: And where did your friend live?

MR SIBAYA: He stayed in Philippi - Zinyoka.

MS QUNTA: So his route was between Constantia and Wynberg - from where, from Philippi or from Guguletu?

MR SIBAYA: He would move from Wynberg to Constantia only.

MS QUNTA: Now in you first statement which was given on the 5th of January to the police - which youíve just indicated to us that youíve signed, you indicated that that you went there by taxi, is that correct? Your first statement says - paragraph 2, there was no mention, you didnít mention anything about a friend by the name of Mazibuko.

MR SIBAYA: It is his taxi, he owns the taxi - wherever I go, he took me there. He was not on duty at that time, there were no taxiís in motion at that hour.

MS QUNTA: Yes, thatís fine, I donít have a problem with that, what I need to find out from you is why in that statement did you not mention to the police that you had your friend with you and his name?

MR SIBAYA: Mr Segal said that if Mazibuko refused to make a statement, there was no need.

MS QUNTA: So, are you saying that you did mention Mr Mazibuko to the police but they told you not to mention him if heís not prepared to make a statement, is that correct?

MR SIBAYA: They said that he did not want to be a part of this, therefore I should not mention him.

MS QUNTA: When did you find out that Mr Mazibuko did not want to be a part of this?

MR SIBAYA: When the policeman came to me saying that I should go to the police station, I went to Mazibuko and told him. Mazibuko then said I must not mention his name because he does not want to give a statement or did not want to give a statement.

MS QUNTA: And so you told the police that Mazibuko said you should not mention his name, you told Mr Segal that?

MR SIBAYA: Yes, I told him and said that we must leave him if he does not want to give a statement.

MS QUNTA: Now, why did you then mention Mazibuko so fully in your second statement to Mr Lubbe when Mr Lubbe came to you and now in your evidence you speak very freely of Mr - of your friend?

MR SIBAYA: What do you mean by freely?

MS QUNTA: Youíve told us that youíve been friends with him very long, he owned the taxi, you seem quite willing to speak about him and mention him, both in the statement to Mr Segal and now. Why - if you didnít want to mention - if you were told not to mention him in the first statement, why did you mentioned him in the second statement?

MR SIBAYA: It is not myself who did not want to mention his name, it is the police that said I must leave his name out.

MS QUNTA: Yes, I understand that - about the first statement, Iíve understood what youíve said, Iím talking about the second statement which you made to Mr Lubbe. Did Mr Lubbe also tell you not to mention Mr Mazibuko?

MR SIBAYA: He did not say that I must not talk about Mr Mazibuko.

MS QUNTA: So in other words you mention Mr Mazibuko - I want to find out why did you then decide to mention him in the second statement?

CHAIRPERSON: Well, in the first statement he was told by the police not to mention his name.

MR SIBAYA: Iím explaining how I got there - it is too far, I could not walk. I was explaining that aspect - there were no taxis at that hour.

MS QUNTA: Are you suggesting that because Mr Lubbe did not tell you to mention - to not mention Mr Mazibuko, youíve decided to mention him in the second statement?

MR SIBAYA: I was merely explaining how I got there because there were no taxis available and it was far, I used Mazibukoís taxi - there were no taxis at that hour.

MS QUNTA: Mr Sibaya, you say you live in NY72 or at the time you lived in NY72, number 52?

MR SIBAYA: Yes.

MS QUNTA: And you say you were not familiar with the area that you were going to - NY141, is that correct?

MR SIBAYA: Correct.

MS QUNTA: And Mr Mazibuko also did not know?

MR SIBAYA: He did not know it well.

MS QUNTA: Okay. Now, in the statement you made on the 5th of January, you said you proceeded down NY113 and that NY113 faces NY115, do you recall saying that?

MR SIBAYA: We went to all of them, NY113, 115 - we were getting lost, we didnít know where we were going to.

MS QUNTA: But you see, I understand that you say you were getting lost, what Iím trying to establish is which road - when you first got into that part of the township, which road did you proceed up? Did you go up to NY - did you proceed up to NY113 or NY115?

MR SIBAYA: We entered at 110, I saw NY113, 114 and 115 however, as we were turning the last time I did not know this street well, the person I asked at the car said it is - or at the house, said it was 129.

MS QUNTA: You are not answering the question Iím asking, Iím saying you said in your statement that you turned into NY113 - that is the statement you made to the police on the 5th of January. Are you now saying that that was not correct?

MR SIBAYA: No English translation.

MS QUNTA: NY113.

MR SIBAYA: We entered 113, went down the road and up the road again. What I remember clearly is that as we were at 115 leaving 113, we entered a street that I did not know, this is why we had to ask. That lady then said it was NY129, she said that 114 was just ahead of 115.

CHAIRPERSON: Itís just possible that the taxi was drunk at the time - the vehicle itself.

MR SIBAYA: No, he just did not know the area well - I didnít know it either.

MS QUNTA: Now Mr Sibaya, Iíve heard you saying that you donít know the area - now what Iím trying to establish, why were you so certain then on the 5th of January 5 days after the event, that you in fact turned into NY113? Iím going to read this for you, you say

"When we turned into NY113, the street was quiet. I noticed a white Audi motorcar which was parked on the Northern side of NY113 facing NY115"

You see, from what you say there it sounds like you are pretty certain about where you went - once you had got to that street, you at least recognised those streets.

