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Amnesty Hearings

Type AMNESTY HEARING

Starting Date 08 February 1999

Location PIETERMARITZBURG

Day 6

Names LINDA JEFFREY XABA

Case Number 3832/96

CHAIRPERSON: Ms Patel, are you ready to proceed?

MS PATEL: We are thank you, Honourable Chairperson. The first matter on the roll for today is that of Linda Jeffrey Xaba, application number 3832/96.

MR WILLS: Thank you Mr Chairperson, Members of the Committee. I place myself on record, John Wills, Attorney of Pietermaritzburg, Iím acting for Mr Xaba and Iím ready to proceed.

MR SHAW: Mr Chairperson, my name is Shaw, Iím an attorney from the firm Elliott and Walker in Kokstad. I represent the objector, Mrs Baxter.

CHAIRPERSON: Is that the widow of the deceased?

MR SHAW: That is correct Mr Chairman.

CHAIRPERSON: Are you the applicant in this matter?

MR XABA: Yes.

CHAIRPERSON: Will you please stand. Are you prepared to take the oath?

MR XABA: Yes.

CHAIRPERSON: Will you please stand?

LINDA JEFFREY XABA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Wills.

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.

CHAIRPERSON: Yes, that has been noted.

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)

ADV DE JAGER: May I just come in here. I believe the deceased was Baxter, B A X T E R, according to the trial.

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 XABA: Yes.

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."

Do you confirm that?

MR XABA: Yes I do.

MR WILLS: Secondly you say something which, you say that he was intimidating local population to prevent them from voting in the election. What do you say to that?

MR XABA: Thatís a mistake that happened.

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.

You were convicted of this killing?

ADV DE JAGER: Itís not his handwriting?

MR WILLS: No. I can place on record that that is my handwriting.

You were convicted of this murder and possession of illegal firearms and ammunition, and you were also attempted, you were also convicted of attempted robbery, is that correct?

MR XABA: Yes.

MR WILLS: And you got a sentence, an effective sentence of 25 years imprisonment was handed down.

MR XABA: Yes.

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 XABA: Yes I do confirm that.

MR WILLS: But you deny that at stage you attempted to rob the deceased.

MR XABA: I dispute that.

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.

MR WILLS: And eventually after returning to South Africa you trained certain people in the Bulwer area in Natal?

MR XABA: Yes, thatís so.

MR WILLS: And because the police were looking for you, you went down to Mount Ayliff?

MR XABA: Yes.

MR WILLS: There you were confirmed to be an ANC member and you started taking an active role in the ANC and particularly in the voter education campaign?

MR XABA: Yes, thatís true.

MR WILLS: And this is where you encountered the problem in respect of the deceased.

MR XABA: Yes.

MR WILLS: Okay. Can you tell the Committee what that problem was?

CHAIRPERSON: If you can just start by telling us when was it that he went to Mount Ayliff.

MR WILLS: Certainly Mr Chairperson.

MR XABA: I went in 1993.

CHAIRPERSON: When?

MR XABA: I think it was towards the end of July or early in August.

CHAIRPERSON: Thank you.

MR WILLS: Can you answer my question as to what problem did you encounter?

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.

CHAIRPERSON: Apart from misleading the people you say he came to harass the community, what do you mean by that?

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.

CHAIRPERSON: Yes, Iím sorry about that. Please, who wrote the letter, and to whom?

MR XABA: The committee wrote, the branch committee that is, wrote the letter and it was going to Mr Jakuja who was the Chairman of the Zonal Structure.

CHAIRPERSON: Hold it, hold it, I would like you to spell the names as you go along. Mr Jakuja. How do you spell that name?

MR XABA: J†A†K†U†J†A, Jakuja.

CHAIRPERSON: And who was Mr Jakuja?

MR XABA: Jakuja is the surname. I donít know his name.

CHAIRPERSON: Who was he? What position did he occupy?

MR XABA: He was the Chairman of ANC Zonal Structure.

CHAIRPERSON: And where was he situated?

MR XABA: He was situated in town, Mount Ayliff.

CHAIRPERSON: Yes. How was that letter delivered to him?

MR XABA: The committee took the letter to him, between the chairman and the organiser and the secretary, amongst them.

CHAIRPERSON: Iíd like the names of the persons that delivered the letter.

MR XABA: Gwebani.

CHAIRPERSON: Spell that name. As you go along mentioning names for the first time will you spell them. So the letters were delivered to Mr Jakuja, by whom?

MR XABA: Z†W†E†L†I†K†H†A†N†Y†I†L†E, Gwebani, itís G†W†E†B†A†N†I.

CHAIRPERSON: Yes, thatís the name of one person.

MR XABA: Yes, very true.

CHAIRPERSON: And who was he?

MR XABA: He was the organiser.

CHAIRPERSON: Who else?

MR XABA: Deni, D†E†N†I. That was the name but the surname is D†A†N†Y†I†Y†E†L†I.

CHAIRPERSON: Who was he?

MR XABA: He was chairman of the branch committee.

CHAIRPERSON: Who else?

MR XABA: Vidio, V†I†D†I†O. Thatís the name and the surname is G†W†E†B†A†N†I.

CHAIRPERSON: Yes, who was he?

MR XABA: He was Chairman of Youth League.

CHAIRPERSON: Thank you very much. Do carry on.

MR WILLS: Iím sorry, you mentioned the fact that the secretary of the branch was also involved here, is that correct?

MR XABA: Was involved what?

MR WILLS: Was involved with this delivery of the letter. In his earlier evidence.

MR XABA: Yes.

MR WILLS: And who was the secretary at that stage?

MR XABA: My apology. Vidio was the Chairman of the Youth League and the secretary and the mother body at the same time.

MR WILLS: And you indicated that you got no response to this letter, so what happened thereafter?

MR XABA: After that I took it upon myself that I will assault him and kill him, Mr Baxter that is.

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?

CHAIRPERSON: He said he took it upon himself to do so, which means that he wasnít ordered by anybody.

MR WILLS: I understand that Mr Chairman. Iím enquiring as to what the policy was in MK in regard to these types of events.

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.

MR WILLS: And then, after the incident ...(intervention)

CHAIRPERSON: That means if you were a commander of the MK at the time you had a right to do what?

MR XABA: Yes.

CHAIRPERSON: To take decisions?

MR XABA: Yes.

CHAIRPERSON: What else did you say?

MR XABA: To report also after I have taken and acted upon the decision.

CHAIRPERSON: Yes, do carry on.

MR WILLS: Thank you Mr Chairperson. Is it not so that you did in fact report what you had done, and if so to whom?

MR XABA: I did report that to the chief staff of Umkhonto in Umtata by the name of Sibusiso and another name is China. Shiner or China.

CHAIRPERSON: ...(indistinct) take all that down. You did report to China. What did you say his position was, what office did he occupy?

MR XABA: He was Chief of Staff for Umkhonto at the time in the Transkei region.

CHAIRPERSON: Yes, do carry on.

MR WILLS: Thank you Mr Chairperson.

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 XABA: Yes I do.

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 XABA: Yes.

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.

Iím quoting from the third-last paragraph in the affidavit on Page 22 Mr Chairperson.

Do you confirm that?

MR XABA: Yes I do.

MR WILLS: Now when did you inform this Committee of this decision in relation to the letter that you spoke of earlier, when you wrote to the Zonal Chairman?

MR XABA: I notified it right before I took the decision of killing Mr Baxter.

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 XABA: Yes.

CHAIRPERSON: Just letís get this clear. Was it by letter or was it verbally, was the communication to the Zonal Chairman done by letter?

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.

CHAIRPERSON: Paragraph 13?

MR WILLS: No, paragraph 15 on Page 13.

CHAIRPERSON: ...(indistinct)

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.

CHAIRPERSON: I want to know whether he himself wrote the letter or what it somebody else?

INTERPRETER: The speakerís microphone is not activated.

CHAIRPERSON: Who was that letter written by?

MR XABA: It was written by the committee.

CHAIRPERSON: Carry on.

MR WILLS: Now you say in your affidavit, and youíve indicated in oral evidence, that you wrote this letter to the Zonal Chairperson, Jakuja, indicating what the problem was. Do you recall that?

MR XABA: Yes, I do recall that.

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: Yes, I do recall that.

MR WILLS: Now I want to know which was first, the letter or when you took the decision to take the solution as an MK member.

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)

ADV SIGODI: Just to get some clarity on this letter. You say you advised the committee to write a letter to Mr Jakuja?

MR XABA: Yes.

ADV SIGODI: What were to be the contents of that letter?

MR XABA: To report to - to give report to him and inform him about the activities of Mr Baxter amongst the ANC members of the community.

ADV DE JAGER: Did Mr Baxter belong to any political party?

MR XABA: He was a card-carrier of ANC.

CHAIRPERSON: Yes, carry on.

MR WILLS: Thank you, Mr Chairperson.

CHAIRPERSON: You said that you advised ...(indistinct)

INTERPRETER: The speakerís microphone is not on.

CHAIRPERSON: ... Mr Jakuja, you have told us that. What happened after that?

MR XABA: The committee did write the letter.

CHAIRPERSON: And what response did you get from Mr Jakuja?

MR XABA: No response thereof.

CHAIRPERSON: Carry on. What happened next?

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.

INTERPRETER: The interpreter didnít get the last sentence.

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)

INTERPRETER: The interpreter has a problem, the system keeps cutting. I can barely hear the applicant and the speaker gets to be incoherent.

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: Yes.

CHAIRPERSON: Carry on. You said something about 1994, what was happening? You said early in 1994? What happened?

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)

CHAIRPERSON: You are going too fast. What is the name of this place that you say you went to? Welmanstad?

MR XABA: Walmansdal, the name of the place.

CHAIRPERSON: Where is that?

MR XABA: I think itís in the northern part of Pretoria.

CHAIRPERSON: Why did you go there?

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.

CHAIRPERSON: Who was the person that sent you there?

MR XABA: It was the regional army commissar of MK.

CHAIRPERSON: What is his name

MR XABA: Pitlo is his name.

CHAIRPERSON: Will you spell that for me?

MR XABA: P†I†T†L†O - Pitlo.

CHAIRPERSON: Yes, now what is the office he occupies. what was his position?

MR XABA: He was an army commissar.

CHAIRPERSON: Yes?

MR WILLS: Thank you.

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?

MR XABA: No, this is a mistake. In 1994 I was arrested next to or in Creighton.

CHAIRPERSON: What were you arrested for?

MR XABA: I was arrested for the very case of killing Mr Baxter, and another one that I committed in Pinetown in 1992, so there were two warrants of arrest in other words.

CHAIRPERSON: What was it that you committed in Pinetown?

MR XABA: In 1992 I was arrested in possession of arms that I had concealed in my, in the boot of the car and I was transporting them to Natal Midlands.

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.

MR WILLS: I just want to clear something up, and I refer the committee to Page 11 of the papers in paragraph 20.

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 XABA: No, itís not like that. This is incorrect. It was August 1992 when I was arrested in Pinetown. On the 4th of September it was next to Creighton, 1994.

MR WILLS: Sorry, I just want to clear that up. You say you were arrested, what year were you arrested near the tollgate?

MR XABA: It was in 1992.

MR WILLS: And in 1994 you were arrested in Creighton, at your home.

MR XABA: Yes in Creighton, on September 4. I was being arrested for killing Mr Baxter.

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?

ADV DE JAGER: I think the correct term would be indemnity, at that stage. Wasnít it under the previous act?

MR XABA: Yes.

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.

CHAIRPERSON: That was an indemnity ...(indistinct) the previous Act.

MR WILLS: Yes, thank you Mr Chairperson.

CHAIRPERSON: You say that he was granted an indemnity in respect of his sentence for fifteen years?

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.

You were serving a 15 year sentence, but you indicated you were also being held in respect of the murder of Mr Baxter, is that correct?

INTERPRETER: Please may you repeat your last question.

MR WILLS: I say you had been serving a 15 year sentence, but you were also being held in respect of the murder of Mr Baxter, is that right?

MR XABA: Yes.

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: And where were you arrested then?

MR XABA: I was arrested in Creighton and I was on my way to vote.

MR WILLS: That must ...(intervention)

ADV SIGODI: ...(indistinct)

MR WILLS: So was this the voting for the local government elections, when you were arrested?

MR XABA: Yes, the local government.

MR WILLS: And youíve been in custody since then?

MR XABA: Yes.

MR WILLS: Does that clear it up, Chairperson?

CHAIRPERSON: Yes.

MR WILLS: Thank you. May I continue?

CHAIRPERSON: Yes, please do.

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 WILLS: You also indicated in answer to a question of one of the Committee Members that Mr Baxter was indeed an ANC card-carrying member.

MR XABA: Yes.

MR WILLS: Now what was your attitude in relation to this membership?

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.

As usual, and being part of the struggle, you will find that there are some agents who will come and infiltrate ANC and I had experienced that in the past.

MR WILLS: Is it not so that one of your jobs in Tanzania, at camp in Tanzania, was to check the food that was being fed to the comrades in the camps, as you feared it was being poisoned by agents?

MR XABA: Yes.

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.

MR WILLS: Thank you Mr Chairperson. I have no further questions.

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: Just before we adjourn, what level of education has the applicant had?

MR XABA: Standard 6.

CHAIRPERSON: What kind of work have you done when you did work?

MR XABA: Carpentry and plumbing.

CHAIRPERSON: Where?

MR XABA: Railway.

CHAIRPERSON: Where?

MR XABA: Durban station, in Durban.

CHAIRPERSON: What years?

MR XABA: As from 1980 until January 1987.

CHAIRPERSON: Thank you.

The Committee will take an adjournment for 15 minutes.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Shaw, do you have any questions to put to the applicant?

MR SHAW: Thank you Mr Chairman.

CHAIRPERSON: You are reminded that you are still under oath, you understand?

LINDA JEFFERY XABA: (s.u.o.)

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.

If you would like to interpret that?

INTERPRETER: It has been interpreted to the applicant.

MR SHAW: The reason that they are opposing this application is because they are not convinced that you acted from a political motivation. Now, do you have any proof that you are in fact an MK member?

MR XABA: Yes, I do have.

MR SHAW: What proof do you have of that?

MR XABA: In MKís documents in Natal Midlands, documents in Durban, my name is there. If you check the documents of MK in Durban you will find my name there.

MR SHAW: Do you agree with me that no proof was given to the High Court in Umtata that you were an MK member, nor has any proof been given to this TRC Commission that you are actually an MK member?

MR XABA: Yes I do, I agree that I havenít provided that proof.

MR SHAW: Do you remember appearing in the Mount Ayliff Magistrates Court after, I think, you had been brought from Westville prison?

MR XABA: Yes, I do remember.

MR SHAW: And you were charged with murder in the Mount Ayliff Magistrateís Court.

MR XABA: Thatís correct.

MR SHAW: Do you recall what you told the Court?

MR XABA: Yes, I do.

MR SHAW: Could you repeat what you told the Court.

CHAIRPERSON: ...(indistinct) very broad question, about what he told the Court during an entire trial? Shouldnít you direct his attention to something specific that youíre interested in?

MR SHAW: Thank you Mr Chairperson.

Mr Xaba, in the ...(indistinct)

INTERPRETER: The speakerís mike is not on.

MR SHAW: Mr Xaba, at the Mount Ayliff Magistrateís Court, your plea explanation was as follows

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

Do you recall saying that to the Court?

CHAIRPERSON: Now just hold on. He said that to the Mount Ayliff Court?

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: So this is - the statement that you are putting before him is something he said before the trial, in the Mount Ayliff Magistrateís Court?

MR SHAW: That is correct.

Now Mr Xaba, what ...(intervention)?

CHAIRPERSON: Hold it, he hasnít answered the question.

MR XABA: Yes, I do recall.

MR SHAW: What quarrel had you had with the deceased, Mr Baxter?

MR XABA: When I approached him and I said to him: "You are here now" and my first question was: "Do you know me?", and ...(intervention)

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 XABA: Yes.

CHAIRPERSON: Right, now answer the question. What was the quarrel that you had with him?

MR XABA: He just said I was there, thatís all.

CHAIRPERSON: Thatís all?

MR XABA: Yes.

CHAIRPERSON: Thank you, you may proceed. Do you have a copy of that statement? Is that part of the bundle here?

MR SHAW: No, itís not part of the bundle.

CHAIRPERSON: Do you have a copy?

MR SHAW: I do have a copy, yes.

CHAIRPERSON: Will you be using that copy?

MR SHAW: I can hand this in to the Commission.

CHAIRPERSON: Do you intend using it, I mean?

MR SHAW: Yes, I think so.

CHAIRPERSON: Yes, will you make a copy available to us in due course?

MR SHAW: Certainly, Mr Chairman.

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: Yes but now it just happens that I donít think itís we who are asking whether he wants to use the document. I will allow him and you will have an opportunity of going through it.

MR WILLS: As you please, Mr Chairman.

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.

CHAIRPERSON: Very well, we will make a copy of this particular document. What is the date of this document, Mr Shaw?

MR SHAW: Mr Chairman itís the 28th of September 1994. Itís an extract from the recording of the plea before the Magistrateís Court in Mount Ayliff on that date, before Magistrate L G Mbete.

CHAIRPERSON: Thank you.

ADV DE JAGER: Have you got copies already, or could somebody assist him in making copies please?

CHAIRPERSON: Yes, you may proceed in the meanwhile.

MR SHAW: Mr Xaba, when did your political motivation first surface in this, as a defence?

MR XABA: Before I committed this crime.

MR SHAW: You didnít disclose your political motive at Mount Ayliff Court, did you?

MR XABA: No, I didnít.

MR SHAW: Is there any particular reason why you didnít?

MR XABA: Yes.

MR SHAW: Could you tell us why?

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.

MR SHAW: So you limited your statement to informing the Court that you were a full member of MK?

MR XABA: I didnít tell them and they didnít ask me.

MR SHAW: Mr Xaba Iím reading from your plea explanation, and this is the second last sentence

"Iím a full member of Umkhonto weSizwe so I reported the matter to Umkhonto weSizwe. I was eventually arrested.í

That is what is recorded in the Mount Ayliff Magistrateís Court on the 28th of September 1994.

CHAIRPERSON: This document will go in as Exhibit A. Please proceed.

MR XABA: Would you please repeat the question.

CHAIRPERSON: In the statement that you made to the Magistrate in Mount Ayliff you did say that youíre a member of Umkhonto.

MR XABA: I didnít say so in Court, I only wrote this to the police statement.

CHAIRPERSON: Youíre being questioned about this statement, that you did say so in that statement, you admit that?

MR XABA: Yes. I thought I was questioned about the Court, not the police statement.

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.

MR XABA: Oh yes, I remember. My apology, I remember. Itís been a long time.

MR SHAW: Was that the first time you revealed to anyone your connection with MK?

MR XABA: You mean in Court?

MR SHAW: Yes.

MR XABA: I told the police first, and then I told the Court.

MR SHAW: Is it correct that the next time that you appeared in Court was in the Port St Johnís Circuit Court?

MR XABA: Thatís correct.

MR SHAW: Thereafter the matter was postponed and eventually came before the High Court in Umtata before Judge Madlanga: M-A-D-L-A-N-G-A, and you were represented by Adv Majokweni: M-A-J-K-W-E-N-I?

MR XABA: Thatís correct.

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.

MR XABA: Sorry. What I meant was I didnít want the Court to know that my aim of killing this person was because of my organisationís objectives. It was an operation which Iíve planned.

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.

ADV SIGODI: Why would you be deported to Kokstad?

MR XABA: This is what I thought, I thought that the police from Transkei will think that I left KwaZulu Natal to fight there, and I thought that they were going to refer the case to KwaZulu Natal.

MR SHAW: Now Mr Xaba, at the trial in Umtata, before Judge Madlanga, you were represented by Adv Majokweni, is that correct?

MR XABA: Thatís correct.

MR SHAW: And can you recall how long that trial ran, for how many days?

CHAIRPERSON: ...(indistinct).

MR SHAW: ...(indistinct)

CHAIRPERSON: If you can, tell him how long it took ...(indistinct).

MR SHAW: Mr Xaba, I think in total the trial ran for a total of seven or eight days, is that correct?

MR XABA: I donít remember, but it was a long time.

CHAIRPERSON: Mr Shaw, was there any adjournment in the trial?

MR SHAW: Yes, there was Mr Chairman.

CHAIRPERSON: Was there a break in the trial?

MR SHAW: There was a break in the trial.

CHAIRPERSON: And is your question relating to this ...(indistinct).

MR SHAW: Mr Chairman Iíll get to the exact point of the question now if I may.

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?

MR XABA: Thatís correct.

MR SHAW: And so the trial proceeded purely as to whether the motivation that youíd given to the Court was true or false?

MR XABA: Thatís correct.

MR SHAW: Did you have any problems with being represented by Adv Majokweni?

MR XABA: No, I didnít have any problems.

MR SHAW: Was there in any way any criticism that you could level at the presiding judge, Judge Madlanga?

MR XABA: ...(no English translation). No.

MR SHAW: So youíre satisfied that your case was fairly presented to the Court, and that on the evidence before Judge Madlanga he took a correct decision in rejecting your supposed political motive?

CHAIRPERSON: Well he may disagree with the judge. The point of the matter is that the Judgeís decision was not ...(indistinct) on appeal. Was there an appeal?

MR SHAW: Mr Chairman no, there was no appeal.

CHAIRPERSON: ...(indistinct). A man may be convicted by a judge who might have given him a fair trial, he may nevertheless disagree with the conclusion the magistrate may have come to.

MR SHAW: I take your point, Mr Chairman.

CHAIRPERSON: Is there somewhere in the judgment where the judge says that he does not accept the motive that was advanced by him?

MR SHAW: Yes, that is contained in the judgment, Mr Chairman.

CHAIRPERSON: Perhaps at a convenient time you will refer us to that.

MR SHAW: Mr Xaba, in your affidavit which is in the application, at paragraph 15 you state that

ĎThe problem with Mr Baxter was considered serious. It was discussed at our local interim committee meeting an

d we wrote a letter concerning this problem to the Zonal Committee Chairperson, Mr Jakuja.í

Do you recall telling us that, and confirm the contents of your statement?

MR XABA: Youíre referring to my statement when I

said the committee wrote a letter to Mr Jakuja?

MR SHAW: Yes. Now what evidence did you give the Court in Umtata in that regard, about the letter?

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 SHAW: Right, so the situation now is that you in fact wrote two letters to Mr Jakuja, is that correct? - that's what you've just told us.

MR XABA: Yes. There may be two or more than two. I was the one who advised the committee to write, to write the first one. I actually advised the committee to do so.

CHAIRPERSON: When Mr Jakuja did not reply, why did you not go to him to ask him for his answer?

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.

CHAIRPERSON: You were aware that there was no reply from Mr Jakuja. You were aware that further letters were written, why didnít you ask the committee to approach Mr Jakuja?

MR XABA: The three members of the committee went to Mr Jakuja and brought the letter to Mr Jakuja.

CHAIRPERSON: Thatís not the question, the question is why did you not tell the committee to go to Mr Jakuja and get a response from him?

MR XABA: I guess I didnít think so, I thought the committee was going to do its job.

CHAIRPERSON: Yes, do carry on.

ADV DE JAGER: Did the committee deliver the second letter too, and if there was in fact a third one, did they deliver it by hand too?

MR XABA: Yes.

ADV DE JAGER: So they saw Mr Jakuja, they could have asked him; why didnít you reply to our last letter?

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.

CHAIRPERSON: It was your idea in the first place to write, that the committee should write to Mr Jakuja, wasnít it?

MR XABA: Yes, it was.

CHAIRPERSON: Do carry on.

MR SHAW: Now, Mr Xaba, you gave evidence in the hearing under cross-examination, and the presiding judge asked you when this particular meeting was held, and your answer was

"At the end of August, and also during September."

- this meeting regarding the deceased, Mr Baxter.

CHAIRPERSON: Will you tell us when you are referring to, referring from ?

MR SHAW: Mr Chairman this arises from my notes. The committee does not have a record of this.

The presiding judge asked you when this meeting regarding Mr Baxter had been held, and your response was that it was at the end of August and also during September of that year, do you recall that?

MR XABA: The judge asked me when did I arrive in Mount Ayliff, I said late July or early August. Thatís what I said.

MR SHAW: That is quite correct, and then he asked you various questions regarding these alleged meetings at which the problem of Mr Baxter had allegedly been discussed ...(intervention)

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.

CHAIRPERSON: Mr Shaw youíre relying on your notes you have made ...(indistinct), are you relying on any official Court document?

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.

MR WILLS: As you please, Mr Chairperson.

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: That is correct Mr Chairman, Iíll put to him that he had suggested to the Court that it was at the end of August and also during September.

CHAIRPERSON: Can you recall telling the Court that the matter of Baxter was discussed late in August and again in September?

MR XABA: As from late August up until November we didnít talk about this or discuss about this in one specific time but different times.

CHAIRPERSON: During that period?

MR XABA: Yes.

CHAIRPERSON: So now youíve got the position between August and November at some stage this matter was discussed in the committee.

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: It wasnít minutes, it was a letter which was written by the committee.

MR SHAW: Was the problem of Mr Baxter recorded in the minutes?

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.

ADV DE JAGER: Yes and at the next meeting they will read the minutes. Did you hear whether she recorded it or not?

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.

MR SHAW: So you donít recall whether this problem was recorded in the minutes or not?

CHAIRPERSON: I think in fairness you know, he didnít read the minutes. It may or may not have been recorded in the minutes.

MR SHAW: Mr Chairman, with respect, this was a matter of prime importance to the applicant.

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.

ADV SIGODI: And another thing, have you got a copy of those minutes, or was any copy of the minutes made available?

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 XABA: No.

MR SHAW: I see that Mr Gwebani who was interviewed on the 17th of June 1998, this is page 22, makes no mention of a letter to Mr Jakuja in his statement.

MR XABA: Yes, he didnít mention the letter.

MR SHAW: Now, have you made any attempt to contact Mr Jakuja to come and give evidence in support of this application?

MR XABA: No, I didnít.

MR SHAW: And after committing this offence, you say that you went and reported to somebody in Umtata, who was that?

MR XABA: China. His other name is Sibusiso

S-I-B-U-S-I-S-O.

MR SHAW: Do you know his surname?

MR XABA: No, I donít know his surname.

MR SHAW: So thereís no confirmation from him that you in fact reported to him?

CHAIRPERSON: No confirmation by him to whom?

MR SHAW: Mr Chairman - thereís no independent corroboration that you in fact reported to Sibusiso about this crime that youíd committed?

MR XABA: Sibusiso can actually confirm this.

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 XABA: It was a long time. I think more than two months I have been receiving these reports that he was misleading people.

CHAIRPERSON: If you arrived in Mount Ayliff in July or August, how soon after that did you receive a report of what Mr Baxter was doing?

MR XABA: Late August.

CHAIRPERSON: What year?

MR XABA: 1993.

CHAIRPERSON: Do carry on.

MR SHAW: And among these reports you received other reports that the deceased was maligning people by calling them kaffirs?

MR XABA: Thatís correct.

MR SHAW: And in your evidence in Umtata you told the Court that youíd received reports from 200 people that he had called them kaffirs, do you recall giving that evidence?

MR XABA: Thatís correct.

MR SHAW: And you also told the Court that these 200 people had also told you that he had tried to mislead them regarding voting?

MR XABA: Thatís correct.

MR SHAW: Now, you knew that Mr Baxter was a farmer, did you not?

MR XABA: No, I didnít know.

MR SHAW: You knew that he was selling milk from the back of his motor vehicle, an LDV into Transkei?

MR XABA: Yes.

MR SHAW: And I think you told this inquiry just now that your observations showed that he went, I think on a Monday and a Thursday to sell milk on that particular route?

MR XABA: He was selling twice a week. It may be Monday or Tuesday or Wednesday or Thursday, but twice a week.

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?

MR XABA: Those he couldnít mislead them, those are the ones he used to call them kaffirs.

MR SHAW: Sorry I didnít quite catch that. The ones he couldnít mislead he was calling kaffirs?

MR XABA: Thatís correct.

MR SHAW: To their faces?

MR XABA: Thatís correct.

MR SHAW: And these were people that he was selling milk to?

MR XABA: Some will come and buy milk and some will just come there. Those are the people.

CHAIRPERSON: How does he ...(indistinct) to call his customers kaffirs? If he'd insult them, why would they buy milk from him?

MR XABA: He wasnít calling them kaffirs for as long as they accept his view that they should put X next to F W de Klerk. Those who didnít accept that are the ones he used to call them kaffirs.

CHAIRPERSON: He knew full well that from then onwards they would not buy milk from him?

MR XABA: Only the ones he used to call them kaffirs were not buying milk from him.

CHAIRPERSON: So he realised that if he called people kaffirs they would not buy milk from him?

MR XABA: Yes. When he called them kaffirs, in my own view or opinion I think those he used to call them kaffirs were the ones who were arguing with him sometimes, they will answer him back badly.

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?

MR XABA: He will use the same time he is selling milk to mislead them.

MR SHAW: Now Iíve gone through Mr Gwebaniís affidavit at page 21 and 22 of the record, and he makes no mention whatsoever of this allegation of Mr Baxter calling his customers kaffirs.

MR XABA: This is how he wanted to put his statement.

MR SHAW: And you called a Mr Lusawana to give evidence in mitigation of sentence at your trial, did you not?

MR XABA: I only called the chairman of the ANC but he was also present.

MR SHAW: Yes. Mr Chairman this is at page 63 of the judgment, itís Zalisile Maxwell Lusawana.

You called him as a witness in mitigation of your sentence, correct?

MR XABA: He came out of his own will as a father but I didnít call him.

MR SHAW: And I read from page 66, line 20, or line 18

"Even my own family members were buying milk from the deceased."

That is the evidence of Lusawana, and it was then put to him:

"Were there any problems as a result of that occasioned to your family members? Did the deceased occasion your family members any problems?"

And the witness went on to say:

"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."

Now what position was Mr Lusawana, what did he hold?

MR XABA: He didnít have any position since he wasnít even a member of the ANC.

MR SHAW: So he was merely a member of the community there?

MR XABA: Yes, he was merely a member of the community and he was working at the cattle dip area.

MR SHAW: And itís clear that he heard nothing of these problems with the accused, with the deceased either.

MR XABA: I remember him saying that he heard nothing before he died, he only heard after heíd died.

CHAIRPERSON: Are you nearly finished?

MR SHAW: No.

Now, can you put forward any reason to this hearing as to why your version might have been rejected by the trial Court?

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 SHAW: Iíll withdraw that question Mr Chairman.

ADV DE JAGER: Was Mr Baxter a member of any ANC branch?

MR XABA: Yes.

ADV DE JAGER: Who was the chairperson of his branch?

MR XABA: It was Deni. His surname is Danyiyele. D†A†N†I†N†Y†I†N†I.

ADV DE JAGER: He was one of the persons you told us went to deliver the letter, isnít that so?

MR XABA: Thatís correct.

ADV DE JAGER: Baxterís ...(indistinct), the letter to Mr Jakuja. Do you know whether Mr Deni spoke to Mr Baxter about his behaviour?

MR XABA: I donít remember.

ADV DE JAGER: What was Mr Deniís attitude about this branch member of him misleading the people?

MR XABA: What he will say, Deni and his committee, they will say that the man is dangerous, the man is dangerous and they are scared of him since he is misleading people.

CHAIRPERSON: Just clear it up, what branch did Mr Baxter belong to?

MR XABA: Umwaca branch: U†M†W†A†C†A.

CHAIRPERSON: Yes, do carry on.

MR SHAW: Thank you, Mr Chairman.

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?

MR XABA: Yes, I do recall.

MR SHAW: The only single name that you could recall was one Kuki.

MR XABA: Thatís correct.

MR SHAW: You confirm that he was the only person that you could recall, that he told you that the deceased had been misleading people regarding voting? - the only person you could put a name to.

MR XABA: Yes, even though I do know others. I only have a problem with their names, but I know them. This one I know his name because he was also in the committee.

MR SHAW: What is Kukiís other name.

MR XABA: Weíve known him as Kuki. I donít know his other name and his surname. He was the chairperson of the area committee, not the executive member.

MR SHAW: And did you ever discuss the question of expelling the deceased from the ANC?

MR XABA: No, we didnít think about that.

MR SHAW: Mr Xaba, was there any opposition to Mr Baxterís business in the area?

MR XABA: No.

MR SHAW: So he was providing a service to the community?

ADV DE JAGER: What do you mean? Opposition in the sense of did he have competition or opposition in the sense of people opposing him and didnít want him to do business at all?

MR SHAW: Mr Chairman, it has been suggested that one of the possible motives could have been that opposition businessmen could have hired or requested somebody to kill him.

CHAIRPERSON: Isnít that just conjecture?

MR SHAW: Thatís precisely why I havenít put it to him, Mr Chairman.

CHAIRPERSON: ...(indistinct)

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.

ADV SIGODI: Then put the case to the applicant.

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.

MR XABA: Thatís not true at all.

MR SHAW: I have no further questions, Mr Chairman.

NO FURTHER QUESTIONS BY MR SHAW

CHAIRPERSON: Ms Patel, are there any question you wish to put?

MS PATEL: No thank you, Honourable Chairperson.

NO QUESTIONS BY MS PATEL

CHAIRPERSON: Any re-examination?

MR WILLS: No re-examination Mr Chairperson.

NO RE-EXAMINATION BY MR WILLS

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?

MR XABA: At the time when this thing happened there was no negotiations, people who were enemies never sat down and talk about differences.

CHAIRPERSON: I donít know what you are talking about. I thought at that time there was talk about elections, and he was telling people where to put the cross.

MR XABA: It is true people were talking to each other, but at that time we were the product of, we were scared that we were going to be killed and also we were killing, killing was the solution.

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: ...(indistinct).

CHAIRPERSON: Please do.

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: Thatís correct.

ADV SIGODI: Was it easy - firstly let me just get an idea of this area where you were campaigning for the ANC, was it a rural area or an urban area?

MR XABA: Rural area.

ADV SIGODI: And when conducting this voter education, how would you reach out to the community?

MR XABA: We will call them to schools or churches and we will conduct the voterís education there, we will talk to the chiefs of the areas.

ADV SIGODI: And would you get a big response from the people that you were educating?

MR XABA: Yes, we will.

ADV SIGODI: At the time that you were checking out, or in your observations of Mr Baxterís movements, when he was selling the milk, would there be a lot of people coming to buy the milk from him?

MR XABA: Yes, a lot of people would go and buy milk from him

ADV SIGODI: The point that Iím coming to is, would it have been easy for you to inform the people that Mr Baxter was misleading them, and that he should be expelled from the ANC?

MR XABA: Yes, it was going to be easy, but comrades do not like the idea of expelling other members because they think that tomorrow itís going to be them who are expelled.

CHAIRPERSON: I donít understand that answer. What does it mean?

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: And so the next best person to do would be, instead of expelling a person, was to kill him?

MR XABA: I didnít think of expelling him, I took the decision of killing him.

ADV DE JAGER: So in fact you killed a member of your own party?

MR XABA: Thatís correct.

ADV DE JAGER: Up to this day you donít know whether in fact he was a spy or not.

MR XABA: I didnít make any investigation after this incident.

ADV DE JAGER: You never asked him; Listen why are you doing this, and discussed it with him to find out whether it was the truth indeed?

MR XABA: Iíve never spoken to him before, because he never used to come to meetings. All I knew was that he was a cardholder. He never used to come to meetings.

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.

ADV SIGODI: How crucial were the results of the elections to you, how important were they?

MR XABA: It was very important to me. I wanted my organisation to win the 1994 elections. Especially in that area it was very important for me for my organisation to win.

ADV SIGODI: And this area, roughly how many people are there? Do you have an idea how big the population is there?

MR XABA: Itís an area with four chiefs.

ADV SIGODI: And if Mr Baxter had succeeded in misleading the people and have them vote for the wrong person, what did you think would have happened?

MR XABA: This was going to disturb my organisation because most people were going to vote for National Party instead of ANC.

ADV DE JAGER: During August, September, October, they were still negotiating at Kempton Park, they hadnít reached an agreement yet, isnít that so?

MR XABA: Yes.

ADV DE JAGER: So at that stage the election wasnít imminent yet. They hadnít even reached an agreement to write a new Constitution, they were still busy negotiating.

MS PATEL: Sorry, Honourable Committee Member. I believe that at that stage the elections, the fact that elections were going to be held was already settled.

ADV DE JAGER: Yes it was settled that there would be an election during the next year.

CHAIRPERSON: A decision to hold an election may have been taken, but when did the elections take place?

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.

ADV DE JAGER: They finally agreed on the New Constitution hearing, the end of November. I think there was a session of parliament in the first week of December at that stage.

But Iím just putting it to you that at that stage the election was not imminent yet, the parties were still negotiating. Can you remember it so, or not?

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.

ADV DE JAGER: Whereís your hometown in fact where you stayed and where your family stayed at that time?

MR XABA: Near Creighton.

ADV DE JAGER: Greytown?

MR XABA: Creighton.

ADV DE JAGER: So you were not canvassing in your own area, you only went to this area, Mount Ayliff, during end of July, beginning August, thereabouts?

MR XABA: I went there because I was escaping from police, so I went there to canvass for ANC.

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.

ADV SIGODI: With respect, Chairperson, I would like to clarify the way I understood it from the applicant. He never said there were, the ballot papers were out ...(intervention)

CHAIRPERSON: He said he had voting papers which he took home and put them away.

MS PATEL: No, sorry Honourable Chairperson, he said pamphlets. He referred to pamphlets, not the actual voting papers.

CHAIRPERSON: Well Iíd like that cleared up.

MS PATEL: Certainly, Honourable Chairperson.

CHAIRPERSON: ...(indistinct) thank you very much. ...(indistinct) move from there.

WITNESS EXCUSED

CHAIRPERSON: Are you calling any other witnesses?

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.

CHAIRPERSON: Yes, Ms Patel I would like you to investigate, or be part of this investigation, so that we have a proper picture of precisely what was happening in August/September.

MS PATEL: Yes I will certainly assist my learned colleague, thank you Mr Chairperson.

CHAIRPERSON: The offence was in fact committed when?

MR WILLS: 3rd of November 1993, Mr Chairperson.

CHAIRPERSON: You will find out when the dates for the election were fixed. ...(indistinct).

ADV DE JAGER: Mr Chairperson I think during November, the first week of November it might have been fixed already.

CHAIRPERSON: Do you have any objection to this matter being postponed?

MR SHAW: Mr Chairman, if itís in the interests of justice, obviously not.

ADV DE JAGER: You think that you will be able to call the witness during this week still?

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: Well, this matter will stand down to be dealt with at a convenient stage during this week.

MS PATEL: Honourable Chairperson, perhaps we should ascertain Mr Shawís availability for the rest of the week.

CHAIRPERSON: Mr Shaw hasnít raised any difficulties about his availability up to now.

MR SHAW: Mr Chairman, I think the witness Gwebani can be contacted through the offices of the Mount Ayliff TLC.

CHAIRPERSON: Every attempt will be made to do that as soon as possible.

MR SHAW: Iím due to be in Umtata from tomorrow for the rest of the week, but if Iím given adequate notification of a day or two I can certainly make it back here.

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.

CHAIRPERSON: So early in August or September he was, Baxter was able to tell people not to make a cross against Mr Mandelaís name but to make a cross against Mr de Klerkís name. ...(indistinct).

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.

CHAIRPERSON: Very well, this matter will stand adjourned and will be mentioned at a convenient time this week and Mr Shaw will be given adequate notice. Thank you very much.

We will adjourn now and resume at ...(indistinct)

COMMITTEE ADJOURNS

ON RESUMPTION

S B DLADLA: AM 3487/96

MS PATEL: The next matter on the roll today is that of S.B. Dladla, application number 3487/96.

MR SAMUELS: I appear on behalf of the applicant Honourable Chairperson. My name is Samuels, first name Sivin.

CHAIRPERSON: Are you calling the applicant?

MR SAMUELS: I do.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speakerís microphone is not activated.

CHAIRPERSON: Will you please stand. Are you prepared to take the oath in this matter, to tell the truth?

S B DLADLA: (sworn states)

CHAIRPERSON: You may sit down. Proceed.

EXAMINATION BY MR SAMUELS: Thank you Honourable Chairperson. Mr Dladla, what is the date of your birth?

MR DLADLA: 1970, March the 3rd.

MR SAMUELS: Where were you born?

MR DLADLA: I was born in Estcourt.

MR SAMUELS: Are you applying for amnesty in relation to the death of Mr Mkhize, is that correct?

MR DLADLA: In relation to the death of Mr Madisela.

MR SAMUELS: I beg your pardon. And when did this death take place?

MR DLADLA: In 1993, in October. Iím not too sure of the day or the date.

MR SAMUELS: Were you sentenced to prison for this offence?

MR DLADLA: Yes.

MR SAMUELS: What sentence did you receive?

MR DLADLA: They gave me, I was sentenced to eight years.

MR SAMUELS: And what was the date of your sentence?

MR DLADLA: That happened in 1994, the month of November.

MR SAMUELS: Were you involved in the killing of the deceased, relating to the case that you got your sentence?

MR DLADLA: Yes, it is so because I am here to apply for amnesty.

MR SAMUELS: Now what political party do you belong to?

MR DLADLA: I am IFP.

MR SAMUELS: How long have you been a member of the IFP?

MR DLADLA: Since my youth days. My parents were IFP members.

MR SAMUELS: Does your father hold any special position in the IFP?

MR DLADLA: Yes, he held position.

MR SAMUELS: What position was this?

MR DLADLA: He was a leader of IFP in Estcourt from, in my speculation I think, he was a leader of IFP in Estcourt in Wembezi.

MR SAMUELS: Estcourt and ?

MR DLADLA: Well this would be a residential area of Estcourt. Thatís where he was based as a leader of IFP.

CHAIRPERSON: How do you spell that?

MR DLADLA: W†E†M†B†B

MR SAMUELS: If I may help, Honourable Chairperson, it was part of his application forms. It mentions Wembezi, W†E†M†B†E†Z†I.

CHAIRPERSON: Thank you, carry on.

MR SAMUELS: Did you hold any special position in the IFP?

MR DLADLA: I was a youth leader of the IFP.

ADV DE JAGER: A leader or an organiser?

INTERPRETER: The speakerís ...

ADV DE JAGER: Were you an organiser or a leader?

MR DLADLA: I was a leader, of the youth league.

MR SAMUELS: Now, were other members of your family also members of the IFP?

MR DLADLA: Yes, thatís correct. I also have with me here some identity ...

INTERPRETER: It looks like a newspaper cutting.

MR SAMUELS: Are you referring to your newspaper cutting which relates to the political guests of your brothers.

DLADLA: Very true.

MR SAMUELS: Would you like to hand that exhibit to the Members of the Committee in the meantime? Is it correct that your brothers died after this incident?

MR DLADLA: Yes thatís correct.

MR SAMUELS: Whilst you were in prison? Whilst you were serving your prison sentence?

MR DLADLA: Yes.

MR SAMUELS: Who is suspected of having killed your brothers?

INTERPRETER: Suspected of having killed who?

MR SAMUELS: His brothers, his late brothers.

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 SAMUELS: Which political party do you suspect of being responsible for our brothersí death?

MR DLADLA: ANC.

MR SAMUELS: Now, letís get to the day in question, when this, the killing, occurred. The killing of the deceased. Where were you heading to on the day in question?

MR DLADLA: We headed for Ulundi to some conference that was taking place there. IFP conference that is, or meeting.

MR SAMUELS: How were you travelling?

MR DLADLA: We were travelling in busses.

MR SAMUELS: And did this bus contain only IFP supporters.

MR DLADLA: Yes, IFP members were in the bus, all of us that is.

MR SAMUELS: Previously when you travelled to IFP meetings and conferences did you experience any difficulty along the way?

MR DLADLA: Quite often we did encounter difficulties. It was usual for us to encounter things like attacks on our ways, or on our way to such meetings or conferences of the organisation.

CHAIRPERSON: Who do you believe was responsible for these attacks?

MR DLADLA: None other but ANC. ...(no English interpretation) they were the ones behind it. ANC.

MR SAMUELS: And why do you believe that the ANC were attacking IFP people on the way to these meetings?

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 SAMUELS: Did you attend any meeting where these attacks were discussed?

MR DLADLA: Yes, I attended such meetings. Each time there would be an IFP meeting Iíd make sure that I am in attendance.

MR SAMUELS: Did the leaders address the question of the attacks on IFP members coming to the meeting? The leaders of the IFP, address this at the meetings?

MR DLADLA: Yes that was discussed or addressed.

MR SAMUELS: What was the advise or directive that the leaders gave to the IFP members?

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 SAMUELS: Now on the day in question, what happened? What made ... I withdraw that question, Honourable Chairperson. Did anything happen that caused concern on the day in question?

MR DLADLA: Yes.

MR SAMUELS: What was that?

MR DLADLA: When we leave as members of the IFP we leave to a meeting we will be attacked spontaneously and unaware.

CHAIRPERSON: No the question is, on the day in question what happened?

MR DLADLA: Please repeat your question.

CHAIRPERSON: On the day of the killing of Mr Madisela, what happened before he was killed?

MR DLADLA: You mean what happened prior to the incident? What do you mean by saying what happened before his death, or before we killed, or he was killed.

INTERPRETER: The speakerís microphone is not activated.

ADV DE JAGER: Did you, wanted to go somewhere? Did you hire a bus? Did somebody do anything to you?

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 SAMUELS: When you say we disembarked from the bus, how many people are you referring to?

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 SAMUELS: Were these all males who got off the bus?

MR DLADLA: Very true.

CHAIRPERSON: Where did you go to when you got out of the bus?

MR DLADLA: We instantly attacked the car that was approaching.

MR SAMUELS: Now in this bus, were there only males, or were there women and children as well?

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speakerís microphone is not on.

CHAIRPERSON: Take that picture to itís logical conclusion before you go back to say now who was in the bus. Alright?

MR SAMUELS: Thank you Honourable Chairperson.

CHAIRPERSON: Now, you attacked the car that was approaching?

INTERPRETER: The speakerís microphone is not activated.

CHAIRPERSON: Was the car stationary when you got to it?

MR DLADLA: No it was not stationary when we got to it. It was moving, but slow, trying to take a U-turn.

CHAIRPERSON: Who was in the car?

MR DLADLA: As he was trying to take a U-turn he kept shooting. He got off the car, the person Iím referring to who was in the car, got off the car and tried to escape.

ADV SIGODI: Sorry Miss Interpreter, I donít think I understood it that way. Letís get some clarity here. You say that this car was approaching and it was moving in a slow motion?

MR DLADLA: Yes.

ADV SIGODI: It was trying to make a U-turn?

DLADLA: Yes.

ADV SIGODI: Then I would imagine that there was another person who was outside the car, did I hear you correctly?

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 SAMUELS: The question I asked is how many people were in the car?

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 SAMUELS: So you told us the other one was already outside. Was there someone inside the car?

MR DLADLA: Yes, the deceased was in the car.

MR SAMUELS: Where was he seated?

MR DLADLA: He was seated on the driverís side.

MR SAMUELS: When you attacked this car, did the deceased try to do anything?

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 DE JAGER: Did you get hold of the driver while the car was making the U-turn?

MR DLADLA: Yes.

ADV DE JAGER: Who got hold of him? You yourself or one of your companions?

INTERPRETER: Please repeat your question.

ADV DE JAGER: Who got hold of the driver? Was it the applicant or was it one of his companions or more of his companions?

MR DLADLA: By the time I got there he was, they had already gotten hold of him by the time I reached the point because I was behind in the bus so I was not one of the first ones who got off the bus.

ADV DE JAGER: Did they drive him out of the car or did he remain sitting in the car?

MR DLADLA: By the time I got there he was already outside and the door of the car was wide open.

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 DLADLA: When I got there they were already dragging him outside and the door was opened.

MR SAMUELS: Now when you say they were dragging him are you referring to the people who were in the bus with you?

MR DLADLA: We were many, and we, I have about, I have another co-accused in this case and other were released or discharged, and ...(intervention)

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: Yes.

MR SAMUELS: Besides dragging him, did you see anyone assaulting the deceased?

MR DLADLA: Yes they were assault, by the time I got there they were assaulting him.

MR SAMUELS: Who did you see assaulting the deceased, and how did you see them assaulting the deceased?

MR DLADLA: Since ...(indistinct) name, and I have other co-accused, I saw the co-accused.

MR SAMUELS: What was his name?

MR DLADLA: Masoga Ndaba.

MR SAMUELS: Now what did he do?

MR DLADLA: They were assaulting him and I also contributed with the weapon I had in my possession.

CHAIRPERSON: Alright, just letís clear it up. When you came there they were dragging him out and they were assaulting him?

MR DLADLA: Yes.

CHAIRPERSON: How were they assaulting him?

MR DLADLA: Yes they were stabbing him with the weapons they had in their possession, and when I arrived thatís what was happening and I joined them in assaulting him.

CHAIRPERSON: What were they stabbing him with?

MR DLADLA: They were assaulting him with spears. We had spears in our possession. We had spears and sticks in our possession, itís traditional weapons maybe, so to speak.

CHAIRPERSON: And what weapon did you have?

MR DLADLA: I had a stick and a spear.

CHAIRPERSON: And what happened when you assaulted him, all of you?

MR DLADLA: When I got there they were assaulting him and I joined them and I sustained injury on my right arm,

INTERPRETER: As he is demonstrating, the applicant that is. He is pointing.

CHAIRPERSON: Show me.

MR DLADLA: And I was injured by one of the police here.

CHAIRPERSON: Hold it. You sustained an injury to your right arm, and just below the left collarbone?

MR DLADLA: Yes. By ...(indistinct)

CHAIRPERSON: How did you get hurt?

MR DLADLA: The way the whole thing was ungovernable. Thatís how I sustained this injury and by mistake one of my colleagues turned around and I was the one who became the victim of that ...

CHAIRPERSON: You were injured by one or other of your colleagues?

MR DLADLA: Yes, thatís true.

CHAIRPERSON: What happened to the deceased?

MR DLADLA: I saw the deceased lying down.

CHAIRPERSON: And when he was lying down on the ground was anything being done to him?

MR DLADLA: No, immediately after I sustained this injury I went back to the bus.

CHAIRPERSON: My question is not what you did. My question was, was anything done to the deceased when he was lying on the ground?

MR DLADLA: No, not that I saw.

CHAIRPERSON: Was the deceased bleeding?

MR DLADLA: After I sustained this injury I never took notice of anything which was going on, I immediately went back to the bus so that I would not be in a position to say yes or no he was bleeding.

CHAIRPERSON: And what happened after you got back to the bus?

MR DLADLA: The bus was still there where it was parked. I got inside and slept. One of my colleagues helped me dress the wound.

CHAIRPERSON: Yes, carry on.

MR SAMUELS: You told us that you attacked the deceased with a, did you say you attacked him with a spear?

MR DLADLA: Yes.

MR SAMUELS: How did you attack him with the spear, and whereabouts on his body did you attack him with the spear?

MR DLADLA: I stabbed him once to the chest and immediately I sustained an injury then I took a right about turn and went back to the bus.

MR SAMUELS: Now, the other person whom you say was outside the car, what happened to him?

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.

CHAIRPERSON: So what happened to the female that was there?

MR DLADLA: She fled, into some houses nearby. Then we let go of her. I was already in the bus when all of that was happening.

MR SAMUELS: Now let me take you back a little. You say in this bus, well you didnít tell us, were there only men in this bus or were there men, women and children?

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 SAMUELS: Now when you heard this gunfire, what did you expect was going to happen?

MR DLADLA: When we heard the gunshot it went without saying it was that we were being attacked and we have to rise and do something.

CHAIRPERSON: Do you know where the gunshots came from?

MR DLADLA: It was very loud for starters, and the way I perceived this whole thing it was in such a way that this gunshot was emanating from the car, the approaching car, and thus we attacked.

MR SAMUELS: You said something about the lights of this motor vehicle that was approaching. Can you repeat that for us?

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 SAMUELS: What political objective were you trying to achieve by attacking the people in the car?

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: The family of the deceased are here. Do you want to say anything to them about your actions?

MR DLADLA: Yes.

CHAIRPERSON: Yes, what is it you want to say?

MR DLADLA: I would like to apologise for the action that I executed ...

INTERPRETER: The interpreter could barely hear the applicant as he was talking.

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.

CHAIRPERSON: Did you know the deceased?

MR DLADLA: Yes, I knew him. Itