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Amnesty Hearings

Type AMNESTY HEARING

Starting Date 09 December 1998

Location PIETERMARITZBURG

Day 3

Names N NGWENYA

Case Number AM 4494/96

MR LAX: Mr Ngwenya, can you hear me?

MR NGWENYA: Yes, I can.

MR LAX: Do you have any objection to taking an oath?

MR NGWENYA: No objection whatsoever.

N NGWENYA: (sworn states)

MR SAMUEL: Sorry, Mr Chairperson, I notice that Mr Ntanzi left the room. I'm not sure, I think he should be present.

CHAIRPERSON: I think he's paying a short visit.

EXAMINATION BY MR SAMUEL: Sure. Maybe I'll proceed then and hopefully he will be back to hear the gist of the evidence, thank you.

Mr Ngwenya, you pleaded guilty in the murder trial that you faced, in which Mr Ntanzi's brother was killed, do you recall that?

MR NGWENYA: Yes, I do recall that.

MR SAMUEL: In fact you admitted to firing the shot that killed the deceased.

MR NGWENYA: Yes, that is true.

MR SAMUEL: Can you tell us the circumstances under which you fired the shot?

MR NGWENYA: There was violence in the area and that prompted us as IFP members to go and stay at Luthuli's house, or camp at Luthuli's house as he was the most elderly in the area as our leader had already been shot.

That was some concern for concern and we had to discuss around that, and it came to surface that at Ntanzi's house there would be strangers, unknown people who keep frequenting the area. Therefore we decided that as you can see how problematic and troublesome is your brother, maybe it will be ideal for us to eliminate him because we are not safe with his presence or as long as he still lives and we had to implement this action now. Evidently that happened.

It was myself and Mfana Neyao plus Mr Ntanzi. We left, we went to the place and Ntanzi knocked at the door. Mfana was standing by me and as he opened the door we shot and he died on the spot or instantly and we went back to Luthuli's place where we were residing or camping.

MR SAMUEL: Now why was it necessary to take this action against the deceased?

MR NGWENYA: It is because there will be unknown people who would arrive to the area, not coming from the area, plus they were not even relatives to the family and we did not even know those people.

MR SAMUEL: And if unknown people arrived in the area, how was that of concern to you as residents of the area?

MR NGWENYA: That raised some concern because there was now violence that was erupting in the area and kept intensifying, therefore we suspected that this was being brought by these unknown people who were in the area.

MR SAMUEL: When did the violence start?

MR NGWENYA: It started in 1993. I will not be in the position to furnish you with the exact month.

MR SAMUEL: How long before the April 1994 elections would you say the violence in this area started?

MR NGWENYA: I think it was about two months or three months before Xmas.

MR SAMUEL: Who was being killed in the area?

MR NGWENYA: One other leader, our leader, that is Ntutugo was killed, plus another one from the opposite direction. Although I don't know the details, but he was also a sympathiser of the group.

MR SAMUEL: What group is this?

MR NGWENYA: Each time we will be having meetings he will come and join us.

MR SAMUEL: So these two people that were killed, who were they, what organisation were they the sympathizers of?

MR NGWENYA: IFP organisation that is.

MR SAMUEL: Who did you suspect were killing IFP members in the area?

MR NGWENYA: We suspected Ntanzi's brother because he knew pretty well that we were IFP members, that it could have been that those were his friends visiting him and he will identify us to them.

MR SAMUEL: Which organisation did you believe was responsible for the death of the IFP members?

MR NGWENYA: We believed - we in fact thought it would be ANC.

MR SAMUEL: Now how did you conclude that the deceased was involved with the ANC?

MR NGWENYA: We gathered that from Ntanzi.

MR SAMUEL: What did Mr Ntanzi tell you?

MR NGWENYA: He said the brother was an ANC member.

MR SAMUEL: And the visits by these various people to Mr Ntanzi's house, who brought that to your attention?

MR NGWENYA: It was him, Ntanzi that is.

MR SAMUEL: Did anybody else bring that to your attention besides Mr Ntanzi, the first applicant?

MR NGWENYA: No-one.

MR SAMUEL: When you met at Luthuli's house, was there any discussion concerning the death of the deceased or the possible attack on the deceased?

MR NGWENYA: As we had gathered in that house we did bring that to our attention at Luthuli's house.

MR LAX: The question was, had you discussed the matter.

MR NGWENYA: Discussing with who?

MR LAX: Amongst yourselves.

MR NGWENYA: Yes, we did discuss the matter.

MR LAX: Thank you.

MR SAMUEL: And what did ...(intervention)

CHAIRPERSON: Did anyone suggest that you should do something about it?

MR NGWENYA: Yes.

CHAIRPERSON: Who?

MR NGWENYA: It was Mr Ntanzi.

CHAIRPERSON: What did he say you should do?

MR NGWENYA: He said we should enlist some help to him, assist him so that his brother should be shot.

MR LAX: Why did he need help?

MR NGWENYA: Because we were working hand-in-hand, all of us.

MR LAX: Yes, but what help did he need? I know you were going to help him because you were together, that much we understand. Why did he say he needed help with his brother?

MR NGWENYA: Maybe it was difficult for him to kill and shoot his very own brother.

MR LAX: Why did he want to kill his brother?

MR NGWENYA: It is because the things happened the way they happened.

MR LAX: Please explain what you mean by that, you're being very vague.

MR NGWENYA: There was violence in the area and it had intensified.

MR LAX: And that is why he wanted to kill his brother?

MR NGWENYA: Yes.

MR LAX: Carry on.

MR SAMUEL: Thank you.

Now did the meeting take a decision regarding an attack on his brother?

MR NGWENYA: Yes.

MR SAMUEL: And what was the motivation again for the attack?

MR NGWENYA: The motivation here was that we were not living peacefully in the area.