MR SIBAYA: No, I did not know this street, the owner of the house where I knocked at told me. I saw NY113 when we entered, it is the owner who told me that it was NY129 that we were at.

MS QUNTA: So in fact you are saying now that you know that you turned in NY113 because a few seconds you said you didnít know where you were, you were told only that it was 129. So are you saying now that in fact that statement is - you did know that you were turning into NY113?

MR SIBAYA: Mr Segal went with me so that I could point out during the day where this all had occurred - he was together with other police. He then pointed at 113, he said that it is 129 it was not 113. If I could go there myself I could point these places out to you.

MS QUNTA: So in fact what youíre saying Mr Sibaya, is that on that evening when you drove around this, you did not know what these streets were and in fact what is here is what Mr Segal told you after you gone back to the place, is that correct?

MR SIBAYA: I saw 113 as we entered, we went down the road, we turned and I say NY115. When we entered the other road after 115, I no longer knew what road we were on. We asked this lady where 114 was, she told me. Mr Segal then said the place where this all occurred was not 113 but 129 in agreement with the lady we had asked for directions.

MS QUNTA: So, Iím a bit confused because you said a few seconds ago that in fact the lady that you alleged you went and asked where you were, told you itís 129 and that that was 113 and then immediately thereafter you tell me that you actually saw that is was NY113 when you got in. Which one is correct, which one of the two versions is correct?

MR SIBAYA: We entered through 113, went down the road ...[intervention]

MS QUNTA: Sorry, sorry to interrupt you, I just want us to stop at 113 - how did you know you were entering 113, did you see it or were you told the next day by Mr Segal that this was 113.

MR SIBAYA: I saw that it was 113.

ADV SANDI: Sorry, Miss Qunta, can I interrupt for a minute? When you say Mr Sibaya, you that it was 113, what do you mean? Was there a street sign here, was there a symbol that this is 113?

MR SIBAYA: It was written NY113.

CHAIRPERSON: Can we move on, otherwise weíll be going round and round these streets for the next half an hour.

MS QUNTA: Mr Chairman, the streets are actually very, very important and I will come to that just now. Itís very important for me to find out exactly what the witness means because there is - he says this in his statement, then later on he says an entirely different thing so I need to understand what he means.

Mr Sibaya, you also say there that 113 faces NY115, did you see that in the evening? Was that what you saw in the evening you were there - on the 30th?

MR SIBAYA: What?

MS QUNTA: Sorry. 133 you say - you told the police on the 5th of January that you went into NY113 and NY113 faces NY115.

JUDGE WILSON: Does he say that or does he say that the vehicle parked on the Northern side of NY113, was facing 115?

MS QUNTA: ...[inaudible] I still want to pursue that question.

Now you say the vehicle was parked in NY113 and it faced ...[intervention]

MR SIBAYA: What car?

MS QUNTA: The white Audi. You say that vehicle was standing facing North in NY113 and it faced - it was on the Northern side of NY113 and it faces NY115.

MR SIBAYA: No, 129 starts at 113, crosses over to 115.

CHAIRPERSON: Miss Qunta, just read to him paragraph 4 of his statement.

MS QUNTA: Yes. Iím going to read for you Mr Sibaya, it reads

"I noticed a white Audi motor car which was parked on the Northern side of NY113 facing NY115"

Thatís what you told the police and thatís what they recorded it - what they recorded. Do you recall saying that to the police?

MR SIBAYA: Yes, however when Mr Segal went with me during the day, he then rectified this and said that it was 129. When I took him there - showed him the positions where the cars were parked, he then rectified me.

MS QUNTA: So in fact, when you said that it faced NY115, there was in fact no NY115?

MR SIBAYA: Where the white car was parked?

MS QUNTA: Yes.

MR SIBAYA: The next day I found out that it was 129.

MS QUNTA: So in fact Mr Sibaya, youíve said several times that what you say here, just in this one paragraph relating to that location, it was all a mistake and you found out the next day - Mr Segal told you the right address and the right street names, is that correct?

MR SIBAYA: He said that we must go to the location, I took him there and I showed him where this had transpired. He then said that: "If youíre saying these cars were parked in such a way, then your statement was incorrect".

MS QUNTA: So in fact, what you are saying here was not your own knowledge Mr Sibaya - in this statement?

MR SIBAYA: What Madam.

MS QUNTA: Paragraph 4 that Iíve just for you, is incorrect? There was no vehicle standing in 113 facing NY115? I really need from you, a yes or a no. Was there a vehicle parked in NY113 facing NY115?

MR SIBAYA: The car was parked on 129 facing 115, the darker car was parked on 129 facing towards 113.

MS QUNTA: So this was incorrect therefore Mr Sibaya, thatís all Iím asking. I really want a yes or a no, I donít want a long explanation, answer yes or no. There was no white Audi ...[intervention]

MR SIBAYA: No English translation.

