CHAIRPERSON: Hopefully we're finished with the grief now. For the purposes of the record I'm going to announce myself again. I'm Judge Pillay. I'm going to ask my colleagues and the various representatives to do the same for the purposes of the record.
ADV SIGODI: I'm Adv Sigodi from the Port Elizabeth Bar.
MR MALAN: Wynand Malan, Commissioner TRC.
MR SHAI: Kgama S-h-a-i for the applicant.
MR RICHARD: Thank you Chair. My name is Tony Richard. I am for the victims. Thank you.
MS MTANGA: Lulama Mtanga, the evidence leader for the Truth Commission.
MR KOOPEDI: Chairperson, Honourable Commissioners, my name is Brian Koopedi, an attorney from Pretoria. I appear for the persons implicated in this hearing.
CHAIRPERSON: I just wrote Moloi.
MR MALAN: Can you just name the persons on whose behalf you are appearing?
MR SHAI: I appear for O-b-e-d Nkosi, Ginda M-b-e-l-e, Vusisiwe M-o-d-i-s-a-k-e-n-g, Moeti S-e-b-i-l-o-a-n-e. Also for Ashler R-a-d-e-b-e. I also appear for Mzwakhe M-n-d-e-b-e-l-e. Also for Ndaba K-h-u-m-a-l-o. Also for Shadrack M-o-f-o-k-e-n-g. Also for William R-a-d-e-b-e. Also for Juda Zameni and also for Nagangeni M-a-c-u. That's it Chairperson.
CHAIRPERSON: Before we come to you Mr Richard, I just want to check with Mr Shai. Mr Shai, the original application involved an application for amnesty for murder, three counts of arson and two counts of transgression of the Arms and Ammunition Act. There was a time when the TRC wrote to you or your client and it transpired that there was another matter which we referred to you which 20 people died. We're not too sure of the facts or allegations in that matter, but in any event it seems like that matter had come to us a bit too late, so it wasn't investigated. I understand that that part of the application is put on hold. Do you know about that?
MR SHAI: Mr Chairperson, my initial applications were actually to move the application in respect of the matters that are actually specifically mentioned. And I have specific instructions from him as far as those matters are concerned. As to the 20 murders that are mentioned thereafter, I don't have actually clear instructions on that.
CHAIRPERSON: So we will only deal with those first six matters.
MR SHAI: The murder of the unknown person, the arson, the three counts of arson and the guns, the gun-point.
CHAIRPERSON: Two.
MR SHAI: Two counts of guns. That's correct.
CHAIRPERSON: Mr Richard, I don't know if what we just discussed affects you, but we need to know on what basis and in respect of which offences you have instructions to oppose the application.
MR RICHARD: Thank you Chair. As I put my hand forward, I was about to address on that point. When instructed late last week I was requested to take into account that the one deceased victim is an unidentified, unknown person. And bear in mind that in the interests of the Commission that aspect should be explored and to take the interests of the unknown into account in my approach to the matter. I will do my best to discharge my brief. My client so to speak is deceased in that regard.
But however, with regard to the living, the disputes centre around whether there has been a proper and full disclosure, and whether the political objectives as contemplated in the Act have been established and also... (intervention)
CHAIRPERSON: In respect of which counts?
MR RICHARD: In respect of both the death and the arsons.
CHAIRPERSON: All the arsons?
MR RICHARD: I'm instructed in two of the arsons; that's the Majola and Mojaba families.
CHAIRPERSON: Anything else?
MR RICHARD: To continue, if the Chair and the Committee wishes...
CHAIRPERSON: Well, are we talking about Moses Tabate and Petrus Radebe? Have you got briefs in respect of those offences?
MR RICHARD: I have only received instructions on a formal level from the Majola and Mojaba.
CHAIRPERSON: Now I'd just like to raise something with you that troubles me - and I speak for myself at the moment - in respect of the unknown deceased. I don't know if somebody is able to give you instructions to deal with the deceased, that they have no interest in. Or can't have an interest in. To the extent that it may be used to cross-examine the applicant. I wish to point out that cross-examination of the kind that we're used to in an open court is not the type envisaged by the Commission. The practice is to strictly allow cross-examination on disputed issues. And to avoid what is commonly termed "a fishing expedition".
MR RICHARD: Chair, I used my words in a considered manner to take into account, and I add on, in so far as appropriate. And as I said, I will do my best to discharge that duty, but I understand the difficulty.
CHAIRPERSON: Both my colleagues - and I agree with them, that's why I raised the issue - I don't know to what extent you're going to use the factors pertaining to the killing of this unknown deceased in cross-examination. We'll have to cross those bridges when we get to it. It is the formal representation of an unknown deceased that troubles us. Can an unknown deceased be represented? Who or how could those instructions be given? You know? And I understand your peculiar position, but for the formal record, the Commission has to protect itself on that score. How do we overcome that problem?
MR RICHARD: On my reading of the bundle presented to me and when considering the procedural point initially raised about the other 20 matters, it would seem on the papers that the central issue is as I commenced outlining, whether in connection with the bundle of incidents that we're considering, there was a full and proper disclosure; that the proper political objective has been established and that the applicant has established either the expressed or implied or bona fide belief in his authority to act in the manner that he did. And I believe that in all the incidents that is the common theme. They're part and parcel of a context and a period.
