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Type AMNESTY HEARING
Starting Date 08 February 1999
Names LINDA JEFFREY XABA
Case Number 3832/96
EXAMINATION BY MR WILLS: Thank you Mr Chairman. Just one small matter before I lead the evidence Mr Chairperson. To avoid any confusion we must make it clear that the applicant in keeping with his detailed affidavit, and specifically Page 14 of the record and Paragraph 23 of the affidavit, the applicant is not applying for amnesty in respect of the attempted robbery charge in respect of which he was convicted and sentenced to a period of eight years imprisonment. As he states in his affidavit, he at no stage attempted to rob or robbed anybody. So essentially we are applying for amnesty in respect of the murder and the illegal possession of firearms and ammunition.
EXAMINATION BY MR WILLS: Mr Xaba you have completed various applications for amnesty. In particular you signed an application dated the 7th May 1997 at Pietermaritzburg prison. Do you confirm the contents of that application? That Mr Chairperson is the second form, thatís Page 427, 426 of the record. Further to that you made a detailed affidavit which appears at Pages 9 -15 of the record in which you set out briefly what your history is, what your involvement in the ANC and Umkhonto weSizwe was and you describe in some detail the incident involving the killing of Mr Bester. Do you confirm ...(intervention)
MR WILLS: No Iím sorry, this was a problem at the time but we confirm that that is indeed so, Mr Baxter. Do you confirm the details of this affidavit which you signed on the 27th day of February at Pietermaritzburg prison.
MR WILLS: Very briefly Mr Xaba, I just want to also clear something up. I want to refer you to Page 5 of the record, paragraph 10(b) where you confirm or you note briefly what your political motivation or your political objective was in respect of killing Mr Baxter, and I quote - you've said Mr Bester but we're referring to Baxter.
"Mr was misleading the electorate in that he was misinforming community as to how to complete the ballot paper."
MR WILLS: Yes. Thank you, Mr Chairperson I didnít want to lead him on that point but in consultation that has arisen that that in fact was a problem between myself who assisted in the completion of this form and the accused, and he retracts that statement. It was a misunderstanding.
MR WILLS: Now is it not so as it says, as it is stated in your affidavit, that you confirm the murder, you confirm your participation in the murder, and also in respect of the illegal possession of firearms and ammunition?
MR WILLS: Now I think your, the history of your involvement in this, in the ANC and in the MK is set out very briefly, you were quite a seriously trained MK person who was trained in Cuba and various parts of Africa.
MR XABA: Yes. As I was in Mount Ayliff we were campaigning the ANC vote and teaching about votes, that people must vote for ANC, mobilising that movement. People came to me in numbers to enquire about this voter education and they came to confronted me that all what Iíve told them itís not the truth but Mr Baxter has already told them what vote is. In actual fact the vote has to be administered in a different way, the X must correspond, or must be put next to Mr de Klerkís name, not ANC, nothing to do with ANC, and they said Mr Baxter told them that X means wrong, not right, so that Mr Mandela is the right person, he has to have a right tick next to his name and the X has to be right next to Mr de Klerkís name.
And in that way they came approaching to me with this regard, and each time we conducted meetings people would raise such concerns. In that way we discussed it as a committee, Mount Ayliff committee, ANC committee that is, the branch committee in other words. As we discussed this matter we realised that here we are encountering a problem, and as a member of MK and a commander at the same time I took it upon myself that I will see that Mr Baxterís problem gets solved. And one thing that I will not tolerate at all is that, because he is coming to harass and misinform the black community in that way.
MR XABA: I mean misleading and misinforming the community by saying harassing. All that led me to inform the Committee that I will not tolerate this, not any longer, I will solve the problem. I will take it upon myself to endeavour to solve the problem. The first thing that came into my mind in light of solving the problem I requested that we shall write a letter and send it to the Zonal Structure Chairman, that is, Mr Jakuja. We did not get any response thereof.
MR WILLS: Now, you state in your affidavit that you werenít instructed to do this from any MK source but as youíve said in your evidence you took it upon yourself. Now does this conform to normal MK procedures? What Iím suggesting is, what Iím asking rather, is was it necessary for you to be ordered to conduct this assassination?
MR XABA: There are principles with regard to the MK policy, that are governing the MK body, where you would have a commander with the rights to take a decision and act upon that decision if necessary. Then I applied such policies as a commander of Umkhonto.
In preparation for this hearing I consulted you in regard to an affidavit, and Iím referring to the affidavit that forms, well the printed version of it is at page 21 and 22 of the bundle Mr Chairperson, from a Zwelhanyile Amos Gwebani who was the organiser of the ANC at Mount Ayliff. Do you recall?
MR WILLS: And in this affidavit Mr Gwebani states that this problem was raised at the meeting of the ANC branch at Mount Ayliff, the problem being that Mr Baxter was misleading people as regards how to vote, is that correct?
MR WILLS: And Mr Gwebani also states that you indicated that you were going to solve the problem in terms of, sorry to quote, he says that you were going to come up with the solution as an MK member, you were going to solve the problem.
MR WILLS: I donít think youíre understanding me. Let me try and make myself a little bit more clear. You say you wrote to the Zonal Chairman - sorry, you didnít say that you wrote, you said that the committee communicated the problem by way of a letter to the Zonal Chairman?
MR WILLS: Mr Chairman I think he said that in his evidence and itís also apparent from page, from his affidavit. If youíll just bear with me, it was a letter, on Page 15, sorry paragraph 15 on Page 13 of the bundle.
MR WILLS: I think Mr Chairperson, you cleared that up in your questioning where you were referring to him earlier, and I think he answered, with respect, about the Vidio Gwebani who was the Chairman of the Youth League and the Secretary, and then the Chairman this Deni Danyiyele and this other Gwebani. If you want me to canvass that again Iím fully prepared to do so.
MR WILLS:: And then we know from what youíve confirmed in evidence, from the affidavit of Mr Gwebani, that you took a decision, you told the committee in a meeting that you were going to take action as an MK member. Do you recall that.
MR XABA: The decision I took, the first one that is, was to write the letter. I advised the committee to write the letter to this effect, and indeed it did so and the letter was sent. Thatís the report that was given by the committee, that the letter was indeed sent, but we did not subsequently get a response. Soon after that ...(intervention)
MR XABA: Then I took this decision that I will take my gun and go kill Mr Baxter. But even so, as the period when the letter was being sent to Mr Jakuja there were people who were coming to complain to me, approaching me with complaints, and I will see that thereís no response forthcoming and I took my gun and went to shoot him. And what had already started and we could see it evidently was the division amongst the community. There were people who were agreeing with him and saying that it makes sense what he said, that there would be an X next to, there should be an X put next to Mr de Klerkís name. Others believed what I said, that no the opposite is true, put the X right next to Mr Nelson Mandelaís name.
So some people feared, in other words they were developing some fears out of this. Now I also thought that itís possible there would be a fight that can break out of this amongst the people and because ANCís my organisation and I fully support it, this disturbed me highly.
MR XABA: I took the gun and went to shoot him. The way I did this, I went and waited for him along the road. In fact the morning which I killed him I took the ANC papers that I was going to use in this vote campaign from the ANC office at Mount Ayliff. Unfortunately the receptionist was not in the office when I got there.
I saw him suddenly driving his car, Mr Baxter that is, across the road and I then decided let me go back home and leave the leaflets, the pamphlets, the voter pamphlets, leave them at home and take the gun instead. And I went to wait for him along the roadside. As I was standing and on guard - it was not the first time I did that, I had done that occasionally in the past just sort of follow his itinerary or daily programme, and I did notice that he would pass on Monday, or drive on that road on Monday and Thursday, and the following week I would check on him if he will drive on Monday and I will realise that he will drive on that road the following day, on Tuesday.
Then that time I spotted him and I decided to go home and leave the leaflets and take the gun instead to await for him. I took with the gun five litres of milk. I stood by the road, far away from the houses, and I think the closest house would have been about a 100 metres from the road that is, and there was a hillock between the place where I was standing and that house which was 100 metres away, and as he was approaching I stopped the car and he discovered, he thought I was coming or buying milk.