MS QUNTA: Mr Sibaya, wait until I finish because perhaps why you donít understand, you donít wait until I finish. There was no vehicle parked in NY113 facing NY115, yes or no?

MR SIBAYA: Elaborate. Iím saying that there was a car on ...[intervention]

MS QUNTA: I donít want an explanation, I want you to say to me whether this statement that a white Audi motor car was parked on NY113 facing NY115, was correct or was incorrect. Is it true or not?

MR SIBAYA: What truth do you want now? Do you want to know if there was a car or if there was no car there?

MS QUNTA: I want to find out where the car was parked, was it parked in NY113 facing 115 or not? Youíve said that Segal told you in fact it wasnít 113, so all I want - this statement is therefore not correct, this statement that is contained in paragraph 4 of your statement to the police is not correct?

MR SIBAYA: If you say something is not true then it had not transpired, what Iím saying is true.

JUDGE WILSON: Weíre not disputing at the moment whether a car was parked there or not, thatís not the issue. What counsel is asking you about is the street that it was parked in, it was not parked in 113 was it?

MR SIBAYA: What is written here is not true.

JUDGE WILSON: Thank you.

CHAIRPERSON: It took a long time.

MS QUNTA: Thank you. Now Mr Sibaya, when did you go to see Mr Segal or Superintendent Segal?

MR SIBAYA: I was fetched.

MS QUNTA: Do you recall when that was?

MR SIBAYA: On a Tuesday. This policeman came on a Monday, he said that heís going to come fetch me the next day, the Tuesday.

MS QUNTA: Was it - Iím trying to establish Mr Sibaya, did you see - did you speak to Superintendent Segal before or after you made this statement?

MR SIBAYA: I did not make the statement with him or I did not give the statement to him, I gave it to somebody else. He fetched me on another day asking me to show him the location.

MS QUNTA: So when he took you to the location, had you already made the statement or where you about to make the statement?

MR SIBAYA: I had already made the statement.

MS QUNTA: You had already made the statement?

MR SIBAYA: Yes.

MS QUNTA: Now, what was the purpose of Superintendent Segal then taking you to the township?

MR SIBAYA: He said that thereís something he did not understand in my statement, I therefore must take him to the location.

MS QUNTA: And ...[intervention]

MR SIBAYA: He then took me and I showed him where all this had transpired, he then clarified with a map.

MS QUNTA: Now in spite of Superintendent Segal taking you there and putting the correct street, the police did not correct the statement - they didnít correct this, they left it as it is?

MR SIBAYA: No, because I had already give a statement and it was written down.

MS QUNTA: Okay. Now, if you had made the statement before Superintendent Segal took you to the township and you say he told you not to mention Mazibuko - you see in your evidence in chief you said he told you not to mention Mazibuko, thatís why you didnít include it in the statement. Now if he said these things now the implication is that he said these things after the statement was made. Which version is correct?

MR SIBAYA: I was asked to go and look for Mazibuko, I then gave a report that he was refusing to go and give a statement - I had already made a statement at that stage. This policeman came to my house on the Monday, when I got home I was told that heíd come three times. On the Tuesday I gave a report back that Mazibuko was refusing to go and give a statement, I then was told not to mention anything about him.

MS QUNTA: But I understood from you evidence in chief that you had already made the statement.

MR SIBAYA: When? What time are you talking about specifically?

MS QUNTA: Okay. I think we must - I want to get a sequence out of you now, on the evening when you saw - when you allegedly saw this vehicle, you went to the police station, is that correct?

MR SIBAYA: Correct.

MS QUNTA: Which police station did you go to?

MR SIBAYA: Guguletu.

MS QUNTA: And do you recall the day on which that was - the evening that you saw the vehicle, what day was it? Do you recall the day?

MR SIBAYA: It was at the end of the month on a Thursday or Friday.

MS QUNTA: Okay. I think it was on a Thursday, if Iím not ...[intervention]

JUDGE WILSON: The statement in paragraph 3 says Friday the 31st.

MS QUNTA: Okay, I could judge the evening ...[intervention]

INTERPRETER: The speakerís mike is not on.

MS QUNTA: Sorry. I suppose the evening it was the 30th and the 31st so I think there is a bit - but that ...[inaudible] Thursday and Friday. Now, when did you actually go and make the statement that you made to the police, on what day? Do you recall on what day it was or how many days after? Perhaps we can use that to make it easier for you.

MR SIBAYA: The Guguletu police said that our statement was incoherent, they said we must go home, they took our addresses. It is on the Monday that they came ...[intervention]

MS QUNTA: Who came on the Monday?

MR SIBAYA: Nongahusa.

MS QUNTA: And where did he come from, which station?

MR SIBAYA: Bellville South.

MS QUNTA: And when did you make the statement then, on which day - it was on the 5th?

MR SIBAYA: On the Tuesday or the Wednesday because I was asked to go and look for Mazibuko. I went to Mazibuko, he refused to come with and I then returned on my own. The following - it was the following week, two days elapsed and then I went to make the statement.

MS QUNTA: So Superintendent Segal told you before the statement not to mention

Mazibuko, is that correct?