However, I believe that as indicated already, certainly if it is without going into a fishing expedition possible to establish the identity of the deceased beyond what the papers disclose, to identify who he was, why he was killed, it would be appropriate to do so and within... (intervention)
MR MALAN: Mr Richard, sorry for interrupting you. Did you get your instructions, or was it the request from the TRC Amnesty Committee to appear on behalf of the victims?
MR RICHARD: It was a request. I was not approached until last Friday I believe it was - might have been Thursday afternoon - by the Cape Town office.
MR MALAN: Which victims have you had the opportunity to consult with?
MR RICHARD: I have consulted with the two families indicated earlier. The Majola and Mojaba families whose houses were burnt.
MR MALAN: Have you spoken to any of the others?
MR RICHARD: I can find no others here to discuss anything with.
MR MALAN: Have you not been given the addresses of the victims?
MR RICHARD: In the time allocated - I have the bundle - I have not been able to investigate any other addresses.
MR MALAN: Then for the record we take it that you're appearing on behalf of the Majola family and the Mojaba family.
MR RICHARD: That is correct.
MR MALAN: Thank you.
CHAIRPERSON: Can we leave it at that then?
MR RICHARD: I am content to leave it at that. I have outlined as far as I think appropriate.
MR MALAN: Sorry, before Mr Shai continues. Ms Mtanga, do you have record whether the other victims were traced and given notice?
MS MTANGA: Chairperson, the position is that there's three victims of arson and the two victims who were held at gun-point could not be located in the investigation and then an advertisement was put on the paper and on the radio. And after that was done Lavi Majola and Majaba responded and a further person responded, Petrus Radebe. But he indicated he won't be attending the hearing. The only people who have not yet contacted is Pat Ndala and Moses Kabete.
CHAIRPERSON: Thank you.
MR NTOKA: (sworn states)
EXAMINATION BY MR SHAI: Mr Ntoka, you are the applicant in this matter. Is that correct?
MR NTOKA: That is correct.
MR SHAI: Where were you born, and when?
MR NTOKA: I was born in Heidelberg.
MR SHAI: And when?
MR NTOKA: 1973, October 26.
MR SHAI: How far did you study?
MR NTOKA: Std. 6.
MR SHAI: Now you make an application in respect of an incident that took place on 21 August 1992 and you are presently (further indistinct).
MR NTOKA: Yes, I made an application for amnesty.
MR SHAI: At the time of the incident, were you a member of any political organisation?
MR NTOKA: That is correct.
MR SHAI: And which organisation?
MR NTOKA: ANC Youth League.
MR SHAI: When did you join the said organisation?
MR NTOKA: In 1987. 1987.
MR SHAI: You were at some stage detained for activities relating to carrying out a mandate for the organisation. Is that correct? That's what you're trying to say when you say you were in detention.
MR NTOKA: Yes, I was detained for ANC Youth League activities.
MR SHAI: Now the activities that you were carrying out for the said organisation, were they confined to the Heidelberg area? Specifically the Rotunda?
MR NTOKA: That is correct.
MR SHAI: Now were you still active on 21 August 1992? That is the date of the incident.
MR NTOKA: That is correct.
MR SHAI: And who were you taking instructions from?
MR NTOKA: I received instructions from Busi Mgwena, May Mgoni, Robert Nkosi.
MR SHAI: And where were these instructions given to you?
ADV SIGODI: We didn't get the names of the people he got instructions from.
MR NTOKA: May Mgoni, Busi Mgwena and Robert Nkosi.
MR SHAI: Do you know where these people are at present?
MR NTOKA: Yes.
MR SHAI: Will you please mention their whereabouts if you know them?
MR NTOKA: Busi Mgwena is present. I learnt that Mgoni has been deceased and I'm not sure about the other one, where is he.
MR SHAI: Now who was your immediate commander, if you had one?
MR NTOKA: Yes, I did have a commander.
MR SHAI: Who was it?
MR NTOKA: It was Mgoni.
MR SHAI: And do you know who he was reporting to?
MR NTOKA: I don't know to whom he was reporting, but we were close. Me and him were close.
MR SHAI: Now in carrying out your activities, did you at any stage come in possession of firearms?
MR NTOKA: Yes, he used to bring them along.
MR SHAI: Now the instructions that you got on which actually were given to the organisation under which you operated or the unit under which you operated if any, do you know as to when they were given to you, that led to the incident of 21 August 1992?
MR NTOKA: He told us where these instructions came from.
MR SHAI: Ja, but do you know when they were given to you?
MR NTOKA: Are you talking about the instructions to kill?
MR SHAI: Ja, as there is one murder incident that is involved. Were there any specific instructions that were given relating to murdering people?
MR NTOKA: Yes, that's correct.
MR SHAI: Who gave you the instructions?
MR NTOKA: It was Mgoni, Busi Mgwena Baki.
MR SHAI: Was it given directly to you or did you hear that there were such instructions from a third party?