MR SAMUEL: Would this attack have been carried out if Mr Ntanzi was having personal problems with his brother, would the IFP have condoned such an attack, would you as the IFP youth have carried out such an attack?

MR NGWENYA: Please repeat your question.

MR SAMUEL: If it was not a political thing - it appears to me that you're saying that you suspected the deceased to be an ANC person responsible for the death ...(intervention)

CHAIRPERSON: No, he's saying isn't he, that the first applicant told them that his brother was an ANC member.

Did you believe Mr Ntanzi when he told you that his brother was an ANC member?

MR NGWENYA: Yes, I did believe him.

CHAIRPERSON: And did you believe him when he told you about these mysterious visitors that his brother was having?

MR NGWENYA: Yes, very true.

CHAIRPERSON: And did you get all the information about his brother from him?

MR NGWENYA: Yes.

CHAIRPERSON: And you thought he was being honest?

MR NGWENYA: Yes.

CHAIRPERSON: Because there was trouble in the area at the time?

MR NGWENYA: Yes.

MR SAMUEL: As far as you are aware, was the deceased ever a member of the IFP?

MR NGWENYA: I will not know about the previous occasions or before this whole incident.

MR SAMUEL: Well you met as IFP youth, did the deceased ever attend any IFP youth meetings in your area?

MR NGWENYA: No.

MR LAX: Now to be fair, he was a good 10 years older than you, wasn't he?

MR NGWENYA: Not 10 years older than me.

MR LAX: Well his brother says ...(intervention)

CHAIRPERSON: 10 years older than his brother.

MR LAX: Sorry, 10 years older than his brother, I beg your pardon.

MR NGWENYA: Yes, him, not myself.

MR LAX: Would he have been a member of the youth at that point?

MR NGWENYA: Yes.

MR SAMUEL: It has been suggested that he was around 30 at the time of his death, were you born on the 16th of December 1965?

MR NGWENYA: Yes, that's very true.

MR SAMUEL: So that would make you around 28 at the time of this incident?

MR NGWENYA: Yes, that's true.

MR SAMUEL: And you would be more or less, well you'd be two years younger than Mr Ntanzi, the deceased?

MR NGWENYA: Yes, that's true.

MR SAMUEL: Now being in almost the same age group, would he have - I think you've answered this question,but just for a little bit more clarity, would he have to have, would he if he were a member of the IFP, belong to the IFP adult section or would he still belong to the group that you belonged to, him being 30 and you being 28?

MR NGWENYA: He would have been together with us as youth.

MR SAMUEL: And how long was this youth group - how long were you a member of the youth group?

MR NGWENYA: From my youth days.

MR SAMUEL: What year was that?

MR NGWENYA: From when I went or started school.

MR SAMUEL: Do you have any idea what year that would be?

MR NGWENYA: Maybe it was 1976, if my memory serves me correct.

MR SAMUEL: Do you know which school the deceased attended?

MR NGWENYA: Yes, I know.

MR SAMUEL: Were you and him at the same school or were you at different schools?

MR NGWENYA: Same school.

MR SAMUEL: Okay. And from 1976 until his death in 1993, did he ever attend any IFP youth meetings?

MR NGWENYA: No, except that when we were still young as boys, we were ignorant about politics and the issues surrounding politics. We started at a fairly later age to attend and be active in youth meetings.

MR SAMUEL: So when it was suggested to you by the first applicant that the deceased was in fact an ANC member, did you have any reason to disbelieve him at the meeting? Let me clear this up, when was the first time it was suggested to you that the deceased was a member of the ANC?

MR NGWENYA: I think it was in 1993.

MR SAMUEL: How long in relation to the day of the deceased's death did you gather this information?

MR NGWENYA: It could have been - it's quite difficult to recall that because this happened some time ago.

MR SAMUEL: You told us that the first applicant told you about the deceased's affiliation to the ANC, can you remember if anyone else suggested this to you?

MR NGWENYA: No, no-one.

MR SAMUEL: No-one except the first applicant?

MR NGWENYA: Yes.

MR SAMUEL: Now at the meeting itself, the elimination of another human being must have required some debate and discussion, did it follow that course at your meeting?

MR NGWENYA: The way the situation was, we did not even have any arguments, that was put to our attention and we all agreed and concurred with that suggestion.

MR SAMUEL: What was the reason for making the decision in such haste, didn't you want to debate and discuss it?

MR NGWENYA: It is because there were people who were invading the area, who would be coming and visiting his house or his home.

MR SAMUEL: Now you described deaths of IFP people in the area, what did this do to you and other people psychologically, how did you feel when these deaths of your comrades occurred in the area?

MR NGWENYA: That hurt us a great deal and it was posing some kind of threat to us, that we are no longer safe anymore.

MR SAMUEL: Would you say that you still lived the way you were, did you feel safe to walk down the road or were you living in fear?

MR NGWENYA: We were still residing in the same area but we were no longer as free because at night we would not go to sleep, it would only have to be during the day when we go to sleep.

MR SAMUEL: What did you do during the night?

MR NGWENYA: We would go to camp and be alert and be vigilant.

MR SAMUEL: Did you ever confront any of the people that you suspected were killing ANC members in the area, killing IFP members in the area, I beg your pardon?

MR NGWENYA: Please repeat your question again.

MR SAMUEL: At any stage did you ever have a confrontation, a fight or a skirmish with these people whom you suspected were killing IFP people in the area?

MR NGWENYA: No, that never occurred because all the incidents took place at night. They would shoot and disappear.

MR SAMUEL: Now the targets that were being chosen, were these ordinary IFP people or were they key, important IFP people?

MR NGWENYA: One of them was a secretary of the organisation and the other was just an ordinary just like myself.

MR SAMUEL: And you mentioned that the youth leader was also killed.

MR NGWENYA: Yes, true.

CHAIRPERSON: Was he the secretary or was he someone else?

MR NGWENYA: He was our leader, the youth leader that is.

CHAIRPERSON: So there were three people killed?

