Amnesty Hearings

CHAIRPERSON: The Panel is constituted as has been indicated on the record. For the applicant we see it's Ms Makhubele.

MS MAKHUBELE: That's correct, Mr Chairman.

CHAIRPERSON: Very well and for the victims it's another well-known face, Ms Vilakazi.

MS VILAKAZI: That's correct.

CHAIRPERSON: Which victims are you representing?

MS VILAKAZI: The family of the deceased, Christopher Mabika.

CHAIRPERSON: Thank you. And then the Leader of Evidence is Ms Mtanga. Yes Miss Makhubele, is there anything else you want to add or do you want your client to take the oath?

MS MAKHUBELE: My client will take the oath Mr Chairman.

KESHLA TIMOTHY NKOSI: (sworn states)

CHAIRPERSON: Yes Ms Makhubele.

MS MAKHUBELE: Thank you Mr Chairman.

EXAMINATION BY MS MAKHUBELE: Mr Nkosi, you are the applicant in this matter, is this correct?

MR NKOSI: That's correct.

MS MAKHUBELE: You are 33 years old, also correct?

MR NKOSI: That's correct.

MS MAKHUBELE: On the 16th day of October 1991 at Lydenburg, you were convicted of the murder of one Christopher Mabika and sentenced to 18 years imprisonment, is this also correct?

MR NKOSI: That is correct.

MS MAKHUBELE: Where do you reside?

MR NKOSI: My home is in Tlaza J, eLukwatini.

MS MAKHUBELE: Whereabouts, which province?

MR NKOSI: Mpumalanga.

MS MAKHUBELE: This used to fall under the former KwaNdebele Government?

MR NKOSI: It was Kangwane.

MS MAKHUBELE: Kangwane, sorry. It's in respect of this conviction that you are here today to apply for amnesty.

MR NKOSI: That is correct.

MS MAKHUBELE: Can you briefly tell the Commission the events that took place on the day of the killing of Christopher Mabika?

MR NKOSI

On the 14th of September 1990 I was at home and I heard gunshots a distance away. That was unusual because that was a rural area. Many people were shocked to hear that gunshot. Many people ran towards the direction of the shots. I also left home, went towards that direction. When we came close we found a person who had been shot at and on closer inspection I realised that this person was a member of my family.

MS MAKHUBELE: Mr Nkosi can you just go slowly so that we can have your evidence? Don't rush. Take your time, explain.

MR NKOSI: Okay.

The person lying on the ground was my brother and he had been shot at and we did not know why he had been shot. There were many people around him at that time and these are the people who chased the deceased and he ran past and went into Jane's house and the people followed him. He left that house running and he was still being pursued. I was one of the people pursuing him. We ultimately caught up with him at Unit 4 where he was stoned and killed and we were then arrested, in fact it was my family that was arrested and taken to the police station.

INTERPRETER: The speaker's mike is not on.

MS MAKHUBELE: I'm sorry. You say you also chased, pursued him, caught up with him. He was hit. What role did you play there?

MR NKOSI: Actually because of the pain that I felt, I kicked him and also threw stones at him.

MR MAKHUBELE: Let's now go to this Christopher Mabika. Did you know him?

MR NKOSI: Sorry?

MS MAKHUBELE: Did you know Christopher Mabika?

MR NKOSI: Yes, I would see him around.

MS MAKHUBELE: Do you know what kind of a job he did?

MR NKOSI: I think he was a policeman.

MS MAKHUBELE: Do you think or do you know that he was a policeman?

MR NKOSI: I know it.

MS MAKHUBELE: Other than the events that you described that happened on the day that he was killed, do you know anything about him, whether he belonged to any political organisation?

MR NKOSI: I knew him to be a policeman, but I was a comrade in the community, responsible for community affairs.

MS MAKHUBELE: Did your brother survive the shooting?

MR NKOSI: He was shot twice in the head but he survived, on the forehead, but he did survive.

MS MAKHUBELE: Mr Nkosi in your application form the original, the translation, it is stated that paragraph 9 (a)(iv) that the person that was shot the day Christopher was killed died and now you have just described that it was your brother and he did survive the shooting. What can you tell us about this?

MR NKOSI: I did not hear you well. Please repeat that question.

MS MAKHUBELE: Or let me put it this way. During consultation it emerged that paragraph 9 (a) of your application form, that translation is not the same as the original one where you wrote it out yourself. In the translation it says that the person that was shot was killed. Do you remember this?

MR NKOSI: Yes, I do remember, but my brother did not die. He was shot but he survived.

CHAIRPERSON: Did you write out the original application? Did you write it?

MR NKOSI: Yes I did.

CHAIRPERSON: In what language?

MR NKOSI: In Seswati because I know the language.

CHAIRPERSON: So are you saying that this translation that we have is not right, not correct, there's an error in the translation that we have here?

MR NKOSI: I think the translator made a mistake.

CHAIRPERSON: Have you got that original before you there, the original application, the one that's in Seswati?

MR MAKHUBELE: Mr Chairman, I can show it to you.

CHAIRPERSON: Please do that Ms Makhubele.

MS MAKHUBELE: Can I ask him to read it?

CHAIRPERSON: Yes, let him rather. Ms Makhubele, just let him read those sections that are not right, where there's an error. He needn't read the whole thing.

MR LAX: Just while we're at it, are there any other sections that are incorrect?

MS MAKHUBELE: I will, Mr Chairman. With your permission, Mr Chairman, may the applicant read paragraph 9 (a) (iv)?

MS MTANGA: Chairperson, can I just make a request that, there's a reference to murder again on paragraph 9 (a) (i), so I would say he must read the whole of page 3. Yes.

CHAIRPERSON: I think so. Let him read 9(a)(i) first Ms Makhubele.

MR LAX: It's all on the same page, from the top of page 3.

CHAIRPERSON: Let him first read that and then (iv).

NR NKOSI

The murder of a policeman with the intention to burn him for suspicion of being a murderer. The following question, the date is the 14th of the 10th 1990.

MR LAX: One second, let us just write that down quickly.

INTERPRETER: Yes, he's starting to read from paragraph 4.

MR NKOSI

On the day that the policeman died, it happened that that policeman shot one of the comrades at Tlaza J. A group of people then assaulted the deceased and he died. He was stoned. Because the person who had been shot was my brother, this affected me badly. I was shocked because of that action and I found myself doing this action which led to the death of the deceased.

CHAIRPERSON: Just a minute.

MR MAKHUBELE: Thank you Mr Chairman. May I?

CHAIRPERSON: Yes, alright.

MR MAKHUBELE: May I confirm that in the translation it appears like this person who was shot by the deceased died, whereas in the original paragraph it doesn't say so.

CHAIRPERSON: Yes. The person didn't die and it was the applicant's brother and the policeman shot at this person, not at the group as it says here in the translation with us. Alright, we've noted that.

MS MAKHUBELE: Thank you Mr Chairman.

MR SIBANYONI: Maybe can we just also say the translator who translated this paragraph 4, was misled by the applicant using the word murderer on paragraph (a) (i), to say the act is applying, for which he applies for amnesty, was the killing of this man on suspicion of being a murderer. Immediately he used the word murdered, the person then assumed that the policeman has killed someone.

MS MAKHUBELE: Thank you Mr Sibanyoni. That will appear later why he used this word murderer but for now I just wanted to clarify that. Thank you Mr Chairman.

At the time of the killing of Mr Mabika, or during that year 1990, were you a member of a political organisation?

MR NKOSI: I was a comrade belonging to the Inyanza National Movement.

MS MAKHUBELE: In terms of national politics, do you know or can you tell us which organisation that Inyanza National Movement is aligned to?

MR NKOSI: This organisation existed in the Mpumalanga Province. It was dissolved and became part of the ANC. Comrade Zitha who led the Inyanza National Movement led that organisation into the ANC.

MS MAKHUBELE: Were you a card carrying member of that organisation?

MR NKOSI: Yes, I was.

MS MAKHUBELE: In relation to the political situation of the past, what was this oganisation faced with in your community? That is, what was the political climate at the time in your community?

MR NKOSI: The situation was not a very bad because the Inyanza organisation is the one that fought the then government against oppression.

MS MAKHUBELE: What was happening? What oppression was happening in your community that you were fighting against? You said you were a comrade, what activities were you involved in?

MR NKOSI: Firstly we resided in rural areas where there was no water, no electricity. We were struggling so that the government could provide us with such resources as water and so forth.

MS MAKHUBELE: How did the deceased fit in that political scenario you have just described?

MR NKOSI: Well the deceased as an employee of the then government, I do not think he would have approved of us doing activities like toyi-toyi and so forth.

MS MAKHUBELE: Did he actually prevent you from demonstrations, actually, the deceased?

MR NKOSI: Firstly, the police in general would assault you or even kill you if they saw you engaged in such. I would not single him out, but I would refer to police generally.

MS MAKHUBELE: Yes, Mr Nkosi, but let's assist the Commission. Did the deceased in that situation do anything which you would say was against your organisation?

MR NKOSI: ...(not translated)

MS MAKHUBELE: You have already testified that you were in a rural community, you demonstrate against basic living conditions and that the police in general, they were against your demonstrations, they would assault you, so I want you to fit the deceased in that scenario as a policeman. Is there any specific action which he did, which you would say was against what you as an organisation were fighting for? Is there anything that you can tell the Commission that Christopher Mabika did this and this on this day, did this and that and that. That's what I want you to tell the Commission.

MR NKOSI: Yes, there is something. Well I knew him. He used to be a very aggressive person and he was generally known to be a person who assaults people.

MS MAKHUBELE: Did he do anything specifically that you can point a finger at?

MR NKOSI: At one point he shot at one person at the rank.

MS MAKHUBELE: Who is that person that he shot at?

MR NKOSI: Mandla.

MS MAKHUBELE: Did this Mandla live?

MR NKOSI: I never saw him alive again.

MS MAKHUBELE: Did he die, is that what you are saying? That Christopher shot Mandla at the taxi rank and Mandla died?

MR NKOSI: Yes, I think so.

MR LAX: Sorry, do you know the circumstances around which he was shot?

MR NKOSI: Please repeat.

MR LAX: Do you know the circumstances around why he was shot?

MR NKOSI: I think it was because Mandla was a very active comrade.

MR LAX: But you don't have any personal knowledge of what it was all about?

MR NKOSI: That is the reason because we as comrades were not popular.

MS MAKHUBELE: What happened after this incident in which you say Mandla was shot? What was the feeling of the comrades and the community in general? Did anything happen?

MR NKOSI: We were very angry about it because we wanted him to be arrested.

MS MAKHUBELE: Was he arrested?

MR NKOSI: No.

MS MAKHUBELE: What did you do as an organisation and as comrades when Christopher was not arrested for Mandla's killing?

MR NKOSI: We marched to the Magistrates office to find out what was happening to the case.

MS MAKHUBELE: What was the result?

MR NKOSI: We never received any response up to this day.

MS MAKHUBELE: Was there any point where the organisation had a discussion about the actions of Christopher, where anything would have been said about him?

MR NKOSI: The comrades would normally meet, wanting to find out what happened to the issue or the case.

MS MAKHUBELE: What happened in that meeting?

MR NKOSI: We decided to confront him at his house so that we could revenge ourselves.

MS MAKHUBELE: How?

MR NKOSI: In those times comrades would normally assault you, take you and burn you.

MR MAKHUBELE: Mr Nkosi, can we be specific. Don't generalise. I want you to be specific about the Christopher issue. What in the meeting of the comrades was said about the incident where he shot Mandla and what action was taken. Please do not generalise Mr Nkosi.

MR NKOSI: We decided that he should be killed or burned.

MS MAKHUBELE: Did you do that?

MR NKOSI: No, it didn't happen because we would not be able to get hold of him.

MS MAKHUBELE: But did you at any stage go to his home before his death to carry out your decision to either kill him or burn him?

MR NKOSI: Yes, we did.

MS MAKHUBELE: When was this?

MR NKOSI: Around June 1999.

MS MAKHUBELE: What happened there when you got to his home and you didn't find him?

MR NKOSI: He was not at home, so we just broke the windows.

MS MAKHUBELE: Do you know any specific person who came up with that suggestion that he should be killed?

MR NKOSI: You mean at the meeting?

MS MAKHUBELE: Yes.

MR NKOSI: It was the Chairman.

MS MAKHUBELE: Who is it?

MR NKOSI: Solly Mhlule.

MS MAKHUBELE: How many months or days between the incident where you went to his home and broke windows and his death, actual death?

MR NKOSI: Two months.

MR LAX: Listen, the thing - you went there in June and you broke the windows and he was killed on the 14th of October 1990, that's four months.

MS MAKHUBELE: Thanks Mr Lax. At the time, let's go back to the actual incident. At the time when you heard the shots being fired and you went to the scene, did you know that the person that he had shot at that time was your brother?

MR NKOSI: No, I just heard shots.

MS MAKHUBELE: Did you get anything for taking part in this stoning and kicking until he died?

MR NKOSI: No, I did not receive anything.