He stopped, and I went to him, and when I got to him he said: oh are you already here? And I said, do you know me? Then he said, Iím not asking you that, all Iím asking is do you know me. Then I said to him, all I want is milk. Let me give you twenty rands and you will give me the change. I took the pint, milk pint and I gave it to, or milk bottle, to the person who was in the back and during that time I planned that I will use the time that he will be looking for some change to give to me and utilise that time fully.
He then concentrated on counting my change, or the money to give my change and I hit him right away. I donít think it was more than five times that I shot at him. The first bullet I discharged from the gun he jumped and said, "Donner, you kaffir. I went on ahead, hitting him or shooting at him. When I reached the fourth time the person who was seated, or the boy who was seated at the back, the one who was selling the milk or rather filling the jugs with the milk, he fled instantly. I took a turn towards the front, I went towards the front of the car as I was leaving. I saw kids about eleven years old coming from school and upon realising that they will discover this incident or see this corpse lying down there, I then instructed them to go on and not via the car.
I went up the hill and I went back home. When I got home I found my auntie and I explained to my auntie that Iíve already shot the man who sells milk. She could not believe that because he was a most feared man in the community or in the area. I decided to stay at home that time and wait for the police to come fetch the corpse and take it with.
I think the police arrived at about four in the afternoon. There was a hippo of the Stability Unit that came in in a red bakkie and the white bakkie and a white kombi. They arrived at the scene of crime. About six they took the body with and I was at home then. And later on at night I fled and went to Umtata. Thatís when I delivered my report to the Chief of Staff that this is what Iíve already executed. And I stayed in Umtata. Early in 1994 ...(intervention)
CHAIRPERSON: Sorry, take your time, speak a little slowly so that the interpreter can hear everything that you have to say. You were telling us that later that night you fled to Umtata and reported to the Chief of Staff about what you had done.
MR XABA: As I was in Umtata, I was running away trying to escape from the police, from being arrested, and I went to join the peace keeping force in Bloemfontein. I was being sent there by the MK. I saw the comrades being arrested right in Bloemfontein.
We had cases and I asked for permission to visit home. I asked for permission to go back home as a person who would only be visiting home. When I got in Umtata I decided, in fact I did not decide but I was sent to Pretoria in Welmanstad to conduct integration there. And when I came back from the integration to visit home here in Pietermaritzburg ...(intervention)
MR XABA: They needed MK soldiers to go to that area to do the integration or conduct the integration, especially the commanders. It was of great importance that we be the ones who get into the army of the country. That is why or hence I was sent to that area in Pretoria, Walmansdal.
And you say in your affidavit that you were eventually arrested in 1994 at the tollgate at Pinetown, and this was no doubt when you were on this trip back home that you mentioned in your affidavit, correct?
ADV DE JAGER: But now youíre talking about 1992, and youíve just told us that you were arrested in 1994 in Creighton for this case and another one which you committed in Pinetown. What did you do in Pinetown?
MR XABA: Let me say, in 1992 when I arrived in the country from the exile or in South Africa, there was another case that Iíd committed or another crime that Iíd committed. I was found with arms or weapons in my possession and I managed to avoid that or run away from that, and I was arrested and discharged on a bail, or released on, or was given a bail. And after seeing that I was being harassed I was not too sure if they were, if those were police or the flying squad who were harassing me. I decided now to run away and escape.
When I was being arrested in 1994 I was being arrested for the case of 1992 and 1993, so there were two warrants of arrest. And I was charged with the one of Mr Baxter and I was convicted with the one for 1992 in CR Swart in Westville. So this particular one was a further charge.
You say this is, Iím reading from an affidavit that you made in support of your application, you say that I was eventually arrested on the N3 highway at the tollgate near Pinetown on 4th of September 1994, is that incorrect?
MR WILLS: Yes, and is it not so that you were granted amnesty, you were, well, first of all you were sentenced to long periods, I think 15 years of imprisonment in relation to the illegal possession of the firearms that you were caught with in Pinetown and you were granted amnesty, you served a one year sentence and you were granted amnesty?
MR WILLS: It is so that it was under the previous Act and about your judgment of the use of terms, the reason I didnít use that term was because it was after he was actually prosecuted, so he wasnít indemnified from prosecution. He was prosecuted and sentenced. But be that as it may, the fact of the matter is that there was an administrative intervention resulting in his release from prison early.
MR WILLS: That is correct, Mr Chairperson, and that is indicated in his affidavit at page 11 of the bundle and paragraph 21. Sorry, I made a mistake Mr Chairperson, my address on that question is he wasnít in fact released from prison, and Iíll clear that up now.
MR WILLS: So even though you were granted indemnity in respect of the arms charges, the 15 year sentence, is it not so that you remained in custody in order to face trial in regard to the Baxter murder?
MR XABA: I was released, but not in prison. I was not in prison with regard to Mr Baxterís case. I was not kept in custody. It was supposed to have happened in such a way that I should go and wait on the further trial, but the Westville prison did not do that because the police of Westville prison tried to contact the murder and robbery squad of Bizana to come fetch me because I was done with them, but they did not do so. Then Westville decided to release me, to let go of me, and I went. I left the prison in other words until such time that I got arrested, and it was 1996 the year, the second time around now, with regard still of Mr Baxterís case.
MR WILLS: Youíve indicated - youíve given evidence in regard to the problems that you believed Mr Baxter was responsible for in relation to the voting, were there any other complaints made to you about the way Mr Baxter treated the people that you were involved with?
MR XABA: One other thing was that as I kept receiving complaints from people, where he could not succeed in misleading the people he will label them as kaffirs. I did receive such a complaint from respective people. One of the people who came was the member of the committee who brought that report to me, the area committee of the ANC, Kuki, by the name of Kuki: K†U†K†I.
MR XABA: The committee reported to me that Mr Baxter's action that is misleading the people, he is a card carrier of AN. Strange enough, thatís when I realised and discovered that he was an agent of the boer government or government of the day to disturb the voterís education that I was conducting in the area.
MR WILLS: Weíve arrived at a position now in our countryís history where the election has passed and the armed struggle has stopped, what do you have to say to Mr Baxterís family members in relation to this incident, today?
MR XABA: Firstly I will say the government of the ANC had managed to bring democracy on top of what weíve done, the dirty deeds was done before. Weíve killed, and killing, itís not a good thing, itís not something that one can rejoice in it. What I can explain is that a person has two wounds, one itís exposable or its visible, and more especially people like Mr Baxterís wife and Mr Baxterís family and parents and friends, and the community of South Africa in general.
Wounds that one can see are those whereby a doctor can see and cure that wound, and when the wound is healed one can no longer feel the pain. And the wound that one cannot see is an emotional one. This one you experience when you lose someone you love and this type of wound one cannot see but itís inside you, you carry it all the time. But on top of all these things, the one who suffers this pain can forgive others, but the wound will always be there.
What Iím trying to tell the Truth and Reconciliation Commission is that they have tried to take South Africa and make it an example to other countries in the world, that reconciliation is built in a certain way. Iím sure that children who are still growing up and the generation to come and organisations which never see eye to eye, and whites who used to hate blacks, they will come together because of the history which weíve made and the truth which weíve told. South Africa is an example in the world. It showed this by building South Africa on the truth, thank you.
And I would also like to apologise to Mrs Baxter and the family, and his parents. What Iíve done I didnít do so because he was just white, but I was fighting against injustice at the time. And Iím also prepared that, if Iím released I will make sure that people who are just killing whites just because theyíre whites, especially those who are killing the farmers, to work and bring harmony between those people, even the whites who are still continuing exploiting blacks in farms. I will make sure, or Iíll try and make sure that it ends.
CROSS-EXAMINATION BY MR SHAW: Mr Xaba, Iíd like you to understand first of all that my client and her family do not hold any bitterness towards you. They obviously have had a great tragedy in their lives, as have many other people in this country.