MR NGWENYA: The ones I remember perfectly well are the two. There might have been a third one, although I don't remember.

CHAIRPERSON: Well who are the two?

MR NGWENYA: It was Ntutugo who was killed and another one by the surname of Mahai. I've forgotten his name.

CHAIRPERSON: Now which was your leader?

MR NGWENYA: Please repeat that question again.

CHAIRPERSON: Which was your leader?

MR NGWENYA: Ntutugo was our leader.

MR LAX: That was your cousin, wasn't it? ...(indistinct)

MR NGWENYA: Yes, that was my cousin. You mean Ntutugo?

MR LAX: Correct.

MR NGWENYA: Yes.

MR LAX: And his surname was Ntuli?

MR NGWENYA: Yes.

CHAIRPERSON: Ntuli?

MR LAX: Ntuli: N-T-U-L-I. Just for record purpose, if one looks at page 43 of the record, the translation of Ngwenya's letter to us details all that information.

So you've said - you were just explaining there what, which of your relatives were killed, and you just said that:

"My cousin is now deceased. He was a secretary of the IFP."

and you said:

"I'm not sure whether he was killed for that, ie, whether he was killed because he was a secretary of the IFP."

That's what you said in your letter to us, do you remember that?

MR NGWENYA: I explained that perfectly clear.

MR LAX: Well can the translators just look at page 40 of the papers and just read the reply to question one, the question and the answer and tell us whether the translation is in fact correct.

CHAIRPERSON: I'm not sure that the questions have been put down on page 40, that I think is just the answers. The questions I think are on page 39.

MR LAX: The main thing I'm interested in is whether the answer is translated correctly. Well let's get the translation.

CHAIRPERSON: Well can we take the adjournment at this stage and can arrangements be made during the adjournment to check the interpretation of questions and answers from page 39 to 44. We'll adjourn now till 2 o'clock.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: ... report on this interpretation?

INTERPRETER: Yes, there is. The first answer would read thus

"My cousin who is now deceased was a secretary of the IFP. I would say he was killed for being an IFP member."

MR LAX: Please continue Mr Samuel, that clears up the problem.

MR SAMUEL: Thank you.

MR LAX: Sorry, just for the benefit of the Chairperson, the answer was

"My cousin who is now deceased was a secretary of the IFP and I will say he was killed for being an IFP member."

So in fact instead of being in the negative it's in the affirmative.

MR SAMUEL: Does the witness have to be sworn in again?

CHAIRPERSON: No, just remind him he's still under oath.

CHAIRPERSON: You're still under your previous oath, you know that don't you?

MR NGWENYA: Yes.

N NGWENYA: (s.u.o.)

MR SAMUEL: Thank you, Mr Chairman.

Now we were at a point when we said that the two IFP members that you knew who were killed, one was the secretary and youth leader, that is your cousin and there was one other person that was killed. Would you say that outsiders would know them well, outsiders from the community ...(indistinct) would know them well and know where they lived etc?

MR NGWENYA: Yes, they will know better.

MR SAMUEL: Now you were at camp at Luthuli's house on the day the deceased was killed, was this the 25th of September 1993?

MR NGWENYA: Yes, I will agree but I don't quite remember as to what date it was.

MR SAMUEL: Which of you left Luthuli's house to go and attack the deceased?

MR NGWENYA: It was myself, Nicholas and Mfana Neyao.

MR SAMUEL: Yes? Anyone else? You say it was yourself, Nicholas, who is Nicholas?

MR NGWENYA: My co-accused.

MR SAMUEL: I see. You point to Mr Ntanzi?

MR NGWENYA: Yes.

MR SAMUEL: And you mentioned another name.

MR NGWENYA: Yes.

MR SAMUEL: What's the name of this other person?

MR NGWENYA: Dobo.

MR SAMUEL: No, that's ...(intervention)

MR LAX: Isn't Dobo Mr Ntanzi? You spoke of Mfana Neyao.

MR SAMUEL: I think you misunderstood me, I didn't ask what Mr Ntanzi's other name was, I said you mentioned another name, who is this other person?

CHAIRPERSON: Another person, what is the name of the third person?

MR NGWENYA: Mfana Neyao was the third person.

MR SAMUEL: What happened when you left Luthuli's house?

MR NGWENYA: We left and we went straight to Nicholas' home or house. We got there, we got inside the premises. When we got inside the premises, Nicholas came and knocked at the door. As he opened the door, I shot and soon after that we left and went back to Luthuli's house.

CHAIRPERSON: Did anything happen before you arrived there?

MR NGWENYA: We only heard some noise, far off, not within our vicinity.

MR SAMUEL: When you say you heard some noise, can you describe what you heard?

MR NGWENYA: There were people who were far, fairly far from us that we heard.

MR SAMUEL: When you got to the deceased's house, was there anyone in the vicinity of the deceased's house?

MR NGWENYA: I would say when you leave the premises or around the premises, not too far away from there, there are trees there, I'm not too sure if there were people there but there was some noise that was emanating from that direction.

MR SAMUEL: When you got to the deceased's house, where was he?

MR NGWENYA: He was inside the house.

MR SAMUEL: How did you get him to open the door?

MR NGWENYA: Nicholas knocked at the door and he was the one talking to him and he opened for him because he knew that was the brother talking.

MR SAMUEL: And was it arranged that you would fire the fatal shot?

MR NGWENYA: Yes, I was the one who had this firearm that was a bit bigger than the others.

MR SAMUEL: Are you saying it was agreed that you will fire the shot, before you got there?

MR NGWENYA: Yes, that was agreed before.

MR SAMUEL: What happened after you fired the shot?

MR NGWENYA: I shot him, he screamed and we left with immediate effect.

MR SAMUEL: And at the trial you pleaded guilty to the murder of the deceased?

MR NGWENYA: Yes, that's true.

MR SAMUEL: I have no further questions.