MR SIBAYA: Not correct. When I gave the statement, Mr Segal was not there. It is the people to whom I gave the statement who said that I must not mention Mr Mazibukoís name, when Mr Segal got there I had already made the statement. We are talking about another week altogether when Mr Segal came to me.

MS QUNTA: Mr Sibaya, Iím going to ask you to listen very carefully to what I say, earlier on at the beginning I asked you why you had not mentioned Mazibukoís name and you said you were told by Superintendent Segal not the mention his name. When I asked you why you had mentioned it in the second statement, you implied that itís because no-one told you not to mention him. Now, Iím asking you again and you say no you saw Superintendent Segal after you had made the statement and he told you after you had made the statement, not to mention your friend.

JUDGE WILSON: Thatís not what heís just said now is it? Isnít what he has said now - I agree with what youíve put to him before, that when he made the statement Segal was not there and it was those who were there who told him not to mention his friendís name.

MS QUNTA: But Mr Sibaya, you told us earlier on that itís Superintendent Segal who told you not, in your statements you also said itís Superintendent Segal who told you not to worry about Mazibuko. Now you are saying to us that in fact it was not him, it was the other people who took the statement. Who exactly ...[intervention]

MR SIBAYA: No, Mr Segal was not the first person to say this to me - he also mentioned this, however the people I gave the statement to initially said that I must not mention Mazibukoís name as well. Mr Segal came to me after a few days had elapsed saying that there are things that he didnít understand within my statement, he did not understand the location I referred to.

MS QUNTA: Mr Sibaya, in your statement given to John Lubbe, in your evidence in chief and earlier when I asked you, on all three occasions you mentioned Superintendent Segal telling you not to mention Mazibuko, you have not mentioned anyone else now you are bringing that in. I think it would be appropriate to say to you at this point that you are not telling the truth and perhaps what you should do is think very carefully and tell this Committee exactly who told you not to mention Mazibuko.

MR SIBAYA: What truth are you talking about? What truth do you want to me?

MS QUNTA: I didnít realise that there were different types of truth Mr Mazibuko - Mr ...[inaudible] slip Mr Chairman - Mr Sibaya, there are no different types of truth, you must tell this Committee what happened. Who told you that you should not mention Mazibuko? You told us on three occasions that it was Superintendent Segal, now you deny it was him only, you say that in addition to him there were other people.

CHAIRPERSON: Well just leave it at that, weíve got two versions on the record.

MR SIBAYA: Iím not denying. Nongahusa came to me and said that I must go fetch Mazibuko - listen carefully, I went to Mazibuko, he refused, Nongahusa came to fetch me the next day and I told him that Mazibuko had refused. Nongahusa then gave a report back, they said that I must continue with my own mission and leave Mazibuko out.

It is not Mr Segal to whom I gave the statement, Mr Segal only came afterwards saying that he did not understand my statement well. He requested that I take him to the location, I told him that I was with my friend Mazibuko. He said that we can then leave Mazibuko out, I must just give my statement as was. I donít know what truth you want.

MS QUNTA: Mr Sibaya, Iím going to leave you there ...[intervention]

CHAIRPERSON: This might a convenient stage to take the adjournment. Weíll now adjourn and resume and 9H30 tomorrow morning.

COMMITTEE ADJOURNS

ON RESUMPTION 30 OCTOBER 1997

BENNET SIBAYA: (s.u.o.)

CHAIRPERSON: Miss Qunta, are we ready to proceed?

MR PRIOR: Mr Chairman, before Miss Qunta proceeds Iím instructed to place on record the following - youíve been handed as 3(a), it is the last page of the report of Mr Lubbe which appears at page 15 to 14 of the supplementary bundle Mr Chairman, the omission of that in the bundle is regretted - it was always available, it was part of the original report and at this stage we donít know how it wasnít copied but it was - as soon as it was brought to our attention, copies were made and circulated. The oversight is regretted Mr Chairman.

CHAIRPERSON: Thank you very much. Weíve been given a plan of the area, is this accepted by everybody?

MR PRIOR: Mr Chairman, I was about to place on record that yesterday afternoon the plan was handed to Miss Qunta and in order to facilitate or assist the cross-examination, it was distributed. She hasnít indicated whether they accepted it or rejected the accuracy of the plan.

CHAIRPERSON: Have you had a chance of looking at it?

MS QUNTA: Mr Chairman, I must admit I havenít had an opportunity to actually study it but we were given a map - a hand drawn map by Mr Mark Killian, who actually went to the premises and to the extent that it - the two maps comply, I would have no difficulty in this but if it becomes necessary I will raise certain issues but Iíve no objection to it being used.

CHAIRPERSON: Very well this will go in as Exhibit D, is it?

JUDGE WILSON: E.

CHAIRPERSON: This will go in as Exhibit E - this plan. Itís shaded in, you have three different colours, where they put in by you? The shading is done by you?

MR PRIOR: They were inserted at my request by Mr Killian, simply to assist with the easy identification of the road numbers Mr Chairman.

CHAIRPERSON: Thank you very much, that will be received. Is there anything else Mr Prior?

MR PRIOR: Thereís nothing further, thank you Mr Chairman.

CHAIRPERSON: Yes, Miss Qunta?