ĎI admit that I shot him five times with a firearm and he died at the spot. I killed him because we had quarrelled. I shot him with his firearm. I left the firearm in the car. I never took his firearm away. Iím a full member of Umkhonto weSizwe, so I recorded the matter with Umkhonto weSizwe. I was eventually arrested.í
MR SHAW: Yes. Mr Chairman he appeared - the offence had originated within the jurisdiction of the Mount Ayliff Court, he was therefore arrested and taken to that Court before the trial proceeded before the High Court of Transkei.
CHAIRPERSON: Please answer the question, what was the quarrel about? I donít want a full discussion of the dialogue between you and him. What was the quarrel that you had with him, is the question. Try and be succinct, in other words short, and answer the question itself without giving lengthy explanations unless youíre asked to give explanations. Do you understand?
MR WILLS: Mr Chairperson, possibly I can come in at this stage. In the dictates of fairness I would request that should my learned friend want to present documentary evidence to the applicant in this matter I would appreciate being appraised of this beforehand and being in a position to take instructions on those documents.
CHAIRPERSON: In the normal course we would like parties to exchange documents beforehand, so that nobody is taken by surprise. If there are other documents which you intend using Mr Shaw, I donít know whether you do have, but if you have other documents which you intend using will you kindly make them available to counsel for the applicant.
MR SHAW: Mr Chairman I will do so. This document was made available at the previous hearing, to counsel for the applicant, and we in fact discussed this document as well as another statement made, which I intimated that I would not be using. This was at the abortive hearing in Durban.
MR XABA: First of all, I didnít want to reveal that I was a member. Secondly, when the Court questioned whether I accepted or I deny and I told the Court that I accepted, and when they asked me why I said we quarrelled.
Thirdly, Bizana police have already scared me. They wanted me to make a statement and I decided that I was going to make a statement but I wasnít going to reveal that I was taking forward my organisation, because I was scared that they are going to deport me to Kokstad if I had told the Court or the police.
"Iím a full member of Umkhonto weSizwe so I reported the matter to Umkhonto weSizwe. I was eventually arrested.í
ADV DE JAGER: Youíre in fact questioned about your statement in Court, what you told the Magistrate, and in this document which has been put before us as a copy of what you said in Court, it is stated that you told the Magistrate that youíre a full member of MK.
ADV DE JAGER: Could I just clear up something? A few minutes ago you told us that you didnít want to reveal that you were a member of MK because you feared that you would be transferred or that they would deport you to Kokstad, you used the word deport, but that isnít so because you now acknowledge that you in fact told them that youíre an MK member.
CHAIRPERSON: ...(indistinct) an answer to the question you see, that might be an explanation. Youíve told us that you did not want to reveal to the Court that you were an MK because you would be deported to Kokstad. Now it transpires that you did reveal to the Court that you were a member of the MK, and youíre invited to offer an explanation, why these contradictory statements?
MR XABA: What I meant is that - maybe I made a mistake, what I meant was I did accept that I was a member of MK but I didnít want the Court to know that I committed this crime because of my organisation objectives. I was - I didnít want them to know that I committed the crime in the name of my organisation, because I also had another crime, MK crime, so to call it, which Iíve committed in KwaZulu Natal.
And the reason that the trial continued was because, although you had admitted all the elements of the offence, the prosecution took issue with you about the motive that you had given for committing the offence, is that correct?
ĎThe problem with Mr Baxter was considered serious. It was discussed at our local interim committee meeting an
MR XABA: I said the letter was written by the committee and was sent to Mr Jakuja and there was no response from Mr Jakuja, and we wrote another letter and the committee sent it to Mr Jakuja and we didnít get any response as well. I took a decision on my own as a member of ANC, in the name of ANC, that I should kill Mr Baxter. But we didnít get any response from Mr Jakuja but people kept on coming to complain.
MR XABA: The way we were operating in the committee, my responsibilities were to recruit, and voterís education and the Executive Committee of the branch was responsible to approach Mr Jakuja. I didnít have those powers. My work was to advise the committee and to recruit members.
MR XABA: The first one was delivered by the committee. When they went there the second time I donít know exactly how they went there or who went there, but this was reported to me, that theyíve given him the letter. The committee was taking the letter personal to Mr Jakuja.
MR WILLS: Sorry, Mr Chairperson, I must come in here. I insist that if my learned friend is relying on notes of an official document, then surely the proper procedure would be to provide the parties, and particularly the Committee, with a transcript of that record. I find myself in a position of having to take my opponentís word for certain things that are recorded in a public document when that public document would suffice, and with respect, with the greatest respect to my learned friend, thatís very problematical for me.
MR SHAW: Mr Chairman to place this matter in perspective, when I was informed right at the beginning of the application for amnesty I wrote to the TRC and informed them of the trial, I gave them the background and told them that the trial record and the transcript was available because I had checked up in Umtata that it was available. The Evidence Analyst then contacted me and asked me what documentation I thought would be necessary, and I said at the very minimum, the transcript of the judgment of Judge Madlanga. No other documents have been obtained by the TRC and the only other documents that I have here are my notes of the evidence which was given, I was present at during the trial. I do take my colleagueís point ...(intervention)
CHAIRPERSON: You are not relying on documents. He's not relying on documents, he's not going to seek to prove the contents of documents, but he is entitled to put questions and the witness can admit or deny whether he said that.
CHAIRPERSON: Just to clear it up because there ...(indistinct). The applicant did say that he told the magistrate that he arrived there late in July or early August, arrived in Mount Ayliff. Weíve got that clear. Your next question arising out of your notes was when did the committee meet to consider this Baxter problem, and you were going to put to him that there was a date when that occurred, isnít it?
MR SHAW: Now I might be wrong Mr Xaba, but the question was also put to you, was it the minutes that were sent to Mr Jakuja or was it a letter, and you indicated that it was the minutes that were sent to Mr Jakuja and not a letter.
MR XABA: The secretary is responsible to do so, and I cannot confirm that she did write or she didnít, but what Iím certain of is that the committee wrote a letter to Mr Jakuja. She was responsible to write those things because when weíre having a meeting while the secretary will take everything which is said in the meeting.
MR XABA: I donít remember, Ďcause what was important was Mr Baxterís problem. This was a major problem so we were discussing about it in meetings. In fact, every meeting which we held we used to discuss Mr Baxter.
CHAIRPERSON: Yes, but I mean his recollection of what is recorded in the minutes of meetings, are...(indistinct) recorded in minutes. It's also only an assumption that these minutes are read out at the subsequent meeting.
MR SHAW: Adv Sigodi, the situation is that those minutes have never been brought anywhere, they have never been made available, and my next question will bring precisely that to bear. Had you ever, during your trial, made arrangements for these minutes to be brought forward to prove that the problem of Baxter was discussed at an ANC meeting?
MR SHAW: Now, how long did it take you to come to a conclusion that the deceased was misleading people? How long were you in the area before you came to the conclusion that the deceased was misleading people in their voting procedures?
MR SHAW: So, if we have your evidence correctly then, the very people that he was selling to, he was maligning by calling them kaffirs and also trying to mislead them and at the same time he was selling them milk?
ADV SIGODI: Sorry, just to clarify this point. Do you have knowledge where he would mislead these people? Would he mislead them whilst selling milk to them, or would he mislead them at another place, elsewhere?
"Were there any problems as a result of that occasioned to your family members? Did the deceased occasion your family members any problems?"
"My children never said anything, even my wife never said anything wrong. During his lifetime I didnít hear anything, but I heard many things after his death, said by people in the surroundings."
CHAIRPERSON: I donít think that that is a fair question, or a relevant question. I mean how can an accused person offer an explanation as to why a judge comes to the conclusions that he came to. All we have to do is to look at the judgment and see what the Judge says about his evidence, isnít it?