NO FURTHER QUESTIONS BY MR SAMUEL

CROSS-EXAMINATION BY MR MAPOMA: At the trial when you've pleaded guilty, you told the Court what happened, the way it happened, is it not so?

MR NGWENYA: That is so.

MR MAPOMA: And in fact, before you told the Court what happened, there was a written statement that was prepared where you admitted guilt, is it not so?

MR NGWENYA: That is so.

MR MAPOMA: And that statement reflected what you had to tell the Court, is that right?

MR NGWENYA: Yes, that's true.

MR MAPOMA: Now you say it was yourself, Mr Ntanzi and Mfana Neyao who were involved in the shooting, was there no other person involved apart from the three of you?

MR NGWENYA: There were some.

MR MAPOMA: And who are those?

MR NGWENYA: We were quite a number. I've forgotten the others' names because this transpired a long time ago, but the people I am sure of, beyond reasonable doubt, are the two I've referred to shortly and they are the ones I have no doubt about.

MR MAPOMA: So is it your evidence that you were a group of people when you went to attack the deceased?

MR NGWENYA: Yes.

MR MAPOMA: Can you estimate how many were you?

MR NGWENYA: The ones who were following us behind, I will not be in a position to give you an estimation.

MR MAPOMA: No, no, you were a group when you went there, I want you to estimate the number of the group that you were when you went to attack.

MR NGWENYA: We were going there. We went in various ways, some were taking another direction and we took another direction. We could not go as if we were going to a party or something like that, this was war we are talking about.

MR MAPOMA: Now before you went, you left for the attack, you as a group discussed the killing of the deceased person, that's correct hey, is it not?

MR NGWENYA: Yes, that's correct.

MR MAPOMA: Who was there in the discussions, apart from yourself and Mfana Neyao and your co-applicant, who else was there?

MR NGWENYA: I don't quite understand if you want me to furnish you with their names.

MR MAPOMA: Yes, I want you to disclose their names.

MR NGWENYA: It was Nzameleni, Mhakauwe, Moosa. I've forgotten the rest because we were quite a big number.

MR MAPOMA: And these three were also present when you went to attack?

MR NGWENYA: They were not part of the ones I was with in front, could have formed part of the group that was following behind.

MR LAX: If you'll just allow, Mr Mapoma.

Why were they following behind you?

MR NGWENYA: Because they were keeping guard somehow to see who could be coming our way.

MR MAPOMA: Mr Ngwenya, for your benefit I must explain to you that for you to be granted amnesty you must make full disclosure of the relevant facts of the act for which you seek amnesty, and that full disclosure means amongst other things, that you must fully disclose to the Committee who were your co-perpetrators. Do you understand that, Sir?

MR NGWENYA: I heard you perfectly well.

MR MAPOMA: Yes.

CHAIRPERSON: And have you tried to do that?

MR NGWENYA: I am trying to do that.

CHAIRPERSON: Perhaps we should read another paragraph of your statement

"At that stage I was under the influence of liquor."

Is that the position, were you under the influence of liquor at the time?

MR NGWENYA: No, I was only trying to defend myself, to sort of let the sentence to be lighter.

CHAIRPERSON: So that's not true?

MR NGWENYA: That's not true.

MR MAPOMA: I propose to read for you the statement that was prepared in Court before you gave evidence. On page 55 of the bundle, on paragraph 6 you said as follows

"On the 25th of September 1993, during the evening, I met accused number 1 ..."

(accused number 1 is Mr Ntanzi).

"... accused number 3 ..."

(accused number 3 is Nzamaleni).

"... one Mhakauwe and Moosa. A man by the name of Mfana Neyao was also present and he is now deceased."

Then you go on, on paragraph 10 of this statement you say:

"All of us walked to the kraal where the deceased lived. When we arrived there accused number 1 led us to the hut in which the deceased lived."

Then you go on. You would agree with me, Sir, that in this statement these people whom you have just now mentioned, whom you did not disclose in your evidence-in-chief, were in your company when you went to attack? ...(intervention)

MR LAX: You might just add, Mr Mapoma, the last paragraph 13, which is that

"After I shot him, we all ran away."

MR NGWENYA: The ones that I was with in front, we were three in number as I've already explained. It was myself, Nicholas and Mfana Neyao, plus the others were following behind.

MR MAPOMA: So those others who were following behind, are they the three men you have just mentioned later?

MR NGWENYA: I will concur with that because they formed part of the meeting when we held it.

MR MAPOMA: Then why did you not disclose that to the Committee in your evidence-in-chief?

MR NGWENYA: As I am also saying now, that the ones that I am definitely sure about, beyond reasonable doubt, are the ones who were in my company in front but the ones who were following, I could not stand here and state that I know them.

MR MAPOMA: I put it to you Sir, that you don't want to disclose that these people, Nzameleni, Mhakauwe and Moosa were part and parcel of your attack because they are not dead, you only disclose Mfana Neyao because he is deceased, you are covering them up. That is what I suggest, what is your response to that?

MR NGWENYA: If I was trying to keep that away from you, I wouldn't even have pleaded guilty at the Court of law.

MR MAPOMA: Now when you arrived at that place where the deceased was, you said in the vicinity there - you were asked a question whether in the vicinity of that place were there some people and you said you heard some noise, are you in a position to tell the Committee whether there were people there or not, apart from the deceased?

MR NGWENYA: I would say there were people because I heard some sounds.

MR MAPOMA: Thank you. Thank you, Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Re-examination?

MR SAMUEL: No re-examination.

NO RE-EXAMINATION BY MR SAMUEL

MR LAX: When you approached the kraal of the deceased, where was the deceased as you were approaching it?

MR NGWENYA: We found him inside the house and the door was closed.

MR LAX: So the door was already closed when you saw him?

MR NGWENYA: The door was closed upon our arrival.

MR LAX: Your co-applicant says that on your arrival there, these people ran away and he saw your brother closing the door.