MS MAKHUBELE: What would you say if it can be suggested that the fact that your brother was shot by the deceased on that day and you participated along with the crowd to kill him, amounts to, this in itself amounts to a benefit for you? What can you say to this suggestion?

MR LAX: Sorry, Ma'am, doesn't it amount to malice, rather than a benefit? It's a personal motive rather than anything else?

MS MAKHUBELE: Yes, may I then rephrase it to say that he was motivated by monies, that he wanted to revenge for his brother's death, what would you say to this?

CHAIRPERSON: And that it had nothing to do with politics, what do you say to that?

MR NKOSI: I would dispute that.

MS MAKHUBELE: When you went to the scene and had you found that the victim who had been shot is someone else other than your brother, would you have reacted the same way? Participate in his killing?

MR NKOSI: Yes because he was a policeman.

CHAIRPERSON: Was your brother also a comrade?

MR NKOSI: ...(not translated)

CHAIRPERSON: Was your brother also a comrade?

MR NKOSI: Yes, but he was employed, so he was not very involved in the activities.

CHAIRPERSON: He was not as active as you were, but he was a comrade but he was not as active as you were.

MR NKOSI: Yes, that is correct. He was a person who was employed somewhere in Johannesburg. He would go home only when he had some days off.

CHAIRPERSON: Ms Makhubele.

MS MAKHUBELE: Thank you. In the trial it emerged that, well it was not contested that you were not there when your brother was shot, but it emerged that your brother and the deceased, the fight was about a girlfriend. Did you come to know about this?

MR NKOSI: No, not at all, I don't know anything about that squabble.

MS MAKHUBELE: In your application you say that no order was given, that is to kill the deceased. Today you testify that Mbule gave the order. What can you tell the Commission about this, although it was not carried immediately, four months passed in between?

MR NKOSI: In my application it's not possible for me... (intervention)

MR LAX: Can you just speak a bit further away from the mike because it causes it to distort? Thank you.

MR NKOSI: I am saying it was not possible for me to state everything there because the paper was not enough. I could have included it but there was no space there.

MS MAKHUBELE: so it's your evidence that when you took part in his killing, it was because you perceived him as a threat to your organisation and as an order had already been given earlier on for him to be killed, did you hear what the others' reasons were for participating in his stoning at the time?

MR NKOSI: People were angry. I can say it was because of anger.

MS MAKHUBELE: As a result of?

MR NKOSI: Because of this innocent person who was shot at. He was lying down there without a reason, no one knew what had happened and that was not happening for the very first time because it had happened before.

MS MAKHUBELE: Thank you Mr Nkosi. For now, that's the evidence, Mr Chairman.

NO FURTHER QUESTIONS BY MS MAKHUBELE

CHAIRPERSON: Thank you, Ma'am. Ms Vilakazi, have you got any questions?

MS VILAKAZI: Mr Chair, there's quite a few points that were raised in the evidence in chief which I would require to take instructions on before going on cross-examination. May I be allowed the opportunity to take instructions? I don't think there'll be need for the Panel to rise, I need just a few minutes.

CHAIRPERSON: Yes. No that's in order Ms Vilakazi.

MS VILAKAZI: Thank you Chairperson. I'm ready to proceed.

CHAIRPERSON: You surprised us Ms Vilakazi. Please go ahead.

CROSS-EXAMINATION BY MS VILAKAZI: Mr Nkosi, when you gave ...

MR LAX: Just put your microphone on, please. Thank you.

MS VILAKAZI: Mr Nkosi, when you gave evidence you said that in response to the question that was asked to you as to what role did you play in the killing of the deceased, you said that you kicked him and threw stones at him. Did I hear you correctly?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: I'm putting it to you that that is not correct because you were seen at the scene of the crime holding a knife and the deceased was stabbed several times. What is your comment on that?

MR NKOSI: There were many people there and a person who would say that he saw me with a knife, I don't think that is true because there were many people on that scene.

MS VILAKAZI: So are you denying that you had a knife?

MR NKOSI: Yes, I dispute that because I don't normally carry a knife.

MS VILAKAZI: In your evidence you have also made reference to your political affiliation being to Inyanza Political Organisation and you said that that organisation was fighting the government against oppression. I'm putting it to you that the Inyanza Political Organisation was the governing political organisation, so therefore it was not possible for Inyanza to oppose government, what is your comment?

MR NKOSI: That is a mistake. That is a big mistake because there was no relationship between the boers and the Inyanza.

MR LAX: Which ...(intervention)

MS VILAKAZI: I'm sorry.

MR LAX: Which political organisation was in charge of that homeland at that time?

MR NKOSI: Will the speaker please repeat the question?

MR LAX: Which political organisation was running the homeland at that time?

MR NKOSI: It was Inyanza National Movement only.

MR LAX: Well that's exactly what the advocate's just put to you.

MR NKOSI: It looks like she is saying that it had a relation with the government.

MR LAX: It was the government of the homeland.

CHAIRPERSON: Which government are you referring to, Mr Nkosi? Are you referring to ...(intervention)

MR NKOSI: I am talking about the boer government of South Africa.

CHAIRPERSON: You talk about the apartheid government?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And are you saying that this organisation had no contact with the apartheid government?

MR NKOSI: Yes.

CHAIRPERSON: And it was engaged in fighting the oppression of that apartheid government of Pretoria?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: But the Homeland, Kangwane Homeland government, in the Homeland itself, in the apartheid Homeland?

MR NKOSI: Will you please repeat the question, Sir.

CHAIRPERSON: Now I want to come - I know now you've spoke about the Pretoria government, now I'm coming to the government in the Homeland in Kangwane at that stage. Now Ms Vilakazi says that this Inyanza National Movement was the governing party in Kangwane at that time. Is that right?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Alright. Yes, Ms Vilakazi.

MS VILAKAZI: Mr Chair can I repeat my statement to him and get his response in the light of the fact that he's now clarified the position.

CHAIRPERSON: Yes, perhaps you must make it clear the distinction between Pretoria and Kangwane so that he's not under a misapprehension which one you're referring to. I assume your question is directed at the Kangwane situation?

Alright. Perhaps you must just make it clear when you repeat it to him.

MS MAKHUBELE: Before she proceeds, Mr Chairman, in his answer I wanted the interpreter to complete the interpretation. I don't know, maybe there's something wrong with my earphones but then he said something about comrade Tambo and Mabuza which was not translated. It was not interpreted.

CHAIRPERSON: Have you missed that? Shall we ask him to repeat that?

MS MAKHUBELE: The answer, yes.

CHAIRPERSON: Mr Nkosi, we spoke too much. Unfortunately the interpreter didn't hear everything. You said, you referred, did you hear now what your advocate said, Ms Makhubele? She says that you added something further to your answer about some people, comrades or whatever? Just repeat it.

MR NKOSI: I said I do not believe that Inyanza National Movement can be associated with the boer government because Comrade Enos Mabuza managed to go and visit Comrade Oliver Tambo in Lusaka, therefore that would not be possible for Comrade Mabuza to be in favour of that boer government.

MS MAKHUBELE: Thanks Mr Chair.

CHAIRPERSON: Ms Vilakazi, you can try again.

MS VILAKAZI: Okay in the light of what you have just said now, the government which was governing the area that you stayed in was the government of Kangwane, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: And the ruling party in that government was the Inyanza National Movement as you call it, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: So, if you were not satisfied about the delivery of services, you would direct your misapprehension to that government, is that correct?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: So you were not fighting the Inyanza, the government in Kangwane, is that correct?

MR NKOSI: The Kangwane government is the one that we would approach if he is not delivering, we have the right to fight the government because we would be the people who put that government in place.

MS VILAKAZI: Well I will not pursue that matter any further.

CHAIRPERSON: Politics are always very confusing.

MS VILAKAZI: Okay. In your evidence you also made reference to an incident at the taxi rank where Mandla was shot. Do you remember that?

MR NKOSI: Yes, that is correct.

MS VILAKAZI: I am putting it to you that the incident that took place at the taxi rank which involved the deceased did not involve any shooting at all. What is your comment?

MR NKOSI: That is news to me.

MS VILAKAZI: And also that it is the deceased and his sister who were attacked, they were not the aggressors, what is your comment?

MR NKOSI: I said that is news to me.

MS VILAKAZI: Were you there at the taxi rank, or did you just hear about that incident?

MR NKOSI: Yes, I was there at the scene, I was there at the taxi rank.

MS VILAKAZI: And who was the deceased with?

MR NKOSI: I saw him alone.

MS VILAKAZI: How do you know that the person you alleged shot, is the deceased?

MR NKOSI: I said I knew the deceased.

MS VILAKAZI: Okay. You also referred to a march that took place to the Magistrates office, I'm putting it to you that no such march took place, what is your comment?

MR NKOSI: Myself and the school children, I was once an organiser for that kind of a march.

MS VILAKAZI: You also made reference to a group of people marching to the home of the deceased after a decision was taken that the deceased should be attacked. Did you march to the deceased's home? Did I understand you to say you marched to his home?

MR NKOSI: Yes, we went straight to his home.

MS VILAKAZI: And where is that home?

MR NKOSI: It was at No. 1, Ntlazashe, just towards the bridge.

MS VILAKAZI: I'm putting it to you that the deceased did not stay at his home, he stayed at the police barracks.

MR NKOSI: But we found him there, he used to be there all the time.

MS VILAKAZI: When you say there, what do you refer to? At the barracks or at No 1 Ntlazashe?

MR NKOSI: I am talking about this particular house that I refer to it as his home, he used to be there all the time.

MR LAX: Did I hear you correctly to say you found him there?

MR NKOSI: Sorry?

MR LAX: You just said, we found him there at this house.

MR NKOSI: On that day of the march he was not there, it's only the mother who was there.

MS VILAKAZI: So when you say that you found him there, what were you referring to?

MR NKOSI: I was saying all the time when we would be passing by, we used to see him there in that particular house.

MS VILAKAZI: I want to refer you to your application. On page 11 of the translation, in response to question in paragraph 9 (a) (i), it's the same paragraph that was referred to earlier on, you said the acts that you are applying amnesty for are the killing of a policeman by burning him alive.

MR NKOSI: Killing of a policeman.

MS VILAKAZI: But in your form it says: "by burning him alive".

CHAIRPERSON: Is that what the original says? Have you looked at your original.

MS VILAKAZI: I'm looking at it.

CHAIRPERSON: Oh, you can also read the original.

MR NKOSI: ...(not translated)

MS VILAKAZI: Yes.

MR NKOSI: It is possible that there was a mistake when I was writing there, but he was ...(indistinct) with stones.

MS MAKHUBELE: Well, Chairperson, if I may just come in.

Original says with the intention.

CHAIRPERSON: With the intention?

MS MAKHUBELE: With the intention to burn him.

CHAIRPERSON: Oh, with the intention to burn him.

MS MAKHUBELE: Yes, that's on page 3.

CHAIRPERSON: So we should add in here...

MS MAKHUBELE: Murder of a policeman with the intention to burn him.

CHAIRPERSON: With the intention.

MS MAKHUBELE: Yes.

MR NKOSI: I am sure that he was not burned.

CHAIRPERSON: Yes. Ms Vilakazi, I don't know if you can read the original.

MS VILAKAZI: Yes, I've ...

CHAIRPERSON: Do you agree with that?

MS VILAKAZI: Well, my understanding of Seswati is not that good.

CHAIRPERSON: Oh okay, okay. No alright. It's not necessary to test that knowledge.

MS VILAKAZI: On answering question 11 (a) I would start with the English version. The question related to whether an instruction was, or an order was issued for the action to take place, then the answer is no, except that the comrades were acting in the interest of the community and protecting same. In the original the answer is ..., means no, isn't it?

MR NKOSI: I am not clear as to what you are talking about Ma'am. At the moment I don't have that form with me.

MS VILAKAZI: Mr Chairperson, I would ask that his legal representative assist him.

MS MAKHUBELE: I have just him, ... and no are the same thing which is in the translation as well as the original.

CHAIRPERSON: So he agrees with that translation, that ...(ethnic) means no.

MS MAKHUBELE: Yes.

CHAIRPERSON: Alright. Ms Vilakazi.

MR NKOSI: Yes, that is correct.

MS VILAKAZI: And then you proceeded to write in that paragraph, I'll read it in Seswati....(ethnic) In English it's translated

"Except that the comrades were acting in the interests of the community and protecting same."

So in your application, you specifically said that you were not acting in pursuance of instructions. You said "No". Now when your counsel asked you why, you said you were not given any instructions, you said it's because the space was small, there wasn't enough space. Now I'm putting it to you that you gave a definite answer and the definite answer is "no." It's a direct answer to the question and that you had sufficient space to explain whatever you would have wanted to explain, if you wanted to explain something else. There's no reason why you wrote something that you meant.

MR NKOSI: I understand you question but do you think that there was sufficient time but according to me there was not enough space there because I could have explained a lot but I decided to put just a little bit because the space there was not enough.