Mr Xaba, you will recall that you were cross-examined at some length as to the possibility of you recalling the names of people that you said had been misled by the deceased, and you werenít able to tell the Court of any names of the people, with one exception. Do you recall giving that evidence?
ADV SIGODI: Mr Shaw, is it your case that Mr Baxter never misled people, or didnít tell people to put and X? I think that is the crux of the matter is that he misled people and he told them to put an X next to de Klerk whereas if thatís the person that they donít want or whatever, but is it your case that he never misled the people?
MR SHAW: Mr Chairman, yes. The case is that he was a fairly apolitical person, that although he was a card-carrying member of the ANC he didnít take an active part in politics whatsoever, that he spoke Xhosa fluently, that he was well-known and respected in the area, and that the motive that has been put forward here today and also put forward in the criminal trial was purely to try and gain amnesty for a crime that was committed.
CHAIRPERSON: What do you think? ...(indistinct) I understand what you are saying, you are challenging his motive ...(indistinct). Are you suggesting that he may have had some other motive in committing the crime, and not the one that he says was the reason?
MR SHAW: Mr Xaba, I am suggesting to you that your motive in committing the crime was not a political one, that it was either as suggested by the trial judge, that of robbery, or alternatively possibly you had another motive for committing the crime, namely that you had possibly been hired by business opponents in the area.
CHAIRPERSON: If Baxter was doing harm to the organisation, why didnít you take steps to see to it that he was expelled and that it was known, made known to the people that Baxter is no longer a member of the ANC and must not be heard or listened to, instead of killing the man?
MR XABA: I didnít think about that, but what I realised was that even if he was a member of ANC or not, he will still continue to mislead people, because at the time when I killed him I was certain that he wasnít a member of ANC. I didnít think of expelling him.
CHAIRPERSON: Why not? Wasnít that a better way to deal with the man than to kill him? Just because he was telling people to vote differently from the way you would vote? If people disagree with you politically the only way out is to kill them?
CHAIRPERSON: This is the first time you talked about you were afraid of being killed. Up to now not one word of that has been breathed, you understand, and I donít accept a word of what you are saying in that regard. I'm sorry, I'm told that what I've said ...
ADV SIGODI: Iíll clarify it with him. Did you say that you were a product of the strife and that at that time in your mind the solution would be to kill because you, because people had been killed? The solution would be to kill the enemy, or whom you perceived to be the enemy?
MR XABA: We will experience problems inside the organisation whereby people will think that they will be expelled as well. I didnít want to be the one who always come out with ideas in the organisation.
CHAIRPERSON: I want to understand you quite clearly. You are saying that people, comrades, did not like the idea of expelling people for fear that they might be expelled. You said that, is that right?
MR XABA: I am saying so. I am saying that comrades will think that they will be next to be expelled if Iím the one who comes up with the idea of expelling someone they will misinterpret the situation.
CHAIRPERSON: The question is not whether he went to a meeting. You never asked him at any stage whether it was correct that he was misleading people, and your answer was no, you didnít because he didnít come to a meeting, is that it?
ADV DE JAGER: But on that very day before you shot him you confronted him. Did you ask him; we hear the stories, is it in fact the truth? You didnít ask him anything, you just proceeded with shooting him.
MR XABA: No I didnít ask him. Heís the one who asked me if I was there and when I asked him if he know me he said no I wasnít asking you that I was telling you if you here and I didnít ask him, I just shot him.
MS PATEL: In April of the following year, but arrangements had already started being made with various political parties months prior to that period. In fact, if my memory serves me correctly, the Independent Electoral Commission had already been constituted by that time.
MR XABA: I do remember very well some members of the ANC left for Kokstad to train for voterís education so that they come back and train the community. The person who was responsible, that was Mr Dodge from Kokstad.
CHAIRPERSON: Is there any evidence that at that time voting papers were ready showing where crosses must be marked against which name, and who the candidates were? Is there any evidence in that regard, that long before the date for the elections were fixed, in August/September, voterís papers were ready? Because I find that impossible to believe, that at that stage it was possible for anybody to tell anybody where they must put their cross marks, against which name.
MR WILLS: Mr Chairperson, I agree that obviously thatís a crucial bit of information that needs to come out to solve this matter. My own recollection is that the voter education started some time, a long time prior to the election, however I canít be too sure exactly when it is. But I suggest that can be ascertained fairly easily by contacts to the Independent Electoral Commission, and I can undertake to do that, possibly even over lunchtime.
CHAIRPERSON: Well I think ...(indistinct) going to do that, because the story falls if this question of a voterís roll not being present, as to where crosses should be made against de Klerkís name or Mandelaís name, and so on. This story - if we had not reached that stage, then this entire story is a fabrication.
MR WILLS: Mr Chairperson in view of my colleagueís insistence that this motive did not exist, I ask for an adjournment at this stage, because I am going to call, I am going to attempt to call the witness who made the statement to the Truth Commission investigator, because obviously he supports my clientís version to an extent and he might be able to clear up certain of the other aspects relating to this issue. That is, the person Z. Gwebani, who made the statement on the 17/6/1998, obviously when the applicant was in prison.
Iím also going to endeavour to get some of the other person who were on the committee at that stage. I donít know their whereabouts. I apologise for the fact that Iím have to delay, well requesting to delay, the proceedings, but up until this point in time I really didnít know the extent and the ambit of my learned friendís opposition, and I think in fairness to the applicant, that should this, should witnesses come and give testimony which support the applicantís position, well then obviously that would be in the interests of justice and the interests of the procedures that the committee actually hear that evidence. And I also will undertake to establish in that interim period the issue as regards the ANC position as regards voter education, and possibly call a witness in that regard.
MR WILLS: Mr Chairperson, Honourable Member, itís very difficult for me to say. Iíve never met the individual concerned. The only inkling Iíve had of his testimony is this issue relating to the, I mean thatís in the affidavit. Thatís all I know about him. I can probably, what I would be able to do is to be in a position fairly quickly, within a day or so, to be able to find out where he is and then Iíd be able to advise the Committee, but I believe the committee is sitting here most of the week and I would imagine that we should, Mount Ayliff isnít far from here, we should be able to get somebody before the end of the week, and if I could just liaise with the Evidence Leader in that regard.
CHAIRPERSON: Thank you very much. We will contact you before we set the matter down, at an appropriate date this week, but I would like the other matter to be cleared up. I want to find out when was the date fixed for the elections, and when were voterís papers ready for the elections for people to know where to mark their crosses.
MR WILLS: Sorry, Mr Chairperson, I would like to be clear on that. I think that has been alluded to by both the Honourable Committee Member and the Evidence Leader, that is that, my recollection of the evidence is clearly that he was referring to documents relating to voter education generally and not specifically to any other form of papers. I think as well Mr Chairman, with respect, that the ballot, the actual ballot papers and things like that were, came out much, much later, closer towards the election.
MR WILLS: Mr Chairperson, as long as weíre not dating the specific types of paper. It revolves around the development of the whole election process, and weíll endeavour to show, to give evidence in that regard, which will satisfy you.
MR DLADLA: There was another inmate and we were together talking with other inmates in prison, and we were discussing about that issue to an extent that we mentioned that they were the ones who were behind this incident.
MR DLADLA: It is because they were the ones we were fighting against from the onset, and even in Estcourt it was public knowledge that we were fighting against them, and they were in particularly, or particularly, fighting the family of Dladla.
MR DLADLA: It was suggested that if there would be any people who want to attack the group it would be only ideal for us to attack back as well. We shall be at all times alert of how we would defend ourselves and attack back, or launch counter-attacks if necessary.
MR DLADLA: Iím with you now. When we were in the bus, just before we took off, it was at night, we saw a car approaching when we were inside the bus, and as the car approached, it was coming from downward, approaching to where we were, and it switched off the lights. As soon as that happened we heard sounds of gunshots and we disembarked from the bus and we realised immediately that we are being attacked here and we decided also to launch a counter-attack, and to attacked there can be found a person inside that car.