MR NGWENYA: I may say that he was scared of, because whatever was going to be happening there, it was happening to his brother. So it could be that he was scared and thought that he was closing the door, because we are talking about his brother here.

MR LAX: But you think he's mistaken, you didn't see that happen?

MR NGWENYA: I did not see that.

MR LAX: You also didn't hear any neighbours firing shots?

MR NGWENYA: I did hear gunshots but far away, not close to where we were.

MR LAX: Not the neighbours, it might have been other people from far away?

MR NGWENYA: Not too close, but a distance.

MR LAX: And are those the noises you eluded to when you first testified in your evidence here today? You said you heard some noises in the area but far away, is that what you were referring to, the gunshots?

MR NGWENYA: No, I was talking about noise that was being made by people.

MR LAX: What sort of noise are you referring to, shouting? We don't know, so you will have to tell us.

MR NGWENYA: The kind of noise that you will hear from people who would be walking around trees or in the vicinity of trees and you would heard the rustling of trees and leaves, plus wood, that kind of forest sound.

MR LAX: So you didn't hear voices, you just heard the crackling of branches and leaves and rustling and so on?

MR NGWENYA: Yes.

MR LAX: You're quite sure that the information about the deceased came to you as you put it, only from your co-applicant?

MR NGWENYA: Yes, that's true.

MR LAX: You never saw his late brother involved in any fighting with members of your organisation?

MR NGWENYA: No, I never saw him in possession of a firearm or fighting.

MR LAX: So in essence you are telling us that you relied on what he told you?

MR NGWENYA: Yes, I relied upon that information that he gave to me because we would attend together, IFP members, and he will not be there, the brother that is.

MR LAX: Now your co-applicant was the assistant leader of the Inkatha youth, did you know that?

MR NGWENYA: Yes, I knew that.

MR LAX: Now in the light of your cousin being deceased, wouldn't that make him the leader until the new person was elected?

MR NGWENYA: It would have been from him if he accepts that or not.

MR LAX: You see you told us in your evidence that the suggestion about killing his brother and the information about his brother came directly from him at your meeting and that there was very little debate about the matter, you heard him, you believed him and you decided well, then we must kill him.

MR NGWENYA: Yes, that's true.

MR LAX: And I'm suggesting to you that if this came from your leader, that would explain why there was so little discussion about the matter, you just, that's what your leader said, you all believed him and you decided to do it.

MR NGWENYA: No, it's not like that.

MR LAX: So he was just a trusted member of your group, you believed the information and there was no dispute about killing this brother of his?

MR NGWENYA: Yes.

MR LAX: Did he tell you that his brother was - let's find the exact words, just give me one second, did he tell you that his brother was treating him badly?

MR NGWENYA: You see as brothers you are bound to have misunderstandings or fight over some issues.

MR LAX: Did he tell you that his brother was treating him badly? I heard you "Xa" in your answer, but that wasn't translated, did you mean no?

MR NGWENYA: He did say that at the meeting.

MR LAX: So he did say it?

MR NGWENYA: Yes, he did.

MR LAX: How was his brother mistreating him, as far as he explained it to you? What was his brother doing to him that ...

MR NGWENYA: He was harassing him inasfar as the organisation was concerned.

MR LAX: You never witnessed any strangers at his brother's house?

MR NGWENYA: I was not frequenting that area quite a lot, I would occasionally go there.

MR LAX: How often did you see the first applicant at that time?

MR NGWENYA: Quite often. And I'm thinking that maybe like during the day we would sit and relax together and he will even have dinner by our house.

MR LAX: Where was your house?

MR NGWENYA: At Ezendopi, the same area.

MR LAX: You say that happened quite often?

MR NGWENYA: Yes, that's true.

MR LAX: You see his evidence was that he only visited the area occasionally to visit his mother, so do you think he's mistaken about that?

MR NGWENYA: I don't know but I don't think that's the point or that's the facts because we were residing in one area.

MR LAX: You see he told us that he fled the area and he went and lived in another place and he only came back there to visit his mother from time to time. That is how he put it. You say that's not true?

MR NGWENYA: He's mistaken.

MR LAX: Thanks Chairperson, I have no further questions.

CHAIRPERSON: Was your house burnt?

MR NGWENYA: Please repeat your question.

CHAIRPERSON: Was your house burnt?

MR NGWENYA: Yes, my house was burnt.

CHAIRPERSON: Was that before or after this incident?

MR NGWENYA: Before this incident?

CHAIRPERSON: How long before?

MR NGWENYA: Approximately two to three weeks prior.

CHAIRPERSON: And was it burnt as part of the violence?

MR NGWENYA: Yes, that was part of the violence.

CHAIRPERSON: And did this effect you and effect your emotions?

MR NGWENYA: Yes, this traumatised me because I lost so much of my possessions due to that fire, or my house being burnt.

CHAIRPERSON: Did you say in your application for amnesty, and I'm reading now from page 31, I'm not sure where it comes from

"There was violence in my area and that disturbed me psychologically and emotionally."

CHAIRPERSON: Did you say that?

MR NGWENYA: Yes, I did say that.

CHAIRPERSON

"As a result I killed."

MR NGWENYA: Yes, that's true.

CHAIRPERSON

"They had burnt my house, my relatives died, that really disturbed my emotions and mentally I was unstable."

MR NGWENYA: Yes, that's true.

CHAIRPERSON

"I found myself having committed the offence without intention, now I am really regretting what I did."

MR NGWENYA: Yes, that's true.

CHAIRPERSON

"If only they did not burn and kill my relatives."

MR NGWENYA: That's true.

CHAIRPERSON: And was that how you were feeling at the time?

MR NGWENYA: When my cousin died and my relatives as well as my house burnt, that traumatised me quite a lot emotionally and otherwise.

CHAIRPERSON: Thank you.

ADV SIGODI: Thank you, Chairperson.