MS VILAKAZI: Mr Chairman, I'd no ...(mike not on)

NO FURTHER QUESTIONS BY MS VILAKAZI

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga, have you got questions?

MS MTANGA: Yes, Chairperson.

CROSS-EXAMINATION BY MS MTANGA: Mr Nkosi, why was your brother shot by the applicant?

MR NKOSI: I was not with my brother. I did mention that I was not always in the company of my brother because he was the eldest. Most of the time I was not there with him. When I got out of my home I saw him lying there when he was shot at.

MS MTANGA: I'm sorry, I made a mistake when I said the applicant, I meant the deceased. You were in court and some evidence was tendered as to what had happened between your brother and the deceased. Can you tell this Panel what had happened, what was said in court?

MR NKOSI: In court everything was in Afrikaans and I did not understand Afrikaans. I did not hear a thing up till the end of the proceedings.

CHAIRPERSON: Wasn't there an interpreter, that interpreted for you into Seswati?

MR NKOSI: There was a person who was interpreting but he was doing it in Pedi and I also do not understand that language.

CHAIRPERSON: Were you the only accused?

MR NKOSI: In that case, if I'm not mistaken, we were 5 or 6.

CHAIRPERSON: 6 accused I'm told. And are there some of them that speak Pedi?

MR NKOSI: Do you mean among us?

CHAIRPERSON: Because you say that this interpreter was speaking some other language. He was not interpreting in Seswati. He was speaking some other language.

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Now was there amongst those accused, those 6 of you, were there people who spoke that language that the interpreter was interpreting into?

MR NKOSI: Lukas Shabangu understood Pedi. Some of them understood that language because they were working in the firms and I was just fresh from school at the time.

CHAIRPERSON: Somebody said here that they allege there that your brother and the deceased were arguing about a girlfriend.

MR NKOSI: Yes, I heard that.

CHAIRPERSON: Were they talking about that in court, about this girlfriend story?

MR NKOSI: Yes, they were talking about this girl that I don't know about.

CHAIRPERSON: Alright. Yes, Ms Mtanga.

MS MTANGA: Thank you Chairperson. Chairperson I would just like to point out that I would find it a serious travesty of justice from our courts of law to have evidence led in Pedi when the victims were Swazi speaking and all the applicants were Swazi speaking, so I have serious doubts about what the applicant is saying because surely they would have led their evidence in Seswati as well when they were responding to the questions put to them.

CHAIRPERSON: Yes, I think one normally expects that they are supposed to provide interpreters who would interpret into the language that the accused speak, that's what one normally expects to happen in court, but he does say that he'd heard something about the girlfriend story so perhaps that is a point of ...(indistinct)

MR LAX: Sorry, what language did you testify in Mr Nkosi?

MR NKOSI: ...(not translated)

MR LAX: What language did you testify in?

MR NKOSI: I used the language that I'm using now.

MR LAX: Yes. And they were able to translate that fairly adequately it would seem.

MR NKOSI: I hope they managed to interpret that.

MR LAX: No, fine.

CHAIRPERSON: In which year were you tried? Oh, 91. Alright. Yes, Ms Mtanga.

MR NKOSI: In 1990 on the 16th October.

CHAIRPERSON: Yes.

MS MTANGA: Are you aware that the evidence that was there in court ...

CHAIRPERSON: Oh you were tried by a Circuit Supreme Court that was sitting at Lydenburg it seems.

MR NKOSI: That is correct.

CHAIRPERSON: Yes. So it wasn't at the regular court house, this was a travelling court. The Judge and everybody else travels around, they take interpreters too. It seems like you were tried in one of those courts.

MS MTANGA: Can I go ahead, Chair?

CHAIRPERSON: Yes, go ahead Ms Mtanga.

MS MTANGA: The evidence that was led in court was to the effect that your brother whom you allege was shot at by the applicant, had assaulted the girlfriend of the deceased. Did you explore the truthfulness, did you verify the truthfulness of this with your brother?

MR NKOSI: After we were sentenced he was also in jail and he told me that there was a quarrel between him and that girlfriend.

MS MTANGA: So the witness who gave evidence there was your brother's girlfriend. Do you admit that? A certain person by the name of Selinah Bembe gave evidence.

MR NKOSI: My brother had a wife. I don't know whether he had another girlfriend, except his wife.

MR LAX: But you've just said to us, you said to us now that you spoke to your brother about this and he confirmed that it was a quarrel over this girl.

CHAIRPERSON: Whose girl was it? Was it the deceased's girl or was it your brother's girl, whose girlfriend was this? Do you know?

MR NKOSI: He told me that there was a quarrel between him and a girl, that's what led us to prison.

CHAIRPERSON: So he had an argument with a girl and that's how this deceased became involved.

MR NKOSI: I am not sure whether they fought but when I went out I saw my brother who was shot. That is when I rushed to the direction of the noise. I don't know when this squabble had started. I knew nothing about it.

CHAIRPERSON: You don't know whether your brother had a girlfriend or not?

MR NKOSI: No, I don't know.

MS MTANGA: I also wish to point out to you Mr Nkosi that even though this girl denied that she had a relationship with your brother, your brother's counsel put it to the witness who was this girl that it's alleged that he had assaulted, that she had a relationship with your brother and this must have been at the, the counsel must have been acting upon instructions given by your brother who was at this scene with the girlfriend and the deceased. What do you say to that?

MR NKOSI: Are you talking about my brother's counsel?

MS MTANGA: Yes, Mr Nkosi.

CHAIRPERSON: Mr Nkosi ...(intervention)

MR NKOSI: I cannot comment about that.

CHAIRPERSON: Alright. I don't know how far it's going to take us.

MS MTANGA: That is the evidence that was led in court and based on the evidence given in court and what you've told us here today, you don't seem to know exactly what took place between the deceased and your brother which led to your brother being shot. So what I'm trying to point out to you, that the evidence that was led in court, which your brother seemed to have supported in some way was that there was a fight over the girl, the woman the deceased was with. The fight was between your brother and the policeman, but it was not because your brother was a comrade, it was over the girl that the deceased was with. What do you say to this?

MR NKOSI: No, I cannot comment to that effect. I do not know anything about that.

MS MTANGA: This brings me to my final point, Mr Nkosi that your killing of the deceased had nothing to do with politics. The source of the dispute on that day was this attack on your brother and the attack of your brother resulted from, did not result from politics but from a personal squabble between the two people and therefore you cannot claim that this incident was political. What do you say to this?

MR NKOSI: I do not have a response to that. I don't even know what was the reason for them to fight.

MS MTANGA: No further questions, Chairperson.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you Ma'am. Are there any questions from the Panel?

MR SIBANYONI: Did you know that people apply for amnesty only for political acts?

MR NKOSI: Yes I do know that.

MR SIBANYONI: What you did in killing the deceased, would you say, was it political?

MR NKOSI: Yes, it is politically motivated.

MR SIBANYONI: What way?

MR NKOSI: I did indicate that the deceased was involved in some incident as a perpetrator and he was later found. This other case is an exception but he was later involved in a squabble between him and the comrades.

MR SIBANYONI: But you took action against him for killing your brother, is that not so, for shooting your brother, let me correct myself.

MR NKOSI: He was assaulted by a group of people because it was well-known that he was once involved in some incident as a perpetrator, that is why he was killed.

MR SIBANYONI: If he hadn't shot your brother on that day, he wouldn't have been killed on that day, do you agree?

MR NKOSI: Yes he would not be killed on that particular day but after some time he would later be found because the police were not doing their job properly and we wanted to know why did they fire some shots at the taxi rank.

MR SIBANYONI: And you have just considered that you can't dispute the fact that the squabble between your brother and the deceased was over a girlfriend, is that so?

MR NKOSI: I said I don't know what is it that they were fighting for.

MR SIBANYONI: And you can't say it was political?

MR NKOSI: That would not be politically motivated if it is said that they were fighting over a girl. I cannot say that is political.

MR SIBANYONI: I heard you saying in one of your answers, your brother said to you, "You are now arrested, you are in jail over a girl". Did I understand you correctly?

MR NKOSI: Did he say that I was arrested for a girl?

MR SIBANYONI: No that the cause of your arrest started over a dispute over a girl. Did I understand you correctly?

MR NKOSI: Yes, that is correct.

MR SIBANYONI: Thank you, Mr Chairperson.

MR LAX: Just one small thing Chair.

CHAIRPERSON: Yes.

MR LAX: Isn't it correct, when you saw your brother lying there you got angry, you were shocked, you decided you were going to chase this man who had done this thing to your brother?

MR NKOSI: I have a problem with my headphones Sir, I did not hear your question.

MR LAX: Can you hear now?

MR NKOSI: Yes, it is better now.

MR LAX: Isn't it so that you testified that when you saw your brother had been shot, when you recognised the person lying on the ground as your bother you got very angry and you decided to chase the person responsible?

MR NKOSI: Yes, I said so.

MR LAX: And so the reason why you chased him and ultimately assaulted him wasn't because of the order you had got at some point previously, four months earlier, it was because you were angry at seeing your brother lying there on the ground, shot.

MR NKOSI: No, that is not correct.

MR LAX: You would have us believe that this policeman was a wanted person in the community.

MR NKOSI: Yes, that is correct.

MR LAX: And yet on your own version, you saw him regularly at his house when you passed that place. He wasn't always in the barracks and four months passes between the time you first go and look for him to the time of this incident. And in fact on the day in question, you brother is walking with other people, they don't attack this man, in fact they have a quarrel with the girlfriend. Why did nothing happen to him in the intervening period?

MR NKOSI: I did mention that my brother would come only once in a time when he was off at work but it was just a coincidence that when he was off and this incident took place.

MR LAX: Was he only off once in four months?

MR NKOSI: He would come home once or twice a year.

MR LAX: Wouldn't you agree that a person walking down the road normally with his girlfriend, open to everybody is hardly the action of a man that's wanted, that has to worry about his safety all the time?

MR NKOSI: Yes, that is possible, because if you are armed with a firearm you could do that.

MR LAX: No further questions.

CHAIRPERSON: Was there a group of people that attacked this deceased?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Were there any other of your family members in this group of attackers?

MR NKOSI: Yes, there were other family members.

CHAIRPERSON: And how large was this group of people, group of attackers?

MR NKOSI: Do you mean all of them? There were many. There were a lot of people who were there at that scene.

CHAIRPERSON: Was it a large crowd?

MR NKOSI: Yes, that is correct because it was next to the school and there were even children who were coming out of school.

CHAIRPERSON: Were your family members, were you in the minority in this group or were you the majority in the group, or what?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: What? Were you in the minority or the majority?

MR NKOSI: The people were in the majority and our family was in the minority of the group.

CHAIRPERSON: And they all participated in killing this policeman?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: Was the intention to burn him, or what?

MR NKOSI: There were petrol bombs, if there were petrol bombs and the other stuff that could be used, that would have happened.

CHAIRPERSON: Were there occasions, let me ask you this. People who committed crimes in your area there, were they arrested by the police?

MR NKOSI: Yes, they would be arrested by police.

CHAIRPERSON: Would people go and make cases against offenders and go to the police, they would lay a charge there, the police would then go and arrest the person, take him, lock him up, take him to court.

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And were there - was that sort of thing happening there? People went to report cases to the police and people got arrested for committing crimes and so on?

MR NKOSI: Yes, that is correct. That used to happen.

CHAIRPERSON: Did anybody suggest that that policeman should be, after he fired the shots, that a case should be made against him?

MR NKOSI: As I did indicate that in our meeting we discussed about this issue.

CHAIRPERSON: And on the scene of this, now we come to the scene where your brother has been shot, was there anybody there that was saying: "Look, let's go and lay a charge against this man"?

MR NKOSI: No, no-one suggested that.

CHAIRPERSON: They rather just attacked him.

MR NKOSI: It was only suggested that he should be attacked.

CHAIRPERSON: Yes. Did you try to lay a charge against this deceased on a previous occasion?

MR NKOSI: Yes, we once tried.

CHAIRPERSON: Was it because of that incident at the taxi rank?

MR NKOSI: Yes, that is correct.

CHAIRPERSON: And did you say nothing came of that case?

MR NKOSI: They would not listen to the grievances of the community.

CHAIRPERSON: Was that the only case that the people tried to make against this deceased, or were there other charges as well that they tried to make against him?

MR NKOSI: That was the only incident.

CHAIRPERSON: Yes. Thank you.

MR LAX: If I can just, Chair, sorry there's something I forgot to ask about it, I've just remembered now and that was, do you remember the evidence of Mr Zulu in the trial?

MR NKOSI: No, I cannot say I can still remember because that happened some time ago. I was sentenced 8 years ago. I don't know whether I can still remember something.

MR LAX: Well Mr Zulu was the man who was sitting in his house when the deceased ran into the yard. He says that the deceased was chased by only 5 people. He then proceeds to describe how the five of you assaulted the deceased and how you left him at the gate. He doesn't talk about a huge crowd of people, he says there were just five of you and that evidence was accepted by the Judge in the trial. So can you explain this?