MR DLADLA: This is a hypothetical figure, it would be around ten of us who got off the bus. It was at night, another thing, I would not be in a position to furnish beyond reasonable doubt the number of the people who got out of the bus.
MR DLADLA: I was saying, as soon as the lights of the car were switched off and on again, thatís when the person got off the car, because the car was trying to take a U-turn and he got off the car. I think he was already out of the car when we were attacking because we were attacking the car trying to take a U-turn and thatís where we discovered the late, or the deceased.
MR DLADLA: It was at night, I think there were two because the other one was already outside. Since it was dark I was not in a position to see exactly as to what was happening with the situation in the car.
MR DLADLA: The way I observed the car it was trying to take a U-turn, and they got hold of him right away and we were quite many in numbers and I wouldnít have known everybody I was with because all of us was well aware and
ADV SIGODI: Miss Interpreter, please he also, please interpret everything, because he said that they got him whilst he was in the car and then, could you repeat what youíve just said. You left out something here.
MR SAMUELS: Please listen to the questions carefully. Iím not asking you for long answers of the questions. You listen to it carefully youíll understand that Iím asking you for a short answer. Please answer the question and listen to it carefully. So you confirm that the people who had got to the deceased first were the people in the bus with you, and they were dragging Madisela out of the car?
MR DLADLA: The one was outside the car, I only saw her in Court the first time. As for that day I did not even realise as to whether she was, the person was a female or a male. I only discovered that in Court.
MR DLADLA: In the bus I think there were only two or three women of the IFP and the majority was the youth and the leader of the males, and men, so it was a combination of males, or men and the youth ...(indistinct) with only about two or three women.
MR DLADLA: As the car was approaching, the bus was ready to take off, and thatís when the car approached. As the car approached suddenly the lights were switched off. Thatís when we heard the gunshot, and we attacked immediately.
MR DLADLA: We were trying to make a statement that each time we are being attacked by the ANC people we are also in a position, or we will be also in a position to defend ourselves, and the followers or sympathisers of IFP.
MR SAMUELS: Do you want to have some water Mr Dladla and repeat what you said, because the interpreter didnít actually hear you. Can you repeat what you said to the family so that the interpreter can interpret that.
MR DLADLA: Yes. I would like to forward my apologies to the family. Because of the circumstances that earned the situation that prevailed at this time I found myself conducting myself in the manner which I did, and I do regret a great deal for the actions that I took, and they were people that were living together, thatís a well-known factor, and I would like for them to accept my apology. God will bring a person on earth and there will come a time again when God takes that person away from the world.
MR DLADLA: The sound of the gunshot was indeed a gunshot, and we were scared now because weíve had experiences in the past to this effect, that we will be on our way to our meetings or conferences and we will encounter attacks.
MR SAMUELS: Sorry, Honourable Chairperson, I donít think my learned colleague is entitled to put that as a fact because we donít have a record of her evidence. We have got only the Judgeís summary of her evidence, so there could be quite a substantial difference between the actual evidence testified to in Court and the ...(intervention)
MS PATEL: The Magistrateís stated that he summed up her evidence to be that she had received a lift from the deceased on that evening, and that it was only she and the deceased in the car, that she had paid him for the lift, and that when she left the vehicle some unknown person had approached the deceased and had spoken to him, and she says nothing further happened at the car whilst she was still there, and after she, and that was all she was able to testify, that she then left.
MR DLADLA: There will be meetings that will be called by IFP where we will conduct our regionals and do our things. She will not be part of us, so it was clear that she was an ANC member, and she will come back at night, coming back to Zwelitsha.
MR DLADLA: No, she is ANC member. I am adamant about this. Even yourself, when you have your kids or children at home, you will not fully know as to which one belongs to which group, so that as I was a leader of the youth league I knew many people, in fact all the people, from Wembezi way up to last place in the area.
MR DLADLA: There is nothing I know about the deceased. What happened really happened because I was not one of the first people to get to him. In fact I think if I got there first all that wouldnít have happened. I only discovered at the Court of Law when the case was on that this is a person I knew, and Mr Madisela was highly disappointed. If I was close to the deceased or maybe got there first before my other colleagues Iím sure I would have identified and knew him because as a person I knew maybe this wouldnít have, he would have been protected from this, but I got there late, after this whole thing had started. The station commander, Mr Madisela, I knew him as a person I knew very well in Wembezi, as a station commander of
MR DLADLA: What led to my brotherís arrest was, itís not as though he was there, or he took part in the incident, but what exactly happened was during the day he was present, before this happened, or before this occurred, and he fled. Even in the bus he was not present, he was not there.
MR DLADLA: I wouldnít have been able to identify him because I only contributed in stabbing him as others have already started stabbing him, but as to see exactly as to who we are stabbing, that did not happen, I did not realise, it was dark at night another thing.
MR DLADLA: I donít know how to explain this, but let me demonstrate this in this fashion. Letís take a cattle being slaughtered, and you approach and contribute or cut a slice from that cattle, thatís exactly what happened in this case. I only contributed and added to what was already, or to what had already been started by my colleagues, and I did not take notice as to who the victim is or was.
MR DLADLA: They were still holding him, and with his arm like this, and they let go of him and he fell on the ground. It was at the time when I was, when I sustained the injury and I could not see if I really reached him, because he was already on his way to the ground, lying or dropping on the ground.
MR DLADLA: You see when the person is at war, or fighting, and tell me to go and defend, we were rushing there, we stormed there all of us, thatís when I got there and sustained the injury, because I could not reach to the guy because he was already falling on the ground.
MR DLADLA: Yes. Because of in the car I was only told the following day, I think it was on Monday because we are away the whole week-end since Monday and we returned on Sunday and I was told that he was driving a four point one. I think I would have recognised the car as well, even the colour of the car and the number plates or car registration for that matter, Ďcause he worked for Convoy, I used to see the car there at (PLACE NAME) where they would park their cars, the Convoy cars.
MR DLADLA: If I was ahead of my colleagues I would have been in a position to prevent this, even Ďthough we did hear the gunshot or gunfire. Because I had that right to instruct or to tell them what to do.
MR DLADLA: If I was the first one to get there or ahead of the colleagues, I would have prevented this attack, prevented my colleagues from attacking. Because I was the leader of the youth league I would have been in a position to stop them. But unfortunately I was in fact the last one to get to the scene and the damage was already done.
MR DLADLA: If I saw him, because I knew him, I would have been able to prevent or stop them from attacking. The reason why I would have prevented, itís because I was the leader, I would have stopped them if only I was ahead of ...(intervention)
ADV SIGODI: Well the question is, you are saying that you thought that this person was shooting at you. What difference would it have made, your knowing him, if at all you thought that he was shooting at you?
MR DLADLA: Iím with you now. I donít know where to start, but that gunshot, it sounded as if somebody was preparing for a fight of war, and all the people who were in the bus noticed that and we immediately decided to attack back. I was not sure as to where this gunshot was coming from. This gunshot, we had experienced in the past attacks each time we will be going to our conferences or meetings.
MR DLADLA: As a person who was in the bus, and I was occupying the back seat, and we were singing at the same time, so this gunshot sound brought people to wonder and suspect that we are being attacked and immediately we got off or out of the bus and we saw this car in front of us, and they started attacking, thatís when I arrived and added ...(indistinct) above to the work that they had already started. I was not even sure as to where the gunshot was emanating from.
MR DLADLA: I donít think so, I donít suspect that way. As I was in the bus, and seeing the group storming to this man in the car, I fairly believed that he was the person shooting. I think if I was ahead of them and discovering that this is a man I knew very well that maybe would not even have happened, although I must confess that the gunshot was so loud and it seemed it was emanating from just around the corner, so close.
MS PATEL: In fact the evidence at the trial was that the car had stopped a hundred and fifty metres away from where the bus had parked. So if the gunshot sounded very close to the bus, why did people automatically, why did you assume that it came from the car?