MS QUNTA: Judge, just on the map issue, I have just looked at it and I noticed that the representation Mr Mark Killian drew and especially with NY113 which I have in front of me and which you donít have, the location of NY29 and 113 is at different angles, itís not quite the same. Iím going to give it back to Mr Mark Killian - his drawing and perhaps rather than delay the Committee now, if - Iím not going to cross-examine the witness immediately on this issue so perhaps if Mr Mark Killian can assist by just checking both and seeing if his representation is in fact correct.

CHAIRPERSON: Very well.

MS QUNTA: Heís just pointed out to me that in fact itís substantially similar. If I would just request Mr Chairman, that when the map is placed before the witness that itís not highlighted, that an unhighlighted one is placed before the witness but I donít intend right now to cross-examine on that.

CHAIRPERSON: When you have all the numbers of the roads printed on the map, does it make too much difference?

MS QUNTA: I think it could Mr Chairman, I think it could.

CHAIRPERSON: Anyway, letís proceed with this witness.

CROSS-EXAMINATION BY MS QUNTA: Mr Sibaya, yesterday ...[intervention]

CHAIRPERSON: Just hold it, Iíd like him to be sworn in.

ADV SANDI: We would like to remind you Mr Sibaya, that youíre still under oath, thank you.

MS QUNTA: Yesterday you indicated at the start of your evidence in chief that when you made the statement to the police on the 5th of January, you told them everything including the registration number of the white vehicle that you saw, is that correct?

MR SIBAYA: Now, you told the Committee here and to Mr John Lubbe that a piece of paper fell from the car.

MR SIBAYA: Yes.

MS QUNTA: And that that piece of paper contained a map.

CHAIRPERSON: A diagram probably, more than a map.

MS QUNTA: A diagram, thank you Mr Chairman - a diagram which had certain words on it - Heidelberg and contained certain directions, now you felt that that was quite an important document thatís why you say that you took it to the police station.

MR SIBAYA: No English translation

MS QUNTA: Can I get a response from the witness? I will repeat what I just said, you felt that that piece of paper was quite important and that is why you took it to the police station.

MR SIBAYA: What do you mean by important or significant?

JUDGE WILSON: Well, why did you take it to the police station?

MR SIBAYA: The reason I took this paper to the police station is because that car was being stolen, perhaps the paper would have evidence that this car did not belong to these people. I thought that there were peopleís names on the paper because it was an XA or Umtata registration, I realised that the car was not from Cape Town.

MS QUNTA: Now, if you felt that the paper contained significant information, why did you not mention it in your statement to the police on the 5th of January? I note that you did not mention that, can you explain why you didnít do that?

MR SIBAYA: It was because that paper was torn in Guguletu so there was no paper to talk about anymore.

MS QUNTA: No, my question is - you said to us that you told the police everything that happened on that night, there is nothing in this first statement about a map. The map or diagram story only comes in four years later, four years after the event this is mentioned.

MR SIBAYA: Please listen carefully Madam, the people to whom I gave the statement said that they do not write down when there is no evidence, it seemed like just a story now that the paper was not there - they said that I must talk about something concrete.

JUDGE WILSON: But everything you told them was just a story, or most of it that you wrote down and they wrote it down. An you said the man was wearing one of those sports caps, dark in colour - they wrote that down.

MR SIBAYA: What man? What man are you talking about?

JUDGE WILSON: Iím referring to your statement to the police, paragraph 9.

MR SIBAYA: In the statement I said that the one man had a cap on.

JUDGE WILSON: That was just something you said but the police wrote it down, why didnít you say: "They dropped a piece of paper that I picked up"?

MR SIBAYA: I am telling you my perception of the whole incident, it is how I saw it. I gave in the statement everything that I saw, however the police said theyíre not going to write down what I donít have or about what I donít have.

MS QUNTA: Mr Sibaya, I want to put it to you that what youíve just said is not correct, that there was no diagram, there was no vehicle on that evening, there was no diagram, that diagram is a figment of your imagination at best or you were instructed after the Heidelberg Tavern incident and the investigations began, to fabricate the existence of a diagram.

MR SIBAYA: Who gave me that order?

MS QUNTA: Well I want you to tell us - youíve said a lot about Superintendent Segal, he seems to have had a lot to do with telling you what to put in the statement and not what to put in the statement. So perhaps you can you can tell the Committee who instructed you in the first place to make the statement to the police and how and who coached you what to put in and what not to put in, perhaps you can tell us now.

MR SIBAYA: This is not clear to me, do you think somebody would just say to you must fabricate because that would come back to you - the truth always comes out.

MS QUNTA: Well, we are trying to get to the truth now Mr Sibaya, and I can tell you that very little of what you said here is truthful except your name and perhaps your age and your address because weíve verified that, everything else seems to be an utter fabrication.

MR SIBAYA: Are you saying that this is all not true?

MS QUNTA: Yes, Iím putting it to you that this is a fabrication, everything that is contained in your statement to the police and your statement to Lubbe - Mr Lubbe, is a fabrication.