MR NTOKA: I learnt that from the third person.
MR SHAI: So you were not there when that instructions were given, or were you present personally?
MR NTOKA: You mean the - I was present when this person was killed. It's me who hit him and burnt him. I also shot him.
MR SHAI: Yes. What I'm saying is you say that you received instructions from the people you mentioned. Is that correct?
MR NTOKA: That's correct.
MR SHAI: What were the nature of the instructions that were given to you?
MR NTOKA: I was told by Mgoni, Busi Mgwena and John Baki and Robert Nkosi.
CHAIRPERSON: All of them told you at the same time what you must go do?
MR NTOKA: That's correct.
MR SHAI: And where were you when such instructions were given?
MR NTOKA: We were at White House.
MR SHAI: Was it dubbed White House or as it the name of the house?
MR NTOKA: That's the name of the house.
MR SHAI: Where is this house situated?
MR NTOKA: It's at Rotunda.
MR SHAI: Whose house was it?
MR NTOKA: The surname of the owner is Mr Nhlapo.
MR SHAI: Now what was the situation like in Rotunda at the time of the... (intervention)
MR MALAN: Sorry Mr Shai, I'm not sure. Did you not put a question to him whether he had it directly from these people or whether he had it through a third party? And that he responded that he received the instructions through a third party. And that you then asked him the name of the third party which I didn't pick up, but he gave it to us.
MR SHAI: That is correct. I was actually following up on that question and Mr Chair I think posed a question in between and he said that these people actually gave instructions, all three of them. And it was actually posed to him whether all three ...(indistinct) and he answered in the positive.
MR MALAN: Can't we just clear that up then? I don't know how three people speak simultaneously. Can we get the circumstances? Do you want to lead him or do you want me to?
MR SHAI: I will lead on that. Now you say you received instructions from these people that you mentioned. Did they all three of them give you instructions or did you receive instructions from one of them?
MR NTOKA: I got my instructions from May Mgoni. They were always together. The one will give us an instruction and another one will also give us an instruction and we'll carry out all those instructions.
MR SHAI: So when these instructions were given, were all of them present?
MR NTOKA: That's correct. You also asked me about the situation at the township that day.
MR SHAI: Ja, I'm trying to clarify on this issue of instructions first before moving on to the next issue of the situation in Rotunda.
CHAIRPERSON: Are you confused?
MR NTOKA: I do have asthma.
CHAIRPERSON: And have you got an attack at the moment?
MR NTOKA: I cannot breathe and I feel that my temperature is very high.
MR SHAI: Mr Chair, may I just put it on record that I wasn't aware of the health of the applicant?
CHAIRPERSON: I understand that the applicant has come down with an attack of asthma and he's run out of medicine. I'm not comfortable, him having to give evidence while he is labouring under such an attack and our best laid plans to complete at least part of his evidence has now come to an end. Therefore we have to postpone till tomorrow. I want to ask the prison people whether he could be here at eight o'clock tomorrow. I want to ask the prison people whether it is possible to have the applicant here at eight o'clock tomorrow morning.
PRISON AUTHORITY: We will be try to be early in the morning, but I am not able to promise that we'll be here exactly eight o'clock because of logistic arrangements.
CHAIRPERSON: Well, here the senior comes. I suppose maybe we can ask him. There's been some problems here with the applicant's health. Is it possible to have him here tomorrow at 8 a.m.?
PRISON AUTHORITY: Yes, I will try to be early therefore we'll be able to come early.
CHAIRPERSON: Okay, thank you. Will you see to it that he's here at eight o'clock tomorrow then?
PRISON AUTHORITY: I'll try. If you can help us also that we can start early.
CHAIRPERSON: Ja no, I want to start at half past eight tomorrow.
PRISON AUTHORITY: Thank you. I'm the one who will be bringing him here, therefore I'll bring him around that time.
CHAIRPERSON: Thanks. Mr Koopedi, tell me, there's one thing we want to establish from you. Have you got instructions from all these people whom you've mentioned?
MR KOOPEDI: That is correct so.
CHAIRPERSON: Are you going to call them all to give evidence?
MR KOOPEDI: I don't intend even calling them. Depending on how the proceedings go, I would just put their versions to him. But if there is need I might consider calling them, but at the moment the intention is not to call them.
CHAIRPERSON: Oh. And Mr Richard, as I understood your instructions, your single issue with the applicant is that he's not made full disclosure.
MR RICHARD: Chairperson, that is the central issue. It goes somewhat further and it is as pointed out, part of full disclosure. Whether he's established the political objectives and had the appropriate authority within the meaning of the Act. It's a part and parcel of the same issue.
CHAIRPERSON: If we postpone to half past eight tomorrow, would that be suitable to you?
MR RICHARD: I've made both today and tomorrow and Friday morning available at the Commission's convenience.
MR KOOPEDI: ... suitable to meet you Chairperson.
MR SHAI: That will be suitable Chairperson.
CHAIRPERSON: Ladies and gentlemen, ...(indistinct).
WITNESS EXCUSED
COMMITTEE ADJOURNS