MR DLADLA: The car had parked a distant, a short distance away from the bus and in front of the bus, and as that happened, as we heard the gunshot, we took it that it was coming from the car, and as I have already said that if only I was ahead of my colleagues and my friends I would have been in a position to prevent or stop the attack.
MS PATEL: But the point is, even after you got there, and you stabbed the deceased, you must, I put it to you you must have seen who he was, and despite that you didnít do anything to stop the attack on the deceased.
MR DLADLA: After, or immediately after I sustained injuries I left immediately, I went back to the bus. I only discovered after my arrest that this is a man I know very well, thatís why I knew I am being arrested and we informed that we are the ones who perpetrated this.
MS PATEL: And given that you knew the man very well, you would have know that he wasnít an ANC member. In fact inasmuch as you know that he was a driver during the week, he was in fact a priest at the church of Zion.
MR DLADLA: That I did not know, as to whether he was IFP member or not. As I said, that Mr Madisela, the station commander, that is, he knows very well I grew in front of him. I grew up in front of him and there was nothing else I would have done to him, or evil for that matter. But unfortunately we are quite a group of IFP people and my not being ahead of the group or the colleagues or my friends I therefore was not in a position to prevent or stop the attack and I could not even recognise, I did not even recognise the car in which the person was, because if I did I would have noticed that this is a man I knew very well, because I used to see him at the rank in Nomchezi.
MS PATEL: Given that you were the leader, and you say that you would have had the power to stop everybody if you were in front, would there, for you, in terms of how you would have handled the situation had you been in front, would the reasonable thing not have been, given that you were a busload of people and he was just one person, to get him out and search him and see where the gun is and ask first what is going on, or to question him at least?
MR DLADLA: The way the gun sounded, or the shot sounded, is the very thing that led the people to be highly infuriated and to attack. For them to even get, as Iíve already explained that if I was one of them who arrived there first I would have been in a position to prevent, but when you are scared you will not be in a position to talk or greet. Even yourself, once you hear something loud you will literally want to prevent or to stop it, and then when a person tries to stop you, you will not want to listen to that, youíll want to charge forward and do as you deem fit to prevent your life. What Iím saying is that if I was ahead of my colleagues I would have been in a position to prevent or stop the attack because in fact what happened, the following day it was only when I was furnished with full information as to what was happening and who the person was.
ADV SIGODI: You were asked by the Chairperson if there was no possibility that it could have been the exhaust of the motor vehicle, and your answer was that you were sure it was the sound of a gunshot. Do you remember that?
MR DLADLA: Yes, I remember it was the gunshot sound. We know guns very well. We know their sounds as well. I know and I can say this beyond reasonable doubt that it was the gunshot sound, not anything else. The sound of a carburettor, itís a different sound altogether.
MR DLADLA: After all this we left immediately. We got in, they also followed into the bus and we took off. And I would not even have been in a position to tell if there were other people who remained behind as we were taking off or leaving, but we left immediately after the incident.
MR DLADLA: When I got there as they were attacking him, I left him lying on the ground and went back to the bus. Thatís all I know and remember. We then decided to leave and we were scared thinking that something else may transpire as well following this incident.
MR DLADLA: If we are a group of people and we are being shot at we tell ourselves that we will charge forward. No matter what happens, we will charge forward. He will shoot continuously or indiscriminately as he will be shooting, but that will bother us not, we will continue and charge forward.
CHAIRPERSON: Well now just letís talk about the fact that you recognised the man that you had attacked after you attacked him. You took part in stabbing him, and you were content to let him lie there and die and you got into the bus and you drove off. At the time you stabbed him you didnít recognise him?
CHAIRPERSON: They went to attack the source from which the gunshot came. Thatís what they went to do. They didnít run there to defend themselves, they went to attack the source from which the sound came.
MS PATEL: Yes, alright. Now, let me just take you back to the trial. There was a witness by the name of Mavis Radebe, who was in fact an IFP supporter and she was sitting on the bus. She makes no mention of a gunshot, or gunshots, neither did anybody else who testified at the trial. Can you explain that? And she wasnít the only person there who testified who came off the bus.
MR DLADLA: There are those who heard this gunshot. Say Mr Mabaso, the investigator, had already arrested a number of this group. Mr Mabaso took my relative together with others in the bus and influenced them to try and disrupt this whole case, as I tried to even explain this further I provided a picture. He is also implicated in the case of Glen, as he was released from prison and was assaulted outside. That I was told by other people in prison. He, a certain amount was paid and my aunt came to prison and explained to me that Mr Mambaso, he had fabricated some information.
CHAIRPERSON: The question really was that the witnesses at the trial did not make mention that there was a gunshot. Thatís the question. Thatís true isnít it, that at the trial they didnít mention that there was a gunshot?
MR DLADLA: Referring to the witnesses in Court, they did come forward but the majority of the people who were with in the bus were not part of that trial and itís not true what was mentioned was said in the Court.
MR SAMUELS: For the record Honourable Chairperson, thatís his plea explanation in terms of Section 115. It wasnít actually testimony, just for the record, but he actually said that in his plea explanation, so for the record.
ADV DE JAGER: yes, Iíve been quoting from page 8 of the record, and itís, my attention has been drawn to it that it was the plea explanation that he gave and not actually oral evidence, but that was his explanation in Court, that he wasnít there at all. Is that correct?
MR DLADLA: There was a gunshot. And that happened twice. We wouldnít have attacked an innocent person, or an innocent car for that matter, with no apparent reason. There was, there would have been a motivator motivating us to do what we did. It was a gunshot. If only I was ahead of my colleagues
CHAIRPERSON: Donít repeat that, weíve heard you to say that already. You have repeated that several times. Now it has been put to you that night everybody was singing in the bus. You were in the back of the bus. There was a lot of noise in the bus. Is that right?
CHAIRPERSON: Then you heard a sound that came like a gunshot? It could have come from anywhere, but you all rushed out of the bus, and there was a car parked a hundred and fifty yards ahead of you and everybody took it for granted that the shot came from the car and went to attack it.
MR DLADLA: No-one witnessed to that effect, that there was a gun or a gun was found, but we did hear the sound of a gun. We wouldnít have picked on that car had it not been for the gunshot that we heard. We wouldnít have. But then again it was a way of defending ourselves since we had also experienced these attacks in the past. Each time you hear a gunshot ordinarily youíll want to look around and see as to where this gunshot is coming from.
MR DLADLA: No. The reason why we took notice of that car is because of the lights that were on and suddenly went off. And that raised great suspicions to us that it could be the car that was shooting, and suddenly we heard the gunshot so it went without saying that it must have emanated from the car, the gunshot that is.
ADV SIGODI: You say that you went to attack because of these gunshots, and one of your primary reasons that you have mentioned here is that previously there had been attacks on you as IFP people if you went to the meetings. Did I hear you correctly?
MR DLADLA: We were attacked around June or July 1993 when we left Zwelitsha to heading towards town we were attacked, the Kombis were attacked as we were preparing to go to Ulundi. We knew, and suspected very well that we would be attacked and that indeed happened, and yet it turned out that itís not the way we thought, because I only discovered after the incident that itís not true.
MS PATEL: Thank you Honourable Chairperson. If we can just refresh your memory. No, before I do that, you stated that if you were in front things would have happened differently. I accept that. Let me put to you the evidence that was led at the Court during the trial, that you, together with some of the other accused, were of the first people, the only people who had gotten off the bus. There was no evidence that you were right at the back, or that you were the last person. In fact that you had all gotten off together. Then further, that you all went to the car together and the driver was dragged out. So you were present at the car from the inception of the assault. What is your comment?
MS PATEL: It was also stated that whilst you and the rest of the people were still at the car busy with the deceased, that Jabulani Mkise, who was accused number on in the trial, had come back to the bus and threatened to kill people if they would say anything about he assault on the deceased.
MS PATEL: Now I put it to you, if your intention was to prevent further attacks and protect people on the bus that you were on, there would have been no need to in fact threaten the people who you were seeking to protect.