MR PRIOR: With respect Mr Chairman, I think thatís a bit unfair because the objective evidence indicates that the dark coloured car used in the Heidelberg attack in fact was found in road 129 as well as a cap that was linked to one of the applicants, Mr Mabala.

MS QUNTA: Perhaps weíre not dealing here with objective evidence, we want corroborated evidence and there is no corroboration about a cap or a car. The fact of a mention of a dark vehicle Mr Chairman, all the witness has said that he saw a dark vehicle and I will come to that right now. There is no evidence about the colour of the vehicle, about the registration of the vehicle so perhaps my learned friend is overstating the matter when he says there is objective evidence. There is no corroboration whatsoever.

CHAIRPERSON: Well, there may be no corroboration but that doesnít mean that the evidence is not there.

MS QUNTA: Well, Mr Chairman, if I wanted to frame someone - after the investigation begins, I find a cap on the premises, I can say to a witness says that you found this cap and this is what Iím suggesting to the witness. He has been primed and Iím going to get to that Mr Chairman.

CHAIRPERSON: No, no, I can understand your desire to get to the truth, weíre all interested in that but Iím just saying that sometimes evidence is not corroborated but that doesnít mean that it is not evidence.

MS QUNTA: I take that point.

Now Mr Sibaya, letís get to that car - that vehicle that dark vehicle, can you tell the Committee anything else about that vehicle?

MR SIBAYA: This dark coloured car was facing South, the white car was facing North. When we arrived I did not see the White car sorry, I did not see the dark coloured car, I saw the car with the Transkei registration. I was looking for the place that I was looking for, then I went into the house, then I saw the dark coloured car when I was coming back as there were people alighting from that car going towards the white car.

MS QUNTA: Now, did you notice the colour of the vehicle or the registration number of the vehicle?

MR SIBAYA: I memorised it.

MS QUNTA: Of the dark vehicle?

MR SIBAYA: No, I memorised the number of the white vehicle. The white car I thought belonged to soldiers.

JUDGE WILSON: The white car belonged to soldiers, is that what youíre saying?

MR SIBAYA: It is the dark car that I thought belonged to soldiers because they were fetching their arms from the dark car running towards the white car.

MS QUNTA: Now Mr Sibaya, did the dark car have number plates?

MR SIBAYA: It was far from me, I did not get close to it.

MS QUNTA: But I think you told us that it was 20 metres from you - In your statement you said it was about 20 metres away. Is that correct?

MR SIBAYA: That could be so, that could be the distance but it was further from the white car.

MS QUNTA: Now fine, now what Iím asking you is Mr Sibaya, did the dark car have registration numbers?

MR SIBAYA: I did not get close to the dark car.

MS QUNTA: Now Mr Sibaya, you see this vehicle behind, there are people who come out of that vehicle with weapons according to you and they get into a white car, the white car dives away - you say in your statement that you think an offence may be committed or may have been committed or may be about to be committed.

MR SIBAYA: Itís not what I thought, it is what I saw. I saw them fetching weapons from the one car to the other, they could have been stealing them. It could have been that the other car did not belong to them - I picked up the paper and I took it to the police.

MS QUNTA: Now when you see this the car is stationery, this vehicle is - according to your evidence, the vehicle is stationery, it is stationery after the white vehicle had left and you remain after the white vehicle has left but you do not go to that dark vehicle to take itís registration numbers.

MR SIBAYA: What was I going to do to the dark car, it was going - this whole thing was going to involve me as well as a culprit, if I went there I would have been found guilty as well.

CHAIRPERSON: Just be careful, thatís a very, very important question, can you thing of a better reason than the one youíve given as to why you didnít go to this other car?

MR SIBAYA: We were afraid by then, we did not even want to move until they had left altogether, we just wanted to get away from that place.

MS QUNTA: But according to your evidence, after the white vehicle left you were still there and the dark vehicle was still stationery. If you felt that there was something going wrong there - I want to put it to you that any reasonable person would go up to the white - the dark vehicle and take that registration number as well.

MR SIBAYA: I already had evidence because I had memorised the registration plate of the other car, what else did I want - would I have wanted? It is only the police who could have helped me because if you memorise somebodyís registration number, itís as good as having the ownerís name.

MS QUNTA: I will leave that issue now.

JUDGE WILSON: Well, I want to ask you something, it youíd gone up to that dark car you could have seen if the window had been broken, if the door had been broken, if there were signs that it had been broken into, which was something important to tell the police when you went to them. Why didnít you go?

MR SIBAYA: Please listen to me carefully, the one man said to the other: "You have forgotten your cap in the other car but if they had come back - think carefully, if they had come back to fetch the cap, what would have happened to me.

CHAIRPERSON: Letís not talk about: "If they had come back", we are talking about what was happening still at the time, do you understand?

JUDGE WILSON: Have you forgotten that you say in your statement that the other men ran away before the white car left?

MR SIBAYA: These are three men, the two went into the car, the one ran away. I - we had to be sure that they had all gone, then we would leave after that. We were scared at that point.

JUDGE WILSON: Mr Sibaya please think carefully, in your statement you didnít say: "These were three men, two got into the car and one ran away", what you said is at paragraph 6

"One of the other four approaching the white car got in at the left back door, the other three men ran away towards the NY115".