At the time that you decided that - that this decision was taken that the deceased be killed, were you told that you were the one who was going to shoot the deceased?

MR NGWENYA: I borrowed the firearm myself out of my initiative.

ADV SIGODI: Is there anybody who told you to shoot?

MR NGWENYA: I told them out of my own volution that I will execute the action.

ADV SIGODI: But did you hear the first applicant saying that it was decided by Mfana Neyao that you were going to shoot, who was going to shoot?

MR NGWENYA: Is it me?

ADV SIGODI: The first applicant.

MR NGWENYA: No, I think he's mistaken.

ADV SIGODI: Didn't it strike you as being funny or unusual that the applicant, first applicant would say, would want to go and kill his brother? Wasn't this a rather unusual thing?

MR NGWENYA: Please rephrase your question, I didn't get it.

ADV SIGODI: My question is, when the first applicant said that his brother must be killed, didn't this strike you as being unusual, didn't you question this request?

MR NGWENYA: There were things that were happening or happened, we all witnessed so much of what he explained to us because he kept telling us that there are people who are coming, unknown people, strangers who were coming to his house and we fully agreed with his suggestion because we were not certain about could transpire next as the situation was getting volatile.

ADV SIGODI: Why didn't you question why - I mean why didn't you target the people who came to visit instead of the applicant's brother?

MR NGWENYA: We did not know those people and we did not know where to find those people.

ADV SIGODI: Had you seen these unknown people, had you seen them before?

MR NGWENYA: I personally did not see them.

ADV SIGODI: Did you stay in the same village?

MR NGWENYA: Yes.

ADV SIGODI: Did you stay far away from the deceased?

MR NGWENYA: It was quite a distance, although I could be able to see their house from my home.

ADV SIGODI: Would you be able to see if there were unusual people at the deceased's house?

MR NGWENYA: I saw a group of people but I was not in a position to identify as to who they were.

ADV SIGODI: This is exactly what I'm trying to get at. Why didn't you target the unknown people, the people whom you suspected of causing the violence? If you saw them and you saw that these people you do not know and you suspect that these are the people who are bringing violence, why didn't you target those people?

MR NGWENYA: We wouldn't have been able to do that. We only could target the person who would be calling them, not the people themselves.

ADV SIGODI: Why not?

MR NGWENYA: Because we did not have sufficient firearms or enough firearms.

ADV SIGODI: How many people were there in the IFP Youth League?

MR NGWENYA: You mean the ones were with on the day in question?

ADV SIGODI: Alright, let's start with those you were with on that day in question, how many of you were there?

MR NGWENYA: We were three of us.

ADV SIGODI: In other words, was it just the three of you who decided that the deceased must be killed?

MR NGWENYA: It was not the three of us who decided but the whole group at large decided so.

ADV SIGODI: Yes, how many people were there in that group?

MR NGWENYA: We were many. I won't be able to give you the hypothetical figure as to how many we were.

ADV SIGODI: 20?

MR NGWENYA: About 20/25, that would be my rough estimation.

ADV SIGODI: And then all of you didn't have enough weapons to go and target the unknown people?

MR NGWENYA: That's very true.

ADV SIGODI: Thank you, Chairperson.

MR LAX: Just one last aspect. You say in your application form that the deceased never worked.

CHAIRPERSON: No, not never worked, he was not working.

MR LAX: No he says he never worked.

If you look at the translation on page 34, is that right?

MR NGWENYA: Yes, that's right.

MR LAX: And his brother tells us that he had at least two different jobs, you didn't know about that?

MR NGWENYA: No, I did not know about that.

MR LAX: But he was your age group and ...(intervention)

MR SAMUEL: Sorry, I understand that the Zulu word says unemployed, not never worked.

CHAIRPERSON: ...(inaudible)

MR SAMUEL: He was unemployed but not that he never worked.

MR LAX: Be it as it may, the way I put it to him he's confirmed that.

As far as you knew he didn't work?

MR NGWENYA: I knew him as somebody who was just available, around, who was not working.

MR LAX: He was somebody of your age group?

MR NGWENYA: Yes.

MR LAX: You would have known if he had a job?

MR NGWENYA: Yes.

MR LAX: And you never heard about it?

MR NGWENYA: At the time when this transpired he was not working.

MR LAX: Thanks, Chairperson.

MR SAMUEL: May I?

CHAIRPERSON: Yes.

RE-EXAMINATION BY MR SAMUEL: Mr Ngwenya, you indicated that your house was burnt a few weeks before this incident.

MR NGWENYA: Yes, that's true.

MR SAMUEL: And at some stage when Mr Lax questioned you, you indicated that the accused used to visit you regularly at your house.

MR NGWENYA: Yes.

CHAIRPERSON: The first applicant. You said the accused used to visit him regularly.

MR SAMUEL: I apologise. That is, Mr Ntanzi used to visit you regularly at your house?

MR NGWENYA: Yes, that's true.

MR SAMUEL: Now, so for at least three weeks before this incident he could not have visited you at your house because your house was burnt, am I correct?

MR NGWENYA: My house was burnt. Our house is a homestead sort of set-up so when that one particular hut was burnt, I had to move to the next hut.

MR SAMUEL: Okay. Now regularly, often, are also very relative terms. When you say he used to visit you regularly, do you mean he visited you once every day, once very week, once every month?

MR NGWENYA: I would occasionally see him passing on the road and he will stop by our house and we will relax a bit and go and come back as he goes back to his house. So I won't be in a position to tell you exactly how often or how many times he would pitch up at my house.

MR SAMUEL: Thank you, Mr Chairperson.

NO FURTHER QUESTIONS BY MR SAMUEL

CHAIRPERSON: Right, thank you.

WITNESS EXCUSED

CHAIRPERSON: Are you calling any further witnesses?

MR SAMUEL: No, Mr Chairman.