MR NKOSI: Yes, I can explain that. I also want to say that Mr Zulu was the one who was supposed to be burned because everything that he mentioned in court, he was doing that because the police instructed him to do so. He knew nothing. The deceased never got inside his house, he was just at the gate but now he is talking about 5 people, everything that he was saying, he was not there and it's not true.

MR LAX: So you didn't assault the accused at the gate of his house? You didn't stone him and kick him and all the other things that happened to him there, hit his head with rocks and so on?

MR NKOSI: I want to explain that one. The deceased was taken from that gate and he was taken down next to St John's. The St John's was near, he was not assaulted, he was only assaulted next to St John's, next to the river, he was never assaulted at Mr Zulu's gate.

MR LAX: No further questions, Chair.

MR SIBANYONI: Chairperson, I forgot to ask something.

CHAIRPERSON: Yes.

MR SIBANYONI: Mr Nkosi, was the deceased employed by the South African government or by the Kangwane government?

MR NKOSI: I think that the police were employed by the South African government though I am not sure about this.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: Thank you. Any re-examination, Ms Makhubele?

RE-EXAMINATION BY MS MAKHUBELE: Yes, Mr Chairman. It's just one or two issues. The first which I said I will clarify in his application on page 3. When you, Mr Sibanyoni, said that the translator was probably confused by the word that you said, "murderer", when you called the deceased murderer, what were you referring to?

MR NKOSI: Because he killed the people and then he was doing it for the second time, so it meant that he was a murderer.

MS MAKHUBELE: Another thing was you appeared to be confused about the political scenarios. During 1990 would you say, rather let me put it this way. Would you say the transition when Inyanza, when you said Inyanza became part of ANC and the transition into the new government, who were you actually fighting against? The Inyanza or the incoming government?

MR NKOSI: We were fighting the boer government.

MS MAKHUBELE: I have nothing further to address.

CHAIRPERSON: Thank you, Makhubele. Yes Mr Nkosi you're excused, thank you.

WITNESS EXCUSED

CHAIRPERSON: Yes, Ms Makhubele.

MS MAKHUBELE: That's the applicant's evidence.

CHAIRPERSON: Is that the applicant's case?

MS MAKHUBELE: Yes.

CHAIRPERSON: Thank you. Ms Vilakazi, have you got any evidence that you intend to tender?

MS VILAKAZI: Thank you Mr Chairman. I would tender evidence by calling one witness.

CHAIRPERSON: Yes, who's that man?

MS VILAKAZI: Sibongile Hlanga.

CHAIRPERSON: Would that witness please come forward? What is his surname?

MS VILAKAZI: Hlanga.

SIBONGILE HLANGA:: (sworn states)

CHAIRPERSON: Yes, ms Vilakazi.

EXAMINATION BY MS VILAKAZI: Mrs Hlanga, the deceased Christopher Mabika was your brother, is that correct?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: What job do you do, Ms Hlanga?

MS HLANGA: I am a policewoman.

MS VILAKAZI: Were you a policewoman in September 1990 at the time when your deceased died?

MS HLANGA: Yes, I was still a policewoman.

MS VILAKAZI: When did you become a police officer?

MS HLANGA: I joined in 1986 December.

MS VILAKAZI: Where were you stationed?

MS HLANGA: At eLukwatini.

MS VILAKAZI: Were you also stationed at eLukwatini around the time of your brother's death?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: The applicant in this matter has stated that eLukwatini is a rural area. Do you confirm or dispute that?

MS HLANGA: Yes, I agree with that.

MS VILAKAZI: What was the political climate at that area of eLukwatini?

MS HLANGA: There was nothing much because all of us, we were belonging to Inyanza and even our emblem was Inyanza even though there was another party, Ntsika, but there was no conflict between the two.

MS VILAKAZI: The Inyanza political party was the ruling party, is that correct?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: And what was the relationship between Inyanza and the Ntsika Political Party that you have referred to? Would you say there was a hostile environment between the two political parties?

MS HLANGA: I cannot say because I was not a member of Ntsika, I was just belonging to Inyanza.

MS VILAKAZI: In the area of eLukwatini, were there any political upheavals around the time of 1990?

MS HLANGA: No, there were no political upheavals.

MR SIBANYONI: Ms Vilakazi, may I ask one question while we are still there? Did your brother belong to any political party?

MS HLANGA: No he did not belong to any political party, he was just belonging to Inyanza because even the police belonged to Inyanza.

MR SIBANYONI: Was he a member or a supporter of Inyanza?

MS HLANGA: No, not at all.

MR SIBANYONI: What was he of Inyanza, because you say he was with Inyanza?

MS HLANGA: The Police Force, the Kangwane Police Force was referred to as Inyanza even our badges were written Inyanza, but we were not members of the political parties.

MR SIBANYONI: What badges are you referring to?

MS HLANGA: The emblem of the cap and the shoulder, the ranks of the police.

MR SIBANYONI: It was written Inyanza?

MS HLANGA: Yes, that is correct.

MR SIBANYONI: Thank you.

MS VILAKAZI: Ms Hlanga, were there any comrades in the area of eLukwatini?

MS HLANGA: Yes, there were comrades but not that much.

MS VILAKAZI: To which political organisation did those comrades belong to?

MS HLANGA: We would see them at the police station when there is a case. We used to see them there when they were at the police station, but I do not know which party they belonged to.

MS VILAKAZI: So those comrades were concerned with community matters, would you say so?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: And not necessarily political matters.

MS HLANGA: No.

MS VILAKAZI: What was the attitude of the community towards the police at that time?

MS HLANGA: There was no problem at all. People were free to do as they please.

MS VILAKAZI: Do you mean that the policemen would walk around freely around the community?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Do you know if any police officer was attacked for being a policeman?

MS HLANGA: No I just heard for the very first time about my brother.

MS VILAKAZI: At the time of your brother's death, were you there at the scene of the crime?

MS HLANGA: I was called while I was in the barracks. I was told that he was assaulted and then I went there.

MS VILAKAZI: When you arrived at the scene, was your brother still alive?

MS HLANGA: He was lying there looking up and I called him, I said: ...(indistinct) and then he looked on the other side and I said: "He's dead" and then he said, this one, the applicant said: "Oh this dog is not dead". He said: "Why this dog cannot bark", that's what Keshla said.

MS VILAKAZI: Do you know why your brother was killed?

MS HLANGA: I heard that in court in Lydenburg.

MS VILAKAZI: And what was said was the reason for his death?

MS HLANGA: They said Keshla's brother asked for a cigarette and my brother refused to give him and then they said why would he propose a girl from Ntlazashe because he did not belong there and that is when this whole thing started.

MS VILAKAZI: So this girl that was made reference to in court, do you know who it was?

MS HLANGA: Yes, I know her.

MS VILAKAZI: Who was it?

MS HLANGA: Her surname was Bembe, Jane Bembe, the name is Jane and the surname is Bembe.

MS VILAKAZI: Was there any relationship between this Jane Bembe and your brother?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: What was the relationship?

MR HLANGA: They were in love.

MS VILAKAZI: Your brother was also a police officer, that has been confirmed. Where was he staying?

MS HLANGA: He was staying at the barracks.

MS VILAKAZI: The applicant made reference to number 1 Ntlazashe, do you know that address?

MS HLANGA: That is where his girlfriend was staying.

MS VILAKAZI: Did you brother stay with his girlfriend at that address?

MS HLANGA: No, he was not staying with her. He would pay her a visit and go back to the barracks.

MS VILAKAZI: The applicant in this matter made reference to an incident that happened at the taxi rank which involved your deceased brother. Do you know about any incident which involved your deceased brother that took place at the taxi rank? Can you tell the Committee about that incident?

MS HLANGA: Yes, I know about that incident. We were off at about 4. We took taxis.

MS VILAKAZI: When you say "we", who are you referring to?

MS HLANGA: Oh, okay. We had a day off with Dumisa Christopher. We left at about 4. We took taxis. We bordered taxis to cross roads of Ntlazashe. When we arrived there we did not get the taxis. We couldn't get the taxis to Barberton and we hitch hiked there and we got a lift. Taxi drivers came and they assaulted us telling us that we are not supposed to hitch hike before their taxis and we went to the police station to open the case and on that particular day we did not have firearms.

MS VILAKAZI: So are you saying that you were attacked by taxi operators for hitch hiking?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Is there any other incident which took place at the taxi rank in which your brother was involved?

MS HLANGA: No, there's no other incident.

MS VILAKAZI: The applicant said that subsequent to that incident at the taxi rank, the members of the community went to report the matter to the police station.

MS HLANGA: He is lying.

MS VILAKAZI: If that happened would you have known of that?

MS HLANGA: Yes, it would be possible for me to know about that because when I laid charges because I was assaulted and even the one who would claim that he was shot at and Keshla would be there and we would see that particular person and he would also lay charges.

MS VILAKAZI: The applicant also made reference to a march that took place to the magistrate's offices. Was there any such march?

MS HLANGA: No, I do not remember.

MS VILAKAZI: During your stay at the time when you were working at eLukwatini, do you remember any time when the members of the community held a march?

MS HLANGA: I remember the school children from ...(indistinct) not the community members, only the children who were against their principal.

MS VILAKAZI: Would you say that the eLukwatini community was a politically active community?

MS HLANGA: No, not at all, there's nothing like that.

MS VILAKAZI: In my consultation with your family, you made reference to the condition of your mother. Can you describe to the Committee the health condition of your mother at the present?

MS HLANGA: All I can say is that Christopher, after leaving college, after finishing college he worked for only 2 months.

MS VILAKAZI: Can I ask Mr Chairman, that we give the witness opportunity to recollect herself?

CHAIRPERSON: Yes ...(indistinct - background noise)

MS HLANGA: My brother worked only for two months. After that he left the job. He told my mother to stop working because he was prepared to support her because he was working. After this incident she fell ill, my mother, that is. We have taken her to different doctors but still she cannot get better. Because all of us her daughters were all married and he was prepared to support her, my brother that is.

MS VILAKAZI: Did you mother have a good health before the incident?

MS HLANGA: Yes, she was healthy because she was working for herself.

MS VILAKAZI: Would you say that her condition deteriorated because of your brother's death?

MS HLANGA: Yes, that is correct.

MS VILAKAZI: Is it possible for your mother to assume formal employment now?

MS HLANGA: No, not at all.

MS VILAKAZI: Would you say that, I think you were listening to the applicant as he was giving evidence, would you say that he told this Hearing the truth?

MS HLANGA: He was telling lies.

MS VILAKAZI: Would your family be prepared to forgive him if he tells the truth?

MS HLANGA: No.

MS VILAKAZI: I have no further questions.

NO FURTHER QUESTIONS BY MS VILAKAZI

CHAIRPERSON: Thank you Ms Vilakazi. Ms Makhubele any questions?

MS MAKHUBELE: Yes, Mr Chairman, I don't think the kind of questions I have will take the matter any further because of the - I don't know whether the applicant, maybe if he had disclosed in his application, some of the issues would have been investigated and the witness in her position as a police officer and also as a trusted person, I don't know if she would be in a position to provide the answers to the questions, so I feel I shouldn't ask her any questions.

CHAIRPERSON: Alright. So you don't have any questions for the witness?

MS MAKHUBELE: No.

NO QUESTIONS BY MS MAKHUBELE

CHAIRPERSON: Very well. Ms Mtanga, any questions?

MS MTANGA: I have no questions Chairperson.

NO QUESTIONS BY MS MTANGA

CHAIRPERSON: Ms Hlanga, just hold on a bit. Just switch your microphone on again. Why was your brother living in the barracks?

MS HLANGA: He was working nearby from home.

CHAIRPERSON: Did you have a home in this area where this police station was?

MS HLANGA: Will the speaker please repeat the first question.

CHAIRPERSON: Did you have a home in this area where the police station was?

MS HLANGA: No. Policemen would stay at the barracks and the females would stay in the forums outside the police station.

CHAIRPERSON: So did your family have a house in the township?

MS HLANGA: No.

CHAIRPERSON: Where did your family stay then?

MS HLANGA: At Barberton.

CHAIRPERSON: Is this far from where this police station is?

MS HLANGA: Yes, it is far.

CHAIRPERSON: Is that why your brother was staying in the barracks?

MS HLANGA: Yes, that is correct.

CHAIRPERSON: Now the applicant says that after this incident between your brother and his brother, after your brother shot his brother, there was a large group of people that attacked and it seems killed your brother. Now I know you came to the scene afterwards but let's assume that is the position, why would that have happened?

MS HLANGA: I think the quarrel was over a girl.

CHAIRPERSON: Yes. No it seems as if this thing started off quite innocuously, you say that somebody spoke about passing a cigarette and then there was this talk about a girl but I mean it went completely out of control. One person got shot and the other one got attacked by a large group of people.

MR LAX: ...(indistinct - mike not on)

MS HLANGA: It started over a cigarette when one was asking for a cigarette.

CHAIRPERSON: Just a minute. Just repeat that.