MR DLADLA: Yes, there was no reason, because my sustaining this injury led me to go immediately back to the bus and somebody enlisted some help in the bus. As to Jabulani Mkiseís threats in the bus, that I did not hear.
MS PATEL: The evidence that was in fact accepted, was that you didnít get back onto the bus at that stage, that you got back onto the bus at Wembezi. You, together with accused number four, who is your brother, and accused number nine, who is Sam Ndaba.
MR DLADLA: No, I did not do that, because I was already injured. How would I be able to push the car towards the rocks since I had already sustained an injury, as Iíve already showed you where I sustained this injury.
MR DLADLA: The way these gunshots sounded there would have been no other way to prevent this, as I said I was in the bus and occupying the back seat, and I disputed all that in the Court. But now I believe itís time for me to tell all the truth and bring people to light. So there can be reconciliation amongst the people where I come from. These are different times we live in. Itís time we put the past at the back and move on, and I do believe that the prison has contributed in building me.
MS PATEL: Iím putting it to the applicant, that give that his brother was killed after the incident, that the killing of his brother had no bearing on his state of mind at the time that the deceased in this matter was killed.
MR DLADLA: From what I heard from the inmates who were friends to Glen, and since they belonged to the same organisation, ANC that is, he relayed that to them and one of them came to relay that to me that my brother was killed. But he was not convicted for that.
MR SAMUELS ADDRESSES COMMITTEE: The application before the committee stems from an application made by Mr Mbi in connection with a death that occurred in August, on the 27th August 1993. The evidence that Mr Mbi led was that his a member of the IFP, his family are very ardent supporters of the IFP, his father was, held a very senior position, and he had been brought up in a household that followed the teaching and the beliefs of the IFP. It is clear that he is not a person using the, this opportunity, the opportunity afforded by the TRC, to escape a criminal act, because itís clear from the article presented to the committee that members of his family have been the victims of politically related violence, and that was the purpose of handing
in the article, to show that. In fact, even Ďthough this violence occurred at a subsequent date, the applicant is not seizing on this opportunity to hide his criminal activity. Clearly there must be something, something happened on that day, to spark a group of young IFP supporters and members to cause them to attack the motor vehicle. I do not believe that itís necessary for the applicant to have painted Mr, the deceased, Mr Madisela, as a person who was someone who fired upon innocent people in the bus. Perhaps he had nothing to do whatsoever with the shooting. But what is important for this committee is that at the particular time when shots were fired the vehicleís lights were turned off under suspicious circumstances, causing the group to take evasive action whilst they were under fire. At the target which, the source which it most likely emerged from. Obviously if they remained in the bus the chances of them sustaining injuries and possibly having fellow members of the IFP killed, would have been greater. They would have had to react quickly and prevent the person firing at them, giving him or her more opportunity of doing so. Itís clear that some of the members of the bus immediately ran to this motor vehicle and attacked the driver. One person escaped. As far as the applicant is concerned, and much has been said about this, and he has been questioned about this at length, he indicated that had he been the first one, and had he had ample opportunity of identifying the deceased, he would have stopped the attack on the deceased. Perhaps what he was trying to say was that he believes that the deceased was not one likely to fire upon IFP supporters, and that if he were able to recognise him he would have, as a leader of the youth league, would have been able to prevent this from happening. Itís like a, perhaps a platoon that goes into a village, and hears gunfire and fires at some source the believe attacking them, only to discover itís perhaps fellow soldiers in war, or people on their side. I mean this has happened as recently as the last attack on the, Iraq, where American soldiers and British soldiers have shot each other. So it, given the situation, and what is important here is the situation determines the kind of action. The situation here determined quick action. The situation determined action against a particular source. They were under attack on many occasions, as many as five times in one journey. They had to respond to the attack and prevent further harm to their group. Unfortunately, and perhaps incorrectly, they chose the deceasedís motor vehicle. It seems to me that the applicant does have a political motive for the killing in that he was protecting members of his organisation, and showing the world at large that they are able to protect themselves. This was a situation prior to the 1994 elections when political parties were jockeying for positions, jockeying for control especially of Natal. And obviously there was a great deal of benefit to de-stabilise the political partiesí meeting content, and during this period there was abundance of killings that was reported in the newspapers, and political parties on both the ANC side and the IFP side, supporters of both these parties were victims and perpetrators, as this committee is well aware. I am submitting with respect, Honourable Members, that the applicant has been truthful. He has set out the reason why he killed, and he has shown political motive. There may have been here, in this case, a lack of corroborative evidence. The fact that no gun was found, no shells were found, but these were not crime scenes that were handled methodically, and where the community played a supportive role to the police force of today. In fact the police force were very vilified. The applicant himself testified that he felt that a Sgt Mabaso had manipulated the evidence against him, so they had looked bad at the trial. So, much cannot be extracted out of the fact that evidence which was likely to support the applicantís version was not presented in Court. In the circumstances I submit ...(intervention)
ADV DE JAGER: But it goes further than that. The fact that there was no gun that day, he himself didnít see a gun, they didnít look for a gun, we now everybody was looking for weapons at that stage, but leave that apart, but he didnít see a gun. There is no evidence at all that anybody saw a gun. Isnít that a reflection of the credibility as to whether there was a gun at all?
MR SAMUELS: To the extent that he testified, that he was, he came out of the bus at a stage when they were already dragging out the driver of the motor vehicle. Letís assume that the driver had a gun. Wouldnít the people that reached the motor vehicle first have disposed, dispossessed him of the firearm, before they could drag him. They would not drag him out whilst he held a firearm, and the firs thing that they would have done was to have taken the gun in their possession or thrown it away.
MR SAMUELS: He indicated that he was the only one from Zwelitsha, pardon from Wembezi, and that this was a largely Zwelitsha crowd that was going, so it is not clear whether he was the leader, a leader as such would have got a report from the people from Zwelitsha, and he indicated that there were a number of people in this group.
CHAIRPERSON: He repeated several times the confidence in his ability that had he been there ahead of them he would have prevented this attack because he was the leader of the youth, and Iím basing my question on his repeated assertion that he was the leader. Now if they found a gun would they not have reported to him Ďhere is the gun that was used to fire at us.í? That wasnít done because there was just no gun found.
MR SAMUELS: Honourable Chairperson there could be various possibilities for that. One the firearm could have been taken by the people who reached there, and bearing in mind that in 1993 when the war between the, some certain sections of the political parties, were being carried out, a gun was a very useful and expensive commodity. People could have taken it for their own purposes. It is clear that somebody left the vehicle and ran away. Itís possible that that person had taken the firearm away.
MR SAMUELS: Itís very possible that there was no gun. That is a possibility as well. That in fact there was no gun in this vehicle, and perhaps the Honourable Chairpersonís own suggestion that this vehicle whose lights switched off perhaps stalled and made two sounds that sounded like a firearm. Itís quite possible, you know in those circumstances, that that could have been what occurred.
CHAIRPERSON: The sound may have come from anywhere simultaneously more or less with the light of the car going off. Here are these chaps, they get out of the bus and all they see is a car whose lights have switched off suddenly. They draw a conclusion and they rush to attack that vehicle, without thinking.
MR SAMUELS: Honourable Chairperson, how much time must one give? Letís assume that they have this subjective belief that theyíre being shot upon by the person from the vehicle, and a group of people rush this motor vehicle. Must they wait until someone there is shot and killed before they attack? Must they wait before this person escapes? How does one? One cannot be clinical in situations where one is being fired upon, with respect Honourable Chairperson. This is a situation, itís a situation where they experienced attacks previously, and having been fired upon previously they are unlikely to react as clinically and as sensibly as perhaps we would require them given the surroundings that we are seated here right now. Iím saying that the circumstances justified their, and their subjective beliefs justified the manner in which they responded.
Honourable Chairperson Iím submitting with respect that having come clean to this committee and the fact that there appears to have been a political motive, one that they tried to defend the people in the bus, and two, send out a message that they can defend themselves in future, that the applicant should be granted amnesty. Iím submitted that his remorse that heís shown was genuine remorse and that he would be the one who should in fact qualify for amnesty.