CHAIRPERSON: Well, shall we deal with the question whether there is any questioning from the floor? Do any of the members of the audience who are not represented, wish to put any questions to either of the two applicants who have given evidence so far? Right, there is no response to that. We will carry on with the hearing.

Are you now closing your case?

MR SAMUEL: That is correct.

MR MAPOMA: There is no further evidence, Chairperson.

CHAIRPERSON: Can we hear argument?

MR SAMUEL IN ARGUMENT: Thank you.

The applicants have applied for amnesty over the death of the deceased, Mr Ntanzi who was killed on the 25th of September 1993 at or near Eshowe area.

The basis of the application and the reason why it falls within the ambit of this Committee it is argued is because it was a politically motivated killing.

The two applicants are members of the IFP Youth Committee. One of the them, the first applicant, was the assistant youth leader. And what is also perhaps important in this matter is that the deceased was the blood-brother of the first applicant.

We are talking about a time in this country which hopefully we have surpassed forever, when prior to the important democratic election there was obviously jockeying for political positions and votes.

We are talking about a time when it became apparent to all the powers that be that areas should in fact, ground should be made in areas that fell outside their sphere of influence. The applicants have argued that the area in fact was an IFP stronghold and gradually it became a mixed area.

They have testified that certain key IFP members were killed and the suspicion was that it was in fact the ANC that were committing these atrocities and that it was people from the outside that in fact were killing the IFP people.

The suspicion obviously must have been for these important leaders of the IFP to be killed, that information was coming within the community and the fact that the deceased was seen to be associating with people, large numbers of people from outside the area under some strange circumstances, must have at least created the perception in the minds of the applicants amongst others, that he may have been involved in the, if not the perpetrating of the acts against them but at least in giving some information which led to the attacks on their members.

CHAIRPERSON: Can you argue that on behalf of the applicants? Surely you can only argue that on behalf of the first applicant. The second applicant has said that he had no such information, he only received information from the first applicant.

MR SAMUEL: There are two points that one may argue on the evidence of the second applicant. Firstly, when questioned by Advocate Sigodi, he indicated that he saw a large group of people at or in the vicinity of the deceased's house.

CHAIRPERSON: On one occasion.

MR SAMUEL: One occasion. The second point is that he indicated that he was informed of this by the first applicant. Now we are dealing with times of terror, times unimaginable today, times when, even he testified where he was psychologically in fear. His house was burnt down, his friends were dying. And whether or not - it's not important I submit, that this Committee makes a determination whether or not the deceased was in fact an ANC member or involved, but it's what were the perceptions at that time.

If they perceived the deceased to be an ANC member and to be in some way related to the violence in the area, that is important because the killing I submit, was done in furtherance of their self-defence as they argued.

It must have taken some great mental and emotional for the first applicant to in fact allow a situation where his brother would be killed. Even most abusive brothers one submits, one would not willingly allow them to be killed or kill them.

MR LAX: Mr Samuel, the evidence of the second applicant is that the first applicant went out of his way to persuade them to kill his brother. He tried to impress upon them how important it was and what a threat his brother was. That was his evidence.

MR SAMUEL: I think his evidence was that it was, the information he gathered was supplied by the first applicant, that the first applicant in fact advised him that this is the situation.

CHAIRPERSON: The first applicant advised a meeting of young IFP youth that his brother was an ANC activist and was responsible for the people coming in and killing in their area and ought to be killed.

MR LAX: If I could just add so that we are clear on this point. Advocate Sigodi asked him: "Wasn't this an unusual thing, didn't this strike you as strange that here was this guy pushing for his brother to be killed?", and your client in his answer said, the second applicant said: "No, he was adamant about it, he was insistent on it", words to that effect. So I just want to say that for you then to say this must have been a difficult thing for him isn't borne out by the evidence.

MR SAMUEL: Well let's argue this, with respect Lady and Gentlemen, the following situation. We're dealing with a situation where a township is pretty much a war zone.

Let's assume that that committee discovered strange people were coming to the first applicant's house without the first applicant disclosing this, wouldn't the first applicant himself be under suspicion from the group? Wouldn't the group itself turn against the first applicant and say: well you were aware that your brother is harbouring ANC members in your house, your alliance lies to the IFP, why didn't you disclose that to us? Shouldn't he as a member of the IFP be forthright and put this on the table.

MR LAX: Ja, we hear you on that except to say that on the second applicant's evidence and version, the whole origination of this idea that his brother should be killed came from him.

CHAIRPERSON: You see Mr Samuel, it's a very different matter. If he goes to the leaders of the IFP and says: please help me, I've got this problem at home, my brother is doing this, what should I do? But he doesn't, he waits until there is a gathering of young men and puts to them that they should go and kill his brother.

MR SAMUEL: I accept that ...(end of tape) lots of issues should be debated and there should be organisational responsibilities where you challenge even the simplest of decisions in your area.

We're not - with respect, Mr Chairperson, we're dealing with a time ...(intervention)

CHAIRPERSON: We're dealing with somebody who decides to get his brother killed.

MR SAMUEL: That is correct, Mr Chairperson, but I'm arguing ...(intervention)

MR LAX: You can take it as given that we understand the context. We've heard hundreds and hundreds of cases involving the political conflicts both in this province and elsewhere, so you can take it for granted that we do understand that these were difficult times, however what you are seeking to address us and argue on is to say that he must have experienced some qualms about this, and clearly he couldn't have because he originated the idea. That is really the simple ...(indistinct).

MR SAMUEL: Thank you. What I am saying as well is that we should not accept as gospel the descriptions of that meeting, given some years after the incident. We cannot accept even the first applicant's version as this meeting, I mean the first applicant merely stated that his brother should be killed and everyone accepted it. I'm saying that even those decisions would have been debated and the second applicant may have forgotten the discussions. For instance, at some level he introduces the gentleman by the name Mfana Neyao.