MS HLANGA: It started when one asked for a cigarette.

CHAIRPERSON: Yes, it seems to have started from nothing in real sort of ...

MS HLANGA: Yes.

CHAIRPERSON: And it ended up with one person being shot in the head apparently and another person ...(intervention)

MS HLANGA: I never heard that he was shot at, I was told that he was pelted with a stone, he only fired warning shots in the air, he did not shoot him.

CHAIRPERSON: Did you see the applicant's brother at this time when this thing happened.?

MS HLANGA: Yes, I saw him.

CHAIRPERSON: Where did you see him?

MS HLANGA: I saw him in prison.

CHAIRPERSON: No, no, I'm talking about the incident. I'm talking about the scene where this whole incident happened.

MS HLANGA: I saw him sitting down.

CHAIRPERSON: Oh sitting down. Was he injured?

MS HLANGA: Yes, he was injured and he was bleeding.

CHAIRPERSON: Yes. And your brother was attacked and on what the applicant tells us, by a large group of people. He was killed, he was stabbed apparently and he died of his injuries.

MS HLANGA: It comes as a surprise to me when he's referring to a crowd of people because all I know is that only the Nkosi family was arrested, two family members, the other one was Maseko and the other one was Shabangu.

CHAIRPERSON: Yes, he says that as well, the applicant says that as well, his family members were arrested. Now it started off with absolutely nothing over a cigarette and a girl, some talk about a girl and it ends up in this sort of way. Have you possibly got any explanation at all that might assist us to understand how this happens?

MS HLANGA: I won't want to lie. I don't know why was he killed and it's something that I normally think about. I thought that maybe they were angry because this policeman was not from Ntlazashe, came and had a girl in that area. That is what is on my mind.

CHAIRPERSON: The applicant says that apparently your brother has been involved in some other incidents and that he was politically he was undesirable amongst the comrades and that at some stage a decision was taken to kill him. Have you got any idea about that?

MR HLANGA: He is lying. That was not possible for the people to hate him because he only worked for two months and I do not think that there was a decision that was taken to kill him, that is not true.

CHAIRPERSON: Was he badly injured, your brother, in this incident? Did he have many wounds?

MS HLANGA: Yes, he was badly injured because his right eye was swollen and he had stab wounds on his back and on the post mortem report it was stated that the eye was stabbed as well with a knife or sharp object.

CHAIRPERSON: If I have heard you correctly you say that the brother of the applicant was not as badly injured, in fact you say that he was thrown with stones or something?

MS HLANGA: He was not badly injured because he could still manage to walk. He just had a swollen cheek.

CHAIRPERSON: Yes, in fact it does appear as if there are indications that he was not so badly injured. So the question that puzzles me is, why that sparked off this fatal and violent attack against your brother, he was injured very, very badly and he dies in the process. You've said you don't know, you really can't say why he was attacked, you think perhaps it's got to do with a girlfriend and the fact that he was not from the area and so on. There's no other possible explanation that you can think of that may be of assistance to us.

MS HLANGA: No, I do not know.

CHAIRPERSON: The comrades that were there, if you know, were they also opposed to the South African government, the white government, the apartheid government?

MS HLANGA: Please repeat that question.

CHAIRPERSON: If you know, you say that you're aware of the fact that there were comrades in this area. Now if you can be of assistance, to your knowledge were these comrades also opposed to the white South African government, the government of apartheid?

MS HLANGA: I do not know about that.

CHAIRPERSON: Yes. Are there any other questions?

MR LAX: Just one question Chair. You've told us that you were on the scene just as your brother apparently was dying and that the applicant made certain remarks at that time, so he was still on the scene. Is that correct?

MS HLANGA: That is correct.

MR LAX: Who else was on the scene at that time?

MS HLANGA: All the accused persons were present and Mr Nkosi was standing near the accused, near his head. The policeman who dropped me left me on the scene and went to fetch other members of the police.

MR LAX: Who else was present there?

MS HLANGA: Just members of the community were looking on. MR LAX: About how many?

MS HLANGA: Many.

MR LAX: Many. Thanks Chairperson.

CHAIRPERSON: So it seems as if this is a sort of a crime that was committed, this attack was committed, was it during the day by the way?

MS HLANGA: Yes because he knocked off at 2 p.m. from work and at about 5 I received that call that he had been assaulted.

CHAIRPERSON: So it was in the broad daylight in the public there?

MS HLANGA: That's correct.

CHAIRPERSON: And when the police came, you came with the police. The applicant and the other apparent attackers were still there, very much on the scene. They were not trying to run away or to hide or anything like that. Would that be a proper understanding of this scene that was taking place?

MS HLANGA: Yes. He and his co-accused were present. The other co-accused Mr Shabangu fled with the firearm, I did not see him at the scene.

CHAIRPERSON: Yes. Ms Vilakazi, have you got re-examination?

MS VILAKAZI: Yes I do, Mr Chairman.

RE-EXAMINATION BY MS VILAKAZI: You said that when you arrived at the scene of the crime, you saw the accused and his brothers and also members of the community.

MS HLANGA: Yes, that's correct.

MS VILAKAZI: Did it appear to you that all the people who were there were involved in the attack?

MS HLANGA: No, I wouldn't say so because the people that I think were involved had blood on their clothes but there were other people, members of the community, who were in the vicinity of St John's who were just looking on.

MS VILAKAZI: Okay, you said you saw the applicant at the scene of the crime. What was he doing at the time when you arrived?

MS HLANGA: He was just standing there. My colleague dropped me off and when I got to my brother and said: "Dumisa, Dumisa" and he turned his head, I think at that time he was dying and I said: "My brother is dead" and Mr Nkosi said: "The dog is not as yet dead" and I asked him: "If the dog is not dead, why is he not barking?" and he did not respond.

MS VILAKAZI: When you say Mr Nkosi, who are you referring to?

MS HLANGA: ...(not translated)

MS VILAKAZI: When you say Mr Nkosi, who are you referring to?

MS HLANGA: The applicant.

MS VILAKAZI: And what did he have? Did he have anything on him, the applicant I mean?

MS HLANGA: He had a knife which had blood on it.

MS VILAKAZI: When did your brother start working at eLukwatini?

MS HLANGA: I'm not sure of the date but he worked for two months up until August and he was murdered in September.

MS VILAKAZI: So you're not sure, but it's approximately two months, is that what you're saying?

MS HLANGA: I'm not sure because at the time of his appointment he was at Hammanskraal and from there he moved to eLukwatini and worked there for two months.

MS VILAKAZI: But you can say with certainty that he worked at eLukwatini around, for approximately two months?

MS HLANGA: That's correct.

MS VILAKAZI: So it is not possible that he would have been involved in an incident four months prior to his death?

MR HLANGA: No. At that time he was still at college but he was not involved in any incidents in the two months that he was employed there because he only worked at eLukwatini for two months only, not four.

MS VILAKAZI: That closes my re-examination.

NO FURTHER QUESTIONS BY MS VILAKAZI

CHAIRPERSON: Thank you, Ms Vilakazi. Thank you Mr Hlanga, you're now excused. Thank you.

WITNESS EXCUSED

CHAIRPERSON: Ms Vilakazi, is there any other evidence?

MS VILAKAZI: That concludes the case for the family.

CHAIRPERSON: Is that the case for the family?

MS VILAKAZI: Yes.

CHAIRPERSON: Thank you. Ms Mtanga?

MS MTANGA: I won't be leading any evidence Chairperson.

CHAIRPERSON: Thank you Ma'am. Ms Makhubele, have you got any submissions on the merits of the application?

MS MAKHUBELE IN ARGUMENT: Thank you Mr Chair. I would concede that the ...(indistinct) the quarrel started between applicant and his brother and what appears, as has been canvassed at the trial, to be a girlfriend issue, place the line between malice and political motive. The line becomes so thin, Honourable Panel, but then on the applicant's explanation, when he went to the scene, he didn't know that the person who had been shot is his brother. He is not the only person who went to the scene and it's my submission that on that basis one would say, although no evidence, that's why I said the incident which the applicant says is the reason why the community hated him, that he had shot someone, on the other hand there is evidence that indeed there was an incident but no person was shot dead. The applicant cannot prove that.

CHAIRPERSON: Is it the same incident? They seem to be totally different incidents.

MS MAKHUBELE: In ...(intervention)

CHAIRPERSON: The one that the sister is talking about seems to be something where some taxi operators assaulted them for hitch-hiking, it seems to be totally unrelated to the incident that your client was talking about where the deceased was apparently the aggressor and he assaulted or injured somebody, shot somebody, whatever the details might be.

MS MAKHUBELE: Under cross-examination I remember it was put to the applicant that there was an incident at the taxi rank but that no-one was killed, but it involved the deceased, if I recall well.

CHAIRPERSON: Yes. But now the point is, are the two people talking of the same thing? The sister only knows about one incIdent that happened, not to do with the taxi rank, it seems they'd been hitch-hiking somewhere and wherever it might be and they were hitch-hiking somewhere and these taxi operators were assaulting them, so it seems to be totally unrelated from the type of incident that your client is testifying about.

MS MAKHUBELE: Yes, that's correct, that's why I say maybe if he had mentioned it that there was one person who was killed and the name, this information should have been verified, but I cannot take the matter further than this.

CHAIRPERSON: Yes, I mean, no, no the point is, I mean there doesn't seem to be any dispute of fact here on that. I mean it seems as if the sister is talking of an incident where they went hitch-hiking and they got beaten up by taxi operators for some or other strange reason and ...(intervention)

MR LAX: Except Chair, ...(intervention)

CHAIRPERSON: Just a minute, and the applicant seems to be talking of an incident where the deceased was the aggressor, vis a vis one of the comrades and he seems to have assaulted him, or whatever he might have done. The details slip my mind now. It doesn't seem to be the same thing they're talking about. So there doesn't seem to be a dispute of fact on an incident at the taxi rank. What is your, have you got a response to that?

MS MAKHUBELE: No, no, I understand your point Mr Chairperson. I will concede that they are two different situations.

CHAIRPERSON: Yes.

MR LAX: Sorry, Chair, just to - my understanding of the sister's evidence was that it was in fact the same incident. She denied that this chap Mandla had got shot at all in that incident. He was involved in that incident she said, so my understanding was that the sister's evidence was that she was disputing that in fact there was any kind of shooting and she's in fact disputing that this chap's even dead. She said that he was one of the people who was charged in this thing. That was my understanding of what her evidence was.

MS VILAKAZI: Can I ...?

CHAIRPERSON: Yes, we'll come to you. We'll hear your submission on this. You might be able to clarify the matter for us, but this is Ms Makhubele's time to respond. Do you want to respond to this point that my colleague makes? My colleague seems to suggest that there is a dispute of fact and that the two witnesses are talking about the same incident and that the sister is contradicting your client.

MS MAKHUBELE: Yes, there is evidence of this. When one listens to the evidence of the sister, it's a different incident, but then the questions which were put to the applicant by Ms Vilakazi suggested that it's an incident at a taxi rank, but the person didn't die.

CHAIRPERSON: Yes, very well. Have you got any other submissions on this political issue? If not, you can carry on.

MS MAKHUBELE: Yes, thank you Mr Chairman. As I say the fact that when he went there he didn't know it was his brother that had been shot and also the fact that there were people there, although no-one can say who was doing what when the sister arrived, they were not doing anything but it's strange why the community was just looking on and as such I would leave the question of the political motive for your consideration. Thank you.

CHAIRPERSON: Is it likely that an innocent dispute over a cigarette and a girl could spark off this sort of response, in the absence of any pre-existing situation of antagonism?

MS MAKHUBELE: I would submit that it appears that situation rendered the, it just made the victim, the deceased available for what appears to be some prior argument or antagonism, but then ...(intervention)

CHAIRPERSON: So the nature of this contact over some innocuous business is just by the way, there is a pre-existing situation of antagonism already which is now playing itself off pursuant to what appears to be just an innocent sort of contact?

MS MAKHUBELE: I would say so. I would say so because even at the trial, the incident started, although at the trial they said there were two accused 1 and 2, but it was clear even then that the applicant was not there but that some people started it and when he gets there, not even the State witnesses would, they did not shed light as to what the quarrel was all about and suddenly the deceased was no longer at the house where it was alleged he ran to, but he is in the street and it's not known how he got out of there and which would perhaps strengthen the applicant's version that he was chased by the people who were there. The reason why they chased him and not tried to help him or tried to diffuse the tension, one would not know, that's why I say there appears to have been a grudge between the deceased and some people, who when he was rendered helpless by this initial incident of a fight between him and the applicant's brother, they then saw the chance to finish him off.

CHAIRPERSON: Yes, it seems as if the applicant's brother had very, very minor injuries, some graze to the head, according to the judgment. He had very minimal injuries.

MS MAKHUBELE: Yes, according to the judgment yes, that's the position. Maybe the bullet just grazed him or something of that nature.