MS PATEL ADDRESS COMMITTEE: Thank you honourable Chairperson. Briefly to respond to my learned colleagueís address to you, he has in fact conceded that it is possible that there was no gun. It is my contention that it is more probable that there in fact was no gun. If there was, at least the deceased would have tried to protect himself with the use of the firearm if he indeed had one on him, once the group of people had approached him and he would have realised that he was in
trouble. Furthermore, Honourable Chairperson, my learned colleague has based his argument that there was a gun on the fact that, on the probability that somebody might have removed the gun before the applicant himself got there, yet the evidence at the trial was in fact that the applicant was part of the initial group, or part of the group that had gotten to the deceased, and had assisted in dragging him out of the vehicle. Furthermore, Honourable Chairperson, if one considers the context, there is no evidence that the bus was being fired upon. The only evidence that we have is the say-so of the applicant that he heard gunshots. This is not borne out by the testimony of anybody at the trial, and in fact I might add that persons who had testified at the trial were in fact IFP supporters who were on the bus.
I would furthermore ask you to take into consideration in determining the motive of the applicant, that if it was indeed to protect the persons on the bus, then one needs to weigh that up against the evidence at the trial, of the witnesses, the female witnesses who in fact stated that they were threatened with murder if they had in fact, if they in fact had told anybody about what had occurred there that day. I will ask you to take into consideration further, into further consideration, the question of proportionality. The deceased was alone, he was unarmed, the group of people who had approached the deceased, in terms of the evidence before us there was no discussion with him, there was just an attack immediately.
MS PATEL: Which is in fact what had occurred. The deceased had come there merely to drop somebody and was having problems with restarting his car, as the evidence was at the trial at the time. And given that the applicant has stated that he was the leader, he would have been in control of the group that had gone and approached the deceased. I would submit that it is expedient for him to state to us here now that he was in fact the last person who had gotten to the deceased. And furthermore, that question of expedience is, it goes over and beyond that, given that inasmuch as he has now testified to us that after the incident he realised who the deceased was, he despite that went and wrote in his application form that the deceased was an ANC person. Yet he confirmed to a question of mine whether he knew that the deceased was a priest or not, he said Yes.
MS PATEL: And he knew full well that that wasnít the case. In fact his testimony to us is that he would have prevented this attack if he had gotten out of the bus first, because he knew who the deceased was. That further makes, I would submit makes no sense, given that he stabbed the deceased, so he must have been very close to him at the time that he had stabbed him, and would have been in a position to identify him. In fact, the deceased was stabbed on the chest, which means that he was face to face with the deceased.
It is my respectful submission, Honourable Chairperson, that the question of what had in fact motivated the applicant to kill the deceased is something which remains a mystery to me, Honourable Chairperson. I would, however, submit that it wasnít politically motivated.
MR SAMUELS IN REPLY: Thank you Honourable Chairperson. I think to the extent that the application on page 2 deals with two people, Teaspoon Mkhize and Madisela, Mr Chairperson, itís clear that in his application he talks about two people. Unfortunately we havenít cleared up which he was referring to, but what he did indicate at the trial, he had seen the lady who was with the deceased, and he had known that she belongs to the ANC.
MR SAMUELS: He did indicate that she was chased away by other people at the scene. That she was there and that she had gone away, and she had testified at the trial, so he obviously knew of her presence at the scene because he heard her evidence in Court. So when he have written the application he would have known that she in fact had come into Court and testified that she was.
MR SAMUELS: He hasnít been the one who filled in the form, it seems, with any level of great understanding of the form. For instance, on page 3 where it says did you get any benefit, benefit in any way financially or otherwise, he says ĎI get my benefit after working.í So heís obviously
MR SAMUELS: And in fact the manner in which most of the questions are answered will show a poor understanding of what the question is about, so Iím saying one cannot draw too much from the manner in which the form, the application form, is actually answered.
Just to deal with a few points mentioned by my learned colleague. Firstly, she argues that in order for the victim to be stabbed the applicant must have been very close. This was a chaotic situation, where people were around the deceased to such an extent that someone actually stabbed the applicant, so it was not an orderly attack. And in these kind of situations where the victim is probably cowering or trying to cower, itís possible for the attack to have taken place and the identity of the victim not to have been known to the attacker. It doesnít necessarily have to be a face to face attack. The other, perhaps what I believe to be a misconception, is that the applicant has indicated that he was the leader of the group going to the rally. I donít believe that his evidence was that he was a leader of that group. What he said he was an IFP youth leader, he lived in another area, and perhaps as such he would be recognised as an IFP leader. If you live in Durban or in Maritzburg, in Pietermaritzburg, and if youíre an IFP leader, youíll be recognised by the people of Pietermaritzburg as being an IFP leader. It doesnít mean that youíre an IFP leader of the people living in Pietermaritzburg, so therefore, to the extent that he could have utilised his influence as an IFP leader living in another area, I think thatís what he indicated, but he was not the leader of that bus. So, to that extent, he didnít have to take the first, no-one was answerable to him for their actions, etc.
ADV DE JAGER: But if one tries to picturise the scene, heís coming on the scene, this man was grabbed, he was already sliding down to the ground. He doesnít even know whether he succeeded in stabbing him, but there seems to be so, people so reckless, that although they had this one target somebody stabbed him from the front, near his collarbone. It seems as though the other people with whom he was involved was so reckless it seems as though, I donít know whether they had any motive or whether they had liquor, or whatever it may be. It seems like an ordinary criminal brawl.
MR SAMUELS: That is correct, Honourable Chairperson. They appear to be in a state of frenzy having got hold of somebody who they believed was actually firing on them and they took the action in such a way that showed that they were carrying out this deep-seated interest to protect themselves and to send out a message on behalf of their organisation. The singing in the bus, they must have been singing political songs, and that must have worked them up into a political frenzy as well. My learned colleague conceded that as far as she is concerned that itís a mystery as to why this person was killed, and what other explanation can one give to this killing? Here is somebody who is a priest in his community. Heís a respected person. His items of jewellery, etc., were found on the scene. His watch was found on the scene. Itís not a criminal act where they intended robbing him of anything because they found his watch on the scene.
CHAIRPERSON: ...(indistinct) would he have come there especially to attack this bus. He just happens to be there. The lights go off at a time when a noise of a gun or something like that was heard, and these youngsters in the bus rushed out in a wild frenzy, and all they saw before them was this car and they just got stuck into the car and itís sole inhabitant, without regard to any questioning as to why he did what he did. Was he standing there to prevent the bus from going? They could have easily taken him out of the bus and damaged his vehicle, without having killed him.
MR SAMUELS: But Iím submitting, given their time, given the time in which they lived, 1993, when this incident occurred, it was just before the elections, one needed just to go through the newspapers of that time.
CHAIRPERSON: ... Court when they framed the Act knew they were dealing with that particular period, and therefore they do stipulate that one of the tests that you apply is to see whether the act was disproportionate or not.
MR SAMUELS: I take the Honourable Chairpersonís point, but Iím say proportionality must not be measured in todayís standards. The proportionality of the act must be measured in the light of the circumstances which this occurred. It was a situation where in some areas there was virtually war. I mean these people were on their way to a meeting. Somebody may have fired upon them. Itís most likely somebody fired a firearm. They were fired upon before. They were attacked. Itís clear that the applicant lost a few of his family members to political violence. These were times in which at some instances one acted so quickly and without foresight, that oneís act may today appear to be disproportionate, but given the circumstances one acted within the, in that framework, and in that time zone, I submit that those acts would satisfy the proportionality test as laid out in the Act. I have nothing further to add, Honourable Chairperson.
ADV DE JAGER: Youíve handed in that newspaper clipping. I donít think - weíve got the fact it was after then, I donít think itís of any value to us but it may be of sentimental value to him, so I donít know whether you really want to hand it in or - weíve got the facts as far as itís concerned, and you could ...