You said there were five men who came from the dark car, have you forgotten that?

MR SIBAYA: Two men went into the car and three did not go in.

JUDGE WILSON: Yes.

CHAIRPERSON: Now, if you suspected that these people had been stealing from that dark car, surely it was important for you to go to see about this dark car and see whether it had been broken into because you had made up your mind you were going to report to the police, is that not so?

MR SIBAYA: I had enough evidence, the police would have gone after them on the basis of the registration number I had.

JUDGE WILSON: You are an observer of a scene and I canít understand about you having enough evidence, you are an observer of the scene and at that time youíre not thinking about evidence that was going to be put before anybody, you were seeing a picture and the question is that part of the picture was the presence of this blue car. You didnít go to this and the reason for not going to this is because you said you had evidence, now that answer about you having evidence to me betrays something. It means that youíre thinking about evidence and not about what was actually happening before your eyes.

MR SIBAYA: Please listen Sir, if you take somebodyís registration number, give them the colour - you give that to the police, the police are going to go after that man and find them. The police will go after the owner of the car - I was sure about that. I sure at the time that these people was not going injure anyone as I was going to the police with the evidence I had.

ADV SANDI: Mr Sibaya, is that to say that you were only interested in the white car and not the blue car?

MR SIBAYA: I was interested in the white car running away with the arms to murder people, the darker coloured car was just stationery - not going anywhere.

JUDGE WILSON: So you thought - the white car you now say was running away with arms to murder people?

MR SIBAYA: Those were young people, if young people steal arms from a soldierís car theyíre going to harm somebody, this is why I quickly went to the police.

CHAIRPERSON: Proceed please.

MS QUNTA: Mr Sibia - Sibaya, I beg your pardon, when - how did you get to see the registration number of the white vehicle?

MR SIBAYA: When it drove off the lights were not on, when it was turning at the corner the man had to apply brakes and the lights went on - thatís how I saw the registration.

MS QUNTA: Now, Mr Sibaya, brake lights go on for a fraction of a second and I want to put it to you that it is not believable that you could see those lights in that fraction of time - then not only memorise those - that registration number, with out writing it down because your evidence is that you did not write it down, and remember it five days later. Listen to me Mr Sibaya - five days later, I want to put it to you that it is unbelievable.

MR SIBAYA: I remember those numbers to this day, even if you would wake me up in the middle of my sleep I would remember those numbers - when you apply brakes the lights go on.

MS QUNTA: Mr Sibaya, I would wonder why you would dream a registration number of a car but I want to suggest to you that when you say you memorised that number, you were actually not telling the truth because when you were interviewed recently by Mr Lubbe, you could not remember that number. What is your comment about that? And be careful before you answer Mr Lubbe because you are - Mr Sibaya, because you are under oath.

MR PRIOR: With respect, thatís an unfair question, page 89 of the bundle, paragraph 7 - my learned friend is not putting what the witness said to Mr Lubbe.

MS QUNTA: Mr Chairman, this is quite - I have information to the fact that - my instructions are and I got these instructions a few minutes ago, is that Mr Lubbe enquired from the witness, the number - he could not recall the number offhand and was given - Mr Lubbe had to prompt him for that number. If you will allow me Mr Chairman, I can call witnesses to that effect - it the witness denies that, I will do that.

CHAIRPERSON: Very well, at this stage you will just put to him that he didnít remember the number.

MS QUNTA: Yes, I am putting it to you, that you in fact to do not remember the numbers as youíve come to tell the Committee - you were prompted.

CHAIRPERSON: And when was this that he didnít remember?

MS QUNTA: When he was interviewed by Mr Lubbe on the - during the process of the investigation that gave rise to the statement that was made - the affidavit.

CHAIRPERSON: Yes, carry on.

MS QUNTA: Now, another - perhaps I should get a comment from the witness Mr Chairman.

CHAIRPERSON: Well, you put it to him that he didnít remember a number when he was questioned.

MS QUNTA: The questions of the cape ...[intervention]

JUDGE WILSON: Has he relied to that? Mr Sibaya, it has been suggested to you that when Mr Lubbe spoke to you you were not able to remember the number and he had to remind you of it, is that so?

MR SIBAYA: Are you saying he prompted me with the number?

JUDGE WILSON: That is what is being suggested.

MR SIBAYA: No incorrect, he did not remind me. I know that number always - it will never leave my mind.

MS QUNTA: Mr Chairman, I may later on decide whether to call another person. But Mr Sibaya, you made reference in your second affidavit and in your evidence in chief here about a cap that you saw on one of the persons at the scene ...[intervention]

MR PRIOR: Mr Chairman with respect, that wasnít the evidence - he mentioned that the people leaving the scene had spoken about a cap being left behind in the vehicle.

MS QUNTA: My apologies Mr Chairman, thatís correct. My apologies, my apologies, thatís correct.

Now, in the statement you made to the police thereís no reference to a conversation that you overheard between the persons at the scene.

MR SIBAYA: Do you want me to answer that, do you want me to respond?

MS QUNTA: Yes.

MR SIBAYA: The police from Bellville South murder and robbery squad - I explained to them that ...[intervention]

INTERPRETER: Could the witness slow down please.