However, what he may remember clearly is the role that the first applicant played because the first applicant faced trial with him and was in prison with him. So those kind of things will stick out in his memory, even today.

The roles that the other players played, who no longer associated with this matter, may have been forgotten. Logically the situation is that if the first applicant went to a meeting and just said lets kill this person, it seems improbable and illogical that everyone would have joined him and merely went and killed the deceased. There must have been some discussion and debate and there must have been other submissions by other members because you can fool some of the people but you can't fool 30 people ...(intervention)

CHAIRPERSON: Would anyone suspect they were being fooled when someone is saying: "My brother is the person responsible, kill him?" Surely that is a matter, Mr Samuel, that if you believe you don't discuss any further, it is an emotional matter, and this is what he did.

MR SAMUEL: What he says he did was he raised this at the meeting and other people at the meeting also confirmed their suspicions relating to the brother being involved with the ANC. That is his memory, that Mfana Neyao was also the one who was engaged in the discussion and other people must have also discussed their suspicions at the meeting.

The second applicant doesn't seem to remember this, he merely remembers the first applicant's role in this. But what I'm saying is that you would not get 30 youth who are involved in defence, merely taking the word of one person.

So we are actually missing something here and maybe with the fluction of time and the manner in which this matter has gone, that is why we are getting this kind of evidence before the Commission. However, we should not place too much reliance on simply what the second applicant has said.

The suggestion appears initially in the summary of facts, that it was based on a family dispute, that the deceased was a nuisance. And that emerges in all the statements that are attributed to have been taken by the police. And the first applicant testified he was assaulted by the police. But the Judge in his judgment seems to have indicated that this was in fact to an extend a political killing.

If one views the conduct of the police at that time, and the Committee must have heard hundreds of such cases of the conduct of police at that time, it was not uncommon for them to literally put words in the mouths of people. What is significant is that the mother of the first applicant was found not guilty.

CHAIRPERSON: And you saw the reasoning, because her confession, if it's that, couldn't be affixed to this particular killing. The Judge did not reject the fact that she had said that she spoke to these men and asked them to kill.

MR LAX: He simply argued that the nexus for the purpose of forming a common purpose was sufficiently remote for her not to be convicted on that basis. In other words, the time at which she spoke to them and the time at which the killing happened there was sufficient efluction of time for there not to be a strong enough nexus. That was the only reason he found her not guilty.

MR SAMUEL: I suppose that he would have had some difficulty, with respect, to have accepted one confession and rejected the other. So I'm saying that even that one is suspicious. A mother does not go willingly and say: "Kill my son because he's a nuisance."

CHAIRPERSON: Well the Court accepted that did say that, that that's what she said to the Magistrate. That confession was not rejected.

MR LAX: Can you just address us on this, the probabilities tend to favour, based on the second applicant's version, that what is in fact said in those statements is correct. The probabilities tend to favour the fact that because half the family was IFP, they saw this brother as a nuisance and he appeared to be harassing them because they couldn't exercise their political world. So that backs up - the probabilities back up everything about the ...(intervention)

CHAIRPERSON: You will recollect that the first applicant said on more than one occasion, that the deceased used to say: Oh well the IFP, they're just a bunch of morons, they don't don't what, they're stupid, and he found this particularly insulting. That was what was causing trouble, that there was this family feud going on, that the deceased was being a nuisance in the family.

MR SAMUEL: If you look at nuisance in that perspective, yes, I accept that but the perception that I got when reading it, a nuisance would probably be somebody who is getting drunk and creating a disturbance. I suppose the broader meaning, I would take my guidance from the Committee on that.

If that is the situation then in fact I submit that there is some level of merit in that argument. However, the second applicant has in no way corroborated or confirmed the meeting with the mother or the discussions with the mother.

Now in his 112(2) (sic) plea, he's implicated the first accused, he's implicated other people but he does not implicate the mother.

CHAIRPERSON: No.

MR SAMUEL: So I'm saying that that alleged instruction is subject to some degree of suspicion.

CHAIRPERSON: Well she said it. It is she who said she gave that instruction to her son and others.

MR SAMUEL: That is in a form of a confession.

CHAIRPERSON: Right.

MR SAMUEL: I don't think that was her evidence in the matter itself. I think the judgment deals with the confession that she made before a Magistrate.

MR LAX: Do you have any other submissions?

MR SAMUEL: My further submissions are that what is clear from the evidence is that the deceased was not a member of the IFP. It is also clear that the deceased did not want to belong to the IFP, because he must have had ample opportunity, he actually used derogatory terms on members of the IFP and that in itself I submit, is some basis for the suspicion that the person would go out of his way to provoke IFP persons, to call them uncivilised and barbarians, would he not in some way be responsible for the attacks.

There appeared to be some contradictions in the evidence between the first and second applicant. The first applicant speaks of a group of people running away etc. His mother, and the judgments reflects this, says even on the next morning when she saw him he was nervous and he was shivering etc.

So his perceptions on that day may have been influenced by the fact that he was getting involved in this big decision to kill his brother, this big act to kill his brother. So one is likely to find in these kinds of contradictions in the evidence. However, by and large they have disclosed fully what they have done. They have disclosed I submit, in substantial and material details their act of murder. And I'm saying with respect, that both of them should be granted amnesty.

CHAIRPERSON: Thank you. Any submissions?

MR MAPOMA: I have no submissions, Chairperson, thank you.

NO SUBMISSIONS BY MR MAPOMA

CHAIRPERSON: We'll take time. Does that conclude today's hearing?

MR MAPOMA: Yes, Chairperson, that concludes today's hearing.

CHAIRPERSON: Does that conclude your appearance here?

MR SAMUEL: That is correct.

CHAIRPERSON: Thank you for your assistance.

MR SAMUEL: Thank you, thank you very much.

CHAIRPERSON: We'll now adjourn till 9 o'clock tomorrow morning.

COMMITTEE ADJOURNS

 
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