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Type AMNESTY HEARINGS
Location CAPE TOWN
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.
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.
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"
"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.
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.
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: 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?
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.
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.
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: 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.
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.
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.
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.
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.
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: 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.
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]
"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.
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.
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 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: 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}
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 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]
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 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 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]
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]
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: 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 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: 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 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 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 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 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 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 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 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.
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.
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: 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: 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?
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?
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: 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.
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"
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?
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: 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 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: 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?
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?
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: 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: 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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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: 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?
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: 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.
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.
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 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.
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.
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 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.
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.
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.
"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".
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?
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.
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.
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.
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.
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 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: 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.
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.
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: 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: 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?