CHAIRPERSON: Yes. No, no it was very minor injuries that the brother sustained and in the normal course of events in terms of normal common sense, I mean is that the kind of thing that makes the one brother so incensed that out of your pure just revenge and anger because his poor brother was grazed, he goes and he executes the assailant?

MS MAKHUBELE: Yes. Although one would not really say that when he got there, he was amongst the first to strike him or whether when he got there he found people had already started to assault him, then he joined in, in which case, if it's the second event that when he got there people were already assaulting him and then he joined in, that would make a difference.

CHAIRPERSON: Yes on his version they were, was there already a crowd when he got there?

MS MAKHUBELE: Yes and they were hitting and kicking him and then he joined in. The question would be, why were those people hitting him and had he not joined, whether it would have made any difference or not.

CHAIRPERSON: To interfere with two adults who were arguing over a cigarette and a girl, you get a lot of people coming in and attacking one of the two arguing parties and killing him.

MS MAKHUBELE: I believe the people's attention was drawn by the firearm, the shots which were fired, that's when people went in there.

CHAIRPERSON: But I mean is that the normal conduct of people where two grown-up men are arguing after having differed over a cigarette and some words over a girl, is it a normal sort of thing? Is it normal human conduct for then a group of people to join and to kill the one without any pre-existing conflict?

MS MAKHUBELE: It's not.

CHAIRPERSON: Yes, have you got any other submissions?

MS MAKHUBELE: Nothing further.

CHAIRPERSON: Yes, Ms Vilakazi.

MS VILAKAZI IN ARGUMENT: Thank you Mr Chairman. I'll

first start by addressing the issue pertaining to the taxi rank incident. There seems to be confusion with regard to whether there's one or two incidents or whether there's a dispute of facts.

CHAIRPERSON: And whether they're talking about the same thing and whether the sister can vouch for all the brother's movements and his conduct.

MS VILAKAZI: I think what can clear this is the fact that the applicant made reference to an incident that took place at the taxi rank around 4 months prior to the death of the deceased.

CHAIRPERSON: There was a bit of a lack of clarity. He, initially in his evidence said, he gave an estimate of two months, then my colleague made a calculation. The applicant gave a date in June. Then my colleague looked at the papers before us and saw that the deceased was killed in October and then he said no, its four months and that's where the four months comes from. On the version of the applicant in his original version, he estimated a two month period so that is how I recall how this 4 months came into the picture.

MS VILAKAZI: With due respect Mr Chairman, I don't remember the applicant talking about two months. I remember him making reference to the month of June.

CHAIRPERSON: That's right and then he was asked to make an estimate.

MS VILAKAZI: Yes, so the two months ...

CHAIRPERSON: He made an estimate of two months and my colleague, Mr Lax, then referred him to the fact that it is four months bearing in mind that the other date is October.

MR LAX: Chair, the two months was two months after the meeting in June and I pointed out that that was impossible because he was killed four months after the meeting.

CHAIRPERSON: Yes, that's where the four months came in.

MR LAX: So the question is that the meeting took place, the meeting where the decision was taken, took place some time after the incident and the incident itself happened in June, on the applicant's version, so the issue of two months is neither here nor there, we were simply trying to pinpoint how long after the meeting this thing happened.

CHAIRPERSON: Yes, so in other words Ms Vilakazi, under those circumstances, it doesn't help to hang too much on four months or two months. This is where it came from. It came out in that discussion and not necessarily primarily from the applicant.

MS VILAKAZI: But neither here not there, Mr Chairman, with due respect, the decision was taken in June.

CHAIRPERSON: Well that's his estimate. That's an estimate. He also referred to two months so the point is that it doesn't help to hang too much on that argument. I mean we know on the testimony of the sister that the brother was there only for approximately two months, he wasn't there for 4 months.

MS VILAKAZI: Yes. Anyway, from the version of the sister, the incident at the taxi rank is an incident where she was with her brother and they were attacked by taxi operators for hitch-hiking and in that incident no-one was shot, there was not firing.

CHAIRPERSON: That's right.

MS VILAKAZI: Now if the version of the applicant is that the deceased was involved in a shooting incident at the taxi rank and that version is accepted,

CHAIRPERSON: Right.

MS VILAKAZI: Then it means that there is a dispute of fact because ...(intervention)

CHAIRPERSON: No the applicant says the deceased was alone, he wasn't with his sister. I think you asked him.

MS VILAKAZI: That very fact, Honourable Chairperson, with due respect means that the two witnesses differ.

CHAIRPERSON: If they are talking of the same incident. You follow, the question that arises, if they are talking of the same incident clearly there is a dispute of fact but the question is are they talking about the same incident and that's the question that I raised with Mr Makhubele.

MS VILAKAZI: Perhaps I should not canvass this point any further Honourable Chairperson.

CHAIRPERSON: Well if you don't have any further submissions on that then you can move on.

MS VILAKAZI: Okay. My submission to this Committee is that the whole incident was sparked off by an argument over a girlfriend and I'm saying that because that emanated from the version of the applicant himself.

CHAIRPERSON: Yes.

MS VILAKAZI: From the version of the sister, although the sister was not there when it started.

CHAIRPERSON: I'm with you on that submission.

MS VILAKAZI: And that is what was accepted by the court.

CHAIRPERSON: Yes, no it was. You can accept that in so far as the evidence before us is concerned what sparked off the attack on the deceased was an innocuous incident. It either had to do with some disagreement over a cigarette or some insult over a girl, or both. But the bottom line is, it's a very innocuous thing that seems to have nothing to do with politics.

MS VILAKAZI: That is my submission.

CHAIRPERSON: Yes, no, we're with you there.

MS VILAKAZI: That the whole incident arose out of nothing which had, out of something which had nothing to do with politics. My learned friend has made mention of the fact that it is strange that the members of the community would just look on when someone is attacked and I tend to agree with my learned friend in that regard. It would indeed be strange for a community that on the version of the applicant had been against the policeman, to just stand and look on while their target is being attacked.

CHAIRPERSON: Sorry, I've now forgotten, in what context did she refer to that? Did she refer to during the attack or after the attack when the sister arrived on the scene? In what context?

MS VILAKAZI: When the sister arrived at the scene.

CHAIRPERSON: At the time when the attack was already concluded, when the victim was busy dying.

MS VILAKAZI: Yes.

CHAIRPERSON: Yes, alright I'm with you.

MS VILAKAZI: So one would have expected, I mean from a community that is angry, that there are policemen who are part of the system that is oppressing them that they would just stand and look on while a policeman was there and he was still alive.

CHAIRPERSON: They don't call an ambulance.

MS VILAKAZI: They don't call an ambulance or they don't finish him off. Indeed that is strange and that points to the fact that it is inconceivable that the community would have been incensed against the policemen, that the community was against the policeman and I also want to submit to the Committee and my submission is subject to verification, the area in question was a rural area. Both witnesses have alluded to that fact. On the version of the sister to the deceased, it was a simple community which was not as politically inclined as one would find in the townships in and around Gauteng for instance or Pretoria or in other areas and what is subject to verification is the fact that the area of Kangwane itself is not known to have been an area where it was marked by political violence. Now I'm saying ...(intervention)

CHAIRPERSON: Were they happy to be saddled with the homeland situation? Were there not some of them that were against, the comrades particularly, were not some of them against the National South African government and against the entire system of homelands and so on or are you saying there was complete harmony within this homeland?

MR VILAKAZI: What I'm saying is, there was complete harmony, there were no political upheavals. I'm not saying that the community were happy with the government of the Republic of South Africa but within the area itself and I reiterate that that should be verified, that political upheavals were unknown in that particular area.

The applicant, it has been put as his version, joined the group when the attack on the deceased had already started. On his own version at the time when he went to join the group he did not know that his brother was involved or his brother had been injured, so he went there because he heard shots being fired and he went out on his own version, he heard shots being fired and because that was unusual in that area, he went out to investigate and saw this group of people. He went there and when he arrived there, he found that his brother had been injured and the deceased was attacked. My learned friend has made a submission that the line between malice and political motive is ...(indistinct). My submission is that there is no political motive at all. The applicant went there, he didn't know what was happening, he went there, he found that his brother was injured and his other relatives were busy attacking the deceased. The natural thing for him to do was to join in. So he joined in because if his family members were involved in that fracas, he didn't join in because what political motive was there at that particular time?

CHAIRPERSON: And what about the others? What about the other members of this group that attacked the deceased?

MS VILAKAZI: The version ...

CHAIRPERSON: Bearing in mind we only have the version of the applicant before us, the version before us, the evidence before us is to the effect that a large group of people attacked the deceased.

MS VILAKAZI: That is the version of the applicant.

CHAIRPERSON: Yes,that is also before us.

MS VILAKAZI: But the finding of the court is different. The finding of the court is that ...

CHAIRPERSON: Yes, that might be but the evidence before us, that's the version, that's the only version before us. It's not controverted, it's not contradicted by any other evidence.

MS VILAKAZI: Okay, I will ...

CHAIRPERSON: So on what basis do we reject that version? Assume we accept that version, there's a group of people that attacked this deceased, why do the others attack him?

MS VILAKAZI: Okay, if we accept that the group of people had also attacked the deceased, can we say that the applicant was not at all motivated to join in by the fact that his brother was there? Can that be excluded?

CHAIRPERSON: Possibly, it's possibly, it is a reasonable possibility. But then on the other hand Ms Vilakazi, can you exclude the reasonable possibility of a pre-existing antagonism, political antagonism? Isn't that as reasonably possible as the explanation that he saw his brother there and that spurred him on to get involved and to get to this assailant who was in any event persona non grata in terms of the political situation.

MR VILAKAZI: I didn't get you clearly, can you come again?

CHAIRPERSON: I've said that assume it is a reasonable possibility that the applicant was spurred by the fact that his brother was the victim of this attack from the deceased, but isn't it as reasonably possible that he was likewise at the same time motivated by the pre-existing political antagonism relating to the deceased? Is there enough before us to exclude the second possibility that I've referred to complete out of the picture and to find that this attack was entirely linked to a motive of revenge for the injury that his brother had sustained.

MR VILAKAZI: With regard to the political motivation at that particular time I think we have two versions on the table. The applicant has painted a picture of a political climate prevailing wherein the community was against policemen. The other version is the one given by the sister and for now I will not address whether or not the version of the sister should be accepted, I'll canvass that as a separate issue, but the other version is that the community was a simple community which was not politically active, so we have two versions.

CHAIRPERSON: Yes, but you must take it a step further. Take it a step further because the applicant says that not just the police in general, this specific policeman, there was a specific decision in respect of this particular policeman to kill him and they'd gone to the house and they'd broken the windows. He wasn't found there, so he focuses on this specific one and I think that is the potential difficulty that you must address. Under all those circumstances, in a nutshell, under all those circumstances, is the reasonable possibility that this attack also had to do with this pre-existing political antagonism relating to this deceased that the applicant refers to, can that be excluded?

MS VILAKAZI: Well if the version of the applicant is accepted, it cannot be excluded, if the version of the applicant is accepted then that cannot be excluded.

CHAIRPERSON: But isn't that the real question?

MS VILAKAZI: That is the - the question is whether the version of the applicant should be accepted.

CHAIRPERSON: Yes and I think that is perhaps where you must focus your argument.

MS VILAKAZI: Still then on that point of the community having taken a decision to attack the deceased, the applicant has given evidence to the effect that they went to the applicant's place, to the applicant's home, that's the word that he used, they went to the applicant's home and they did not find him there.

CHAIRPERSON: The deceased.

MS VILAKAZI: Of the deceased, sorry. They went to the deceased's home after the decision was taken to attack him then they went to the deceased's home and I asked him where that home is. He gave the address of number 1, Ntlazashe.

CHAIRPERSON: Which is the girlfriend's home.

MS VILAKAZI: Which is the girlfriend's home. The applicant was not staying at the girlfriend's home. The applicant was staying at the barracks. The sister had explained that and around that area the applicant even contradicted himself because at some stage he said when he initially started he said they did not find the deceased there then they attacked the house and the windows were broken, but then afterwards he said that he was not there, so I specifically asked him when he says he was not there, which specific area is he referring to and he said it was number 1 Ntlazashe.

CHAIRPERSON: Yes.

MS VILAKAZI: And then when Mr Lax made follow-up questions, he then said no, they did not find him.

CHAIRPERSON: Or they found him there and he was asked how does he reconcile that with his evidence, his earlier evidence that when they marched to the house they didn't find him there and he then explained that what he was trying to say was that where he usually was, he usually was at this particular place, that's how I understand the testimony that was given in that regard, but you're saying that he contradicted himself on this score?

MS VILAKAZI: Yes, because he said the applicant was staying at that house and he was not staying at that house, he was staying at the barracks.

CHAIRPERSON: Yes, I got that submission.

MS VILAKAZI: Can I just refer to my notes?

CHAIRPERSON: Yes, certainly.

MS VILAKAZI: Alright. The other thing relates to the fact that the applicant completed the application for amnesty himself and he does not dispute the fact that he completed the Swazi version of the application himself, but now he comes to the Hearing and he contradicts what he wrote in the application form. For instance, I referred him to the response that he gave to question number 9 as to whether orders were given to him. He tried to explain that, he said he did not explain that, he could not explain well that orders were given previously but in his form, in the form that he completed...(intervention)

CHAIRPERSON: Yes, he said there wasn't enough space.

MS VILAKAZI: There wasn't enough space but he had space to explain something that did not mean what he was trying to explain here.

CHAIRPERSON: Yes.

MS VILAKAZI: Now the question is, I mean the first word that he wrote, the question was, was there an order, I'm not saying it ...(indistinct) him but I think it's common knowledge what the question, but the question referred to whether there was an order or not. The first word that he writes is ... and I asked him does ... mean no and he said yes. If he had orders, why would he write no? Now he wanted to come up with a story that no, he did not have enough space. Why did he start by saying no when he meant yes?

CHAIRPERSON: I must say I'm also not clear about that evidence because as I understood his evidence he was saying that they were having a meeting where a decision was taken to kill this man, this deceased and then Ms Makhubele asked him, at that meeting who suggested and that's the word that she used, who suggested that this policeman should be killed? And then he mentioned, he said it was the chairman and he gave a name, the name is somewhere, so I'm not really sure in which direction the question of orders takes us in the light of all that sort of evidence. Is your submission that he at one stage testified that he had an order and he contradicted himself in the application form?

MS VILAKAZI: That is my submission exactly.

CHAIRPERSON: Alright, then I understand you.

MS VILAKAZI: Alright, the other thing related to the confusion that the applicant had with regard to the term "the government". He said that he belonged to the Inyanza Political Organisation. That political organisation was opposed to the oppression of the government and I then put it to him that the Inyanza Political Organisation was the government because it was the ruling party.

CHAIRPERSON: Yes, the government in Kangwane.

MS VILAKAZI: Yes and then he said: "No. When he says government he talks about the government of the boers."

CHAIRPERSON: Yes.

MS VILAKAZI: But then on a fuller question, when I asked him if they had problems, which government do they go to, he said the Kangwane government. The only reason why the applicant is confused about the term government or pretends to be confused is because if he indicates clearly what he understands by government, it would entirely throw out his claim that there were political upheavals in the area. I mean the party that he belonged to was the government in Kangwane and on his own version, if there were any complaints about non-delivery by the government, those complaints would be directed to the government, the Kangwane government.

CHAIRPERSON: Yes.

MS VILAKAZI: So the confusion that he wanted to claim about what is the government does not exist at all.

CHAIRPERSON: Are you submitting that there is a clear contradiction in that scenario?

MS VILAKAZI: That is my point exactly. The only reason why he wants to bring in the boer government is to paint a political conflict which did not exist in that area.

CHAIRPERSON: But were the political aspirations of people so limited? Were their political aspirations limited entirely to the homeland or did it also entail the entire South African situation, bearing in mind that, like his brother was working in Johannesburg, he says the brother came home every two months, or whatever it might be, so these people were not just trapped in Kangwane, they were working elsewhere, there was political conflict in centres like Johannesburg. It was affecting the entire country. It was spilling over into all sorts of areas so was it really so limited and localised? Were the aspirations just, in other words were they so happy with this homeland that they didn't think beyond the border of Kangwane so that when the applicant says: "Look, we were fighting the oppression of the boer government", is that so unheard of? Is that so extraordinary?

MR LAX: Chair can I intervene here, just on the same argument? There's a converse argument which is just as easy to make up and that is, if these police were Kangwane police, they weren't South African police, we heard on the evidence of the sister that they were Kangwane police, bearing the emblems of the same political organisation that the applicant belonged to. The policeman he killed was someone aligned to his own party. How does that then become political? So the argument goes both ways. This policeman wasn't part of the Pretoria government, he was part of the Kangwane government.

CHAIRPERSON: Yes, now the question that you address on that score, is whether it is decisive what the factual situation is because we don't really have the factual situation before us, we've heard about emblems but what was the perception of the applicant? The applicant says that as far as he's concerned, that policeman was employed by the South African government, that was his perception and that's where your focus should be, not so? Not really on the factual situation.

MS VILAKAZI: I seem to get lost now.

CHAIRPERSON: Isn't it enough to have a reasonable belief, a bona fide belief, for our purposes, for the purposes of these proceedings that we are dealing with?

MS VILAKAZI: A bona fide belief in - but Honourable Chairperson, ...

CHAIRPERSON: Yes but that's by the way only. Carry on with your argument.

MS VILAKAZI: Perhaps I should just respond in this fashion that the picture that the applicant painted was that he was a politically active person.

CHAIRPERSON: Yes.

MS VILAKAZI: So he cannot be assumed to have been ignorant of the fact that the police had the badge of Inyanza and that they were police of the Kangwane government.

CHAIRPERSON: Yes and he has this particular policeman, who seemed to be in conflict with the comrades.

MS VILAKAZI: My submission is that given the fact that the police were police of Kangwane and they belonged to this Inyanza which was the ruling party, the police could not have been the enemy of the people, so the fact that he was a policeman did not play a role.

CHAIRPERSON: He killed his own party's member.

MS VILAKAZI: Yes.

CHAIRPERSON: Alright, I've got the submission.

MS VILAKAZI: I don't know if there's anything else that - okay, I just wanted to address the question of the evidence on behalf of the family being given by the sister.

CHAIRPERSON: Yes.

MS VILAKAZI: I think the Committee should take cognisance of the fact that the proceedings in the hearings of this Committee are not like the proceedings in a court of law. The families are invited to the hearings and invariably it is the members of the family who are available at the hearings to give evidence on behalf of the family. Unless it can be said that the family was informed that they should bring witnesses, then the family cannot be blamed for giving evidence through a member of the family.

CHAIRPERSON: Yes.

MS VILAKAZI: So, I submit that the cautionary rules that normally apply in a court of law with regard to a witness who is related to a person that he's testifying on or about, should not apply in this particular matter and if the Committee is of the feeling that the evidence of Mrs Hlanga should be accepted at all or in any respect because of the fact that she is related to the deceased, then the family should be given an opportunity to call witnesses who would be neutral and who would make submissions on their behalf which would then be acceptable to the Committee.

CHAIRPERSON: No, I want to assure you in so far as I'm concerned, there would be absolutely no justification for such an approach at all to argue that simply because the witness is related to the deceased his or her testimony has got no weight. That would be totally untenable, so you can rest assured that that approach won't apply in this case.

The sister's evidence would be weighed up like the evidence of the applicant and where it is relevant, it will have a bearing on the merits of the application and an even-handed approach will be adopted in respect of the versions before us.

MS VILAKAZI: In conclusion I would, before I conclude just one point, at some stage Honourable Chairperson, you have made remarks to the fact that it really doesn't make sense that you know people would fight over a cigarette or a girlfriend to an extent that one would end up being killed. I think the Committee should be mindful of the fact that we are talking about a small rural community and that community should not be judged like a community in a township where there would be so many things that people could concern themselves with.

CHAIRPERSON: Some things are very valuable.

MS VILAKAZI: Exactly, that is my point, that is my point Chairperson. In conclusion I would say that the, I would submit that the applicant has not proved the political objective for the killing of the deceased, Christopher Mabika. The applicant was a member of the Inyanza Political organisation. The deceased was a police officer and by virtue of being a police officer, was also a member of Inyanza, so the deceased and the applicant belonged to the same organisation. No evidence has been put before this Committee to suggest that there was rivalry within the Inyanza Political Organisation itself which would then bring about the possibility that the deceased could have been on the opposite end of the organisation to the side in the same organisation that the applicant belonged to. The whole incident, I submit, arose out of the fact that a squabble relating to a girlfriend took place and the deceased was attacked in that squabble and the attackers of the deceased were members, or the predominant part of the attackers of the deceased were the members of the applicant's family. The applicant emerged at the scene at the time when the attack had already ensued and it was in the process of taking place and he then joined in. It is a reasonable inference that the applicant joined in that attack on the deceased because his brothers were involved, so he joined in to help his own fellowmen. If this Committee should find that the possibility of a political objective being existent in this matter, then that political objective has not been proved, so if it's there it exists only as a possibility and that being the case, it is my submission that the applicant has not discharged his onus of proving the political objective. Alternatively the applicant has not made a full disclosure of the facts which would present the political objective, not just as a possibility but as a fact. In that way I would conclude my argument.

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga have you got any submissions after all this?

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: You do have?

MS MTANGA: Yes.

CHAIRPERSON: Go ahead.

MS MTANGA IN ARGUMENT: Chairperson, it is my submission that this Committee should consider the evidence submitted in court that is that the reason that the deceased was killed was as a result of a fight over a girlfriend.

CHAIRPERSON: Yes, I think that is done.

MS MTANGA: And I also want to submit that in considering this, it must also be taken into account that accused number 2 testified to this effect before the court and accused number 2 is one of the brothers of the applicant here.

CHAIRPERSON: Yes, the applicant says he doesn't know what happened. He accepts that it's possible that they fought over a girl or a cigarette or whatever might be the case.

MS MTANGA: Further, Chairperson, when the applicant was giving evidence, it will appear on the record that he testified that at the time when he heard the shots, he was at home, he went outside and his evidence went on like this

"I found a person who had been shot. The person on the ground was my brother. We did not know why he had been shot. Many people were at the scene and these are the people who pursued him."

"Him" was the deceased.

CHAIRPERSON: The deceased.

MS MTANGA

"I was one of the people who pursued him. We caught up with him. He was hit"

and then he went on to say:

"Because of the pain that I felt, I also hit him and threw stones at him"

and to me this is the reason why the deceased was killed. Politics never played any part here. I say this because if the Committee takes into cognisance the fact that according to the sister of the deceased, the deceased had only worked as a policeman for two months. It is, in my assessment of the situation it is highly unlikely that the deceased could have built such a reputation within that short space of time that would make him such a common enemy to the comrades to the point that he would be a subject of their meetings.

CHAIRPERSON: Yes Ms Vilakazi has warned us, she says that we must look at the context. She says that under these circumstances things take on different proportions and dimensions. I don't know from what perspective you're making your submission. Is it from a Kangwane perspective, or is it from what perspective?

MS MTANGA: Chairperson I'm making my perspective from the - based on the facts and evidence that's given before this Panel and I would like to refer the Committee to the fact that when the applicant said he was a member of the Inyanza Organisation which was the very ruling party in the area, it is a very strange occurrence that the very people who were running, he went against the people who were running the country whom he was voting for and this is a very strange situation which never occurred in the homelands. In the homelands, if I may make a reference to the homeland situation during this time, people who regarded the white government of South Africa as an enemy never associated themselves with the ruling parties in the homelands.

CHAIRPERSON: Except if the ruling parties are surrogates of the white government, but we've been told and Mr Enos Mabuza has actually gone to see Mr Oliver Tambo in London, so it seems as if this was not one of those scenarios where your ruling party in the homeland was just a surrogate for the white government in Pretoria.

MS MTANGA: Even in that context Chairperson, I don't understand how could the deceased, who was also a member of the Inyanza party ...

CHAIRPERSON: Not a member, he says that he was a supporter.

MS MTANGA: He was in service of the Inyanza party as a policeman.

CHAIRPERSON: No not in service of the party, she said that, we're talking about membership. She said that they were not members of a party, but one can assume they were supporters.

MS MTANGA: Yes, Chairperson and they were supporters who were serving the very party that the applicant belonged to and my understanding of that situation, it is highly unlikely that the deceased could have been a political opponent of the applicant in that context where the government is progressive or more lenient to the situation that was arising and that is the situation where the applicant alleges Mr Mabuza had gone to approach Mr Tambo.

CHAIRPERSON: Yes.

MS MTANGA: It is very unlikely that the very police of that government would be oppressing the activities of the comrades as he alleges.

CHAIRPERSON: Yes.

MS MTANGA: And then I also want to respond to the situation where you had asked whether is it likely for the community to stand and watched when a person is being attacked as it is alleged was the case here. I would like to refer the Panel to the judgment where it was pointed out by the judge that according to the evidence of Mr Zulu, Mr Zulu was threatened not to be involved when he tried to beg the applicant not to kill the deceased then he was threatened by the brother of the applicant that he would kill him himself.

CHAIRPERSON: The applicant says that Mr Zulu was lying. He was told what to say by the police. What is the value for our purposes to engage in that sort of issue? What possible weight could it have for our purposes what some or other witness said before some or other court at some or other stage when totally different circumstances prevail? We must look at what is before us and we must ask then, in the light of what is before us, is the version of the applicant so far-fetched, is it clearly so contradictory that he can't be believed? He's a clear liar. Or is it so improbable that it has to be rejected, that we can't possibly draw any conclusion on his evidence?

MS MTANGA: Chairperson, in my view, his evidence is far-fetched. It is far-fetched. The fact that the community just stood and became onlookers, it's a normal thing in the townships because if you get involved, people are scared that they'll get attacked by the same people. There were six people in the scene of the attack or five people in the scene of the attack.

CHAIRPERSON: You're again referring to the papers before us?

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: Yes. Well you've heard the version of ...(intervention)

MS MTANGA: And the evidence of the applicant.

CHAIRPERSON: Well you've heard the applicant's evidence.

MS MTANGA: Yes, Chairperson.

CHAIRPERSON: On the size of the attackers, the group of attackers.

MS MTANGA: My submission Chairperson is that it should not be believed because if the Committee can just, the problem with this application, it lies very much, whatever consideration that would be made would be made based on the facts and if one looks at the facts here, after all the investigation that was carried out, six people were charged, four of them were from the Nkosi family and the two are said to have been related to them. So the issue of a political motive becomes very doubtful if you look at who finally got charged and convicted in this incident.

CHAIRPERSON: Yes, who knows who exercised the discretion? Who knows who did the investigation? Who knows under what circumstances they investigated the matter? Of what possible value can that be for us, the fact that one or two or ten or twelve people were charged? What does it matter? It doesn't help us.

MS MTANGA: But Chairperson, the fact that the people who were finally convicted, the majority of those people were family members and the victim, the initial cause of their action was the fact that their brother had been attacked. It points out to a personal squabble, not to a political offence that was committed in furthering some political organisation's objective.

CHAIRPERSON: Yes, the point is just that it doesn't help to draw or to submit that we are supposed to be attaching any particular weight to the fact that some people were charged in this matter, that doesn't help.

MS MTANGA: Chairperson, I also want to go back to my point that what could a new policeman within two months have done that could have built this reputation for him that he would be regarded as this enemy in that community. He had worked there for two months.

CHAIRPERSON: Well you heard the version of the applicant, what he's alleged to have done. And your submission is that that is improbable, it has to be rejected.

MS MTANGA: It is improbable Chairperson, in my submission.

CHAIRPERSON: I understand that.

MS MTANGA: Based on what I have said Chairperson, I would like to request the Committee not to grant amnesty to the applicant on the grounds that he had no political objective that he could achieve by killing the deceased.

CHAIRPERSON: Thank you Ms Mtanga. Have you got any response Ms Makhubele?

MS MAKHUBELE IN REPLY: Yes, Mr Chairman, I would like to respond. My two learned friends have touched on this matter which, when I look at the Act, may turn out to be the deciding factor, the context under which the act occurred. If this was a court of law I would say, rather I would ask the Panel to take judicial notice, but I don't know if I can say that here. My two learned friends here have ventured into the political situation at Kangwane at that time and one of them has even gone as far as to say that the ruling party, if it is, then if I may be allowed to add more in this confusion about the homelands.

CHAIRPERSON: You mean we've got speculation and submissions on the one hand and we've got the version of your client on the other hand?

MS MAKHUBELE: Yes, but then I don't know if the Commission at the end of the day to clarify this, is going to take judicial notice, but as far as I know, I'll give an example, with my homeland where I come from, that's ...

CHAIRPERSON: Oh, does it still exist?

MS MAKHUBELE: Well it doesn't, but that's why I say, if this was a court of law I would not be allowed to say this, but then understanding the purpose of this Commission that at the end of the day, you need to answer this question, the context, the political situation at the time.

CHAIRPERSON: Well, your learned friends have done it.

MS MAKHUBELE: Yes.

CHAIRPERSON: They've engaged in that luxury, why can't you do it?

MS MAKHUBELE: Thank you Mr Chairman. The ruling party then was called Simango, I think you may have heard about it although it's in the remote area. The police then were, in fact all government servants were forced to join that party but then immediately after the unbanning of the ANC, the very same leaders of that ruling party which was the government then, aligned themselves to the ANC which would be seen as an irony in the sense that there were homelands created by the South African government, then in the process the police were in a dilemma in the sense that they were to serve there, to do their duty, there were demonstrations, one would say that because the police were also part of that committee, part of that organisation, then for them they had to control the demonstrating masses and at the same time they were members of that organisation which is what has been explained by the applicant here that the antagonism about police in general stems from the fact that when people demonstrated, obviously they had to do their duty, they had to beat them up, they had to tear gas them, those very same police officers who were members of the ruling organisation, which organisation was now distancing itself from the apartheid system, that's why I put it to the applicant that: "You don't seem to be clued up about the period during transition", there was confusion. We also heard his evidence that the leader of the Inyanza, that's Inos Mabuza, that just shows that there was confusion there and then the police, because of their duties, they seemed to have been left out of what was happening, that is why there was this antagonism by the members of the community. That's my contribution as far as this political context or the political violence in the area is concerned and then my learned friends ...(intervention)

CHAIRPERSON: Some people were arguing that these so-called homeland structures were nothing more than creations of Pretoria. Pretoria was the big boss.

MS MAKHUBELE: Yes.

CHAIRPERSON: So this was just one of their sort of grand plans. People didn't see, people looked beyond these structures and they looked to the bigger picture.

MS MAKHUBELE: Yes, Mr Chairman. My learned friend went as far as to suggest that the applicant should know how those intricacies, I think the Commission, in your experience you have seen people who are not that clued up about, to an extent that one would explain there was this ANC, this is how it operated, like sometime you would get an MK cadre who would come and just explain things which are beyond the apprehension of this Committee, some people are just humble, they just knew that this apartheid system must be dismantled. As to the relationship between Inos Mabuza, suddenly he's no longer part of the apartheid, he's joined ANC, he's carrying them over, that creates confusion for the ordinary supporters. The Act says here it's not only a member but then it has made provision for a supporter. A supporter can be a person who, you just look at this group of people, you like what they're talking about, what they're doing, you align yourself with their actions without really knowing what the inside story is.

MR LAX: But isn't your client's evidence that he was a card carrying member, not a supporter?

MS MAKHUBELE: Yes.

MR LAX: So why are we talking about supporters? Your client's evidence is he was a card carrying member. He has all the knowledge about the party, he knows what his leader did, he knows that they joined the ANC, so are you imputing ignorance to him where there is none?

MS MAKHUBELE: No, I would advance the same argument because I asked him: "Do you know what was happening during the transition period?" which was the question which was confusing him as to how can you fight against your own organisation? My argument is on that basis that ...(intervention)

CHAIRPERSON: You're talking about his level of political skill?

MS MAKHUBELE: Yes, that's what my argument is all about.

CHAIRPERSON: Yes.

MS MAKHUBELE: And the other thing that I wanted to say was, to reply on was the question of the full disclosure. My learned friends have advanced argument that the trial record should be accepted. Even if it is accepted, the things, the sequence of events which happened at the trial is no different from what has been put before us. Nothing has been suggested about the factual situation which was not advanced at the trial. Even at the trial it was apparent that he was not there, he joined in at some other stage but what, which questions were not answered at the trial, I would say remain unanswered here and as I'm also happy if like the Chairman has pointed out on the acceptance of the evidence that was led in court, that the evidence that was led in court, if we apply the same standards like Ms Vilakazi has stated that because he joined in then, then we would be using, we would be in a criminal trial that because the argument with the deceased and his brother was about a cigarette or a girlfriend then it means that he had a common purpose that he was associating himself with the brother on that fight, there is no evidence here to say, to suggest that when he went there, he knew that it was his brother or what the fight was all about, he only learned about it later on, which he concedes.

CHAIRPERSON: They're submitting that the only reason why he participated in this attack was because he was very upset that his brother was injured and therefore he killed this person and so they're saying that your client's evidence should be rejected on the probabilities that there could have been this political animosity towards the deceased because he was only there for two months and it's not likely that he would have been able to whip up that sort of heavy sentiment against him that your client testified about, so that seems to be the thrust of their attack on your case, that we should reject your client's version.

MR LAX: Sorry, I just want to pick up on what you've just said. Are you saying your client didn't know that it was his brother lying there?

MS MAKHUBELE: When he left home.

MR LAX: No but when he got to the scene?

MS MAKHUBELE: When he got to the scene, he said he saw that it was his brother lying there.

MR LAX: Yes, so what difference does it make what he knew when he left home? All he did was he was inquisitive, he heard gunshots?

MS MAKHUBELE: Yes, my argument in that respect is that the only reason he joined in was because it was his brother, he was angry. That's why I say, if we look at that question alone and that's the only conclusion we're going to reach is that there is no political motive, that's why I conceded that there's a ...(indistinct) which needs to be looked at carefully, taking into account all the evidence, hence the question of the contexts, the political context in which this happened, would at least shed some light as to what led to the attack. The antagonism against the deceased or the police in general, that's why I said initially that maybe all those people went there, saw that this is the man that we have been looking for, he was rendered vulnerable by that incident, the last incident.

CHAIRPERSON: Instead of taking him to the police and laying a charge against him for a minor offence of having caused a graze to somebody's head, they went and they killed him.

MS MAKHUBELE: Yes, yes. That's my submission.

MR LAX: Just one last question for you. It's clear that at the time the accused arrived, he didn't know how serious the injury to his brother was, he thought it was very serious. He thought his brother might die and he said so, so in that context he thought: " Well here's the man who killed my brother, I'd better do something". Isn't that just as probable? Doesn't that increase the possibility that he was acting out of malice?

MS MAKHUBELE: I have already conceded to that, that's why I, in his evidence in chief I specifically led him through towards that direction, that the fact that it was your brother lying there, if it can be suggested that the only reason you acted was that and nothing else and that's the whole question which blurs this political motive. Even if a political motive was glaring, but that fact that it was his brother it would just blur everything.

CHAIRPERSON: It wouldn't necessarily blur everything, it would just be highly improbable to exclude it as a factor that had been bearing on his actions. The more important question is, do you then exclude the other possibility that his evidence raises? That is the real question in this matter. There's no doubt that it started off over some innocuous issue and that it is just highly probable that the fact that his brother was involved in this would have weighed with him, but the question is, was that the sole reason for killing and if, as your colleagues submit that was the only possible reasonable explanation for your client's participation in the matter then of course you know it's a source of difficulty.

MS MAKHUBELE: Yes, there's this analogy I wanted to draw to their suggestion that in two months he wouldn't have done any damage, it's like an argument of, say you are in a maintenance court and here's this man, he disputes paternity and he says: "No, but I only slept with that woman once, how can it be?"

CHAIRPERSON: I knew her for a week.

MS MAKHUBELE: Yes, I knew her for a week. That's the same argument.

CHAIRPERSON: You can do the same damage in a week or in a day or in a night or in a month or in a year. I take your point.

MS MAKHUBELE: Thank you.

MR SIBANYONI: Can I try to exclude or eliminate one possible confusion as to what was the cause of the quarrel? I would like to ask you about the question of the cigarette whether you are aware of the African way of engaging a person in a discussion by asking that person for a cigarette, in Xhosa they say you ask that person for "..."(ethnic) when in actual fact you are not asking for a cigarette, either you are going to be confronting that person if he says I don't have "..."(ethnic) you say now can you give me matches? And if he says: "I don't have matches" then gradually you come to the actual point why you want to talk to that person. I don't know where you are aware of that I would say manner or custom or way of life?

MS MAKHUBELE: I do.

MR SIBANYONI: You do?

MS MAKHUBELE: Yes.

CHAIRPERSON: So you're saying that is a relevant consideration in this matter?

MS MAKHUBELE: Well I do, but under the circumstances, taking into account if we look at it from that point of view, the cultural point of view, I would say that the respect that people have for each other, you wouldn't start that kind of discussion if you find a woman with another man, so although it does happen, but ...

CHAIRPERSON: Is that not possibly a way of opening up an argument over a woman? I don't want to speculate.

MS MAKHUBELE: Well I couldn't say really.

CHAIRPERSON: Yes, but that is an interesting point that my colleague has now raised. Yes. Have you got any further submissions?

MS MAKHUBELE: Yes. I have nothing further.

CHAIRPERSON: Thank you very much. Yes, we have concluded the formal part of these proceedings. As you obviously have noted from our debates and our discussions, the matter requires some attention and some thought and often the reason for the debate is exactly the doubts that sometimes occur in matters of this nature and it helps to be exchanging views. In that regard it doesn't reflect that a particular decision has been taken or a particular strong attitude is conveyed or communicated, it is simply, it is the very opposite, it is simply a sign of trying to do justice to the matter, trying to get to the truth and trying to ensure that we fully understand what it is that we have to consider, so we will have to reserve the decision in this matter. We are extremely grateful to the lawyers for their assistance in this matter and for the useful inputs that they have made and submissions they've made in this matter. We will consider the matter, endeavour to come to a decision as soon as we can and we will then notify all of the parties once that decision is available. We'll then reserve the decision in the circumstances and just again thank you very much Mesdames Makhubele, Vilakazi and Mtanga for your assistance.

We have yet again unfortunately gone way, way beyond normal sitting hours. We realise that there is inconvenience that goes with that and we also understand that there are people that must travel some distance still tonight. We appreciate your being here, for your patience and we wish you a safe journey back home.

We will adjourn the proceedings at this stage and we will reconvene tomorrow morning at 9 o'clock. Thank you. We're adjourned.

COMMITTEE ADJOURNS