CHAIRPERSON: Just please talk slowly so that the interpreter can interpret what youíre saying. Yes, proceed.

MR SIBAYA: I donít know which one it was, I donít know which one it was that spoke because it was dark and they were already leaving. However, the one man said: "Madasi you forgot your cap in the other car" - the police from Bellville South know that because they were looking for Madasi as well.

MS QUNTA: Mr Sibaya, the question is: "Why did you not say that in your statement to the police"? I want you to answer the question.

MR SIBAYA: I told them, they know that. They know the name of this man - the one saying to the other that theyíd forgotten the cap in the car.

MS QUNTA: Mr Sibaya, youíre really not answering my question. You say that to the ...[intervention]

CHAIRPERSON: He says he did tell the police.

MS QUNTA: Yes, now ...[intervention]

CHAIRPERSON: The police may not have written it down.

MS QUNTA: Now, I want to find out why you append your signature to a statement that doesnít contain everything that youíve told the police and why you come to this Committee and say that that is your statement because in fact it is not your statement, it contains certain things that you didnít say - very crucial evidence or very crucial information.

CHAIRPERSON: It rather leaves out something which he said, it doesnít contain things which he didnít say.

MS QUNTA: Yes, thank you.

MR SIBAYA: What is your question exactly?

MS QUNTA: Why do you put your signature to a statement that doesnít reflect what you told them, in that it leaves out certain information?

MR SIBAYA: If somebody writes down what you said, you donít know what is in the statement and what is not in the statement - it is the person whoís writing the statement, I didnít write the statement.

MS QUNTA: So in fact you didnít read the statement before you signed it Mr Sibaya?

MR SIBAYA: I did not know that after a statement has been written you have to read it, the police just ask you to sign. They tell you that they have written it down as you had told them.

JUDGE WILSON: Can you tell Mr Lubbe about this conversation you heard?

MR SIBAYA: Could you repeat that question please?

JUDGE WILSON: Did you tell Mr Lubbe about this conversation you heard about the cap and the name that was mentioned?

MR SIBAYA: No, I forgot to tell him because I had a lot in my mind.

MS QUNTA: So in fact Mr Sibaya, your memory is not as good as youíd like us to believe - even about crucial matters?

MR SIBAYA: Madam, I try to remember everything that happened that night, if I donít - if thereís something that I donít mention, it is because I have forgotten it. Mr Segal said that if you donít have concrete evidence donít mention anything about that.

MS QUNTA: I will leave the issue of the cap and statement at this point, it is quite clear that Iím not going to make any further headway but perhaps I should just ask you - can you read Mr Sibaya, whatís your standard of education?

MR SIBAYA: Please listen Madam, I am not well educated. I went to St Cuthberts in the rural areas, I left school it standard two. It was hard to receive education in my time.

MS QUNTA: Can you therefore ...[intervention]

INTERPRETER: The interpreter did not hear the second last sentence.

CHAIRPERSON: Tell the witness to repeat that answer again because what he said was not heard.

MR SIBAYA: I grew up in the rural areas - it was hard to receive education at the time, we went to St Cuthberts in Tsolo - I was taught to write my name. I was at school until standard two, I am not well educated.

MS QUNTA: Can you read Mr Sibaya? Can you read English, can you read English or Xhosa?

MR SIBAYA: If the words are not complicated I can read, I cannot however read a newspaper for example.

MS QUNTA: Could you read the statement that was drawn up if you were given the statement? Youíve said the police didnít give it to you to read but if they gave it to you to read, would you be able to read it?

MR SIBAYA: No, unless they would read it out for me, I could not have read a statement that was written in English.

MS QUNTA: Okay, now the affidavit that you made for Mr Lubbe, if that was given to you to read would you also say you would not be able to read that?

MR SIBAYA: I could read it but perhaps some words I wonít be able to pronounce.

MS QUNTA: Did you read the affidavit that was made? When the affidavit was completed, was it given to you to read?

MR SIBAYA: He read it out for me.

MS QUNTA: Now, where are you presently employed?

MR SIBAYA: I work in Kenilworth.

MS QUNTA: Where in Kenilworth?

MR SIBAYA: Main Road.

MS QUNTA: Or for whom do you work?

MR SIBAYA: No English translation.

INTERPRETER: Could the speakerís wait for the interpretation please.

MS QUNTA: Yes, my apologies.

MR SIBAYA: Iím a gardener.

MS QUNTA: And are you married Mr Sibaya?

MR SIBAYA: I was married but Iím separated with my wife.

INTERPRETER: The word separated and divorce in Xhosa is the same word so I donít - the interpreter does not know what the witness means.

MS QUNTA: When did you separated from your wife?

MR SIBAYA: It is a long time ago, 1980.

MS QUNTA: And do you have any children?

MR SIBAYA: I have two children.

MS QUNTA: Can I have their names please?

MR SIBAYA: Theyíre not here, theyíre at home.

MS QUNTA: Thatís fine, I need their names. Is it girls or boys?

MR SIBAYA: Girls, Madam.

MS QUNTA: Can I have their names please.

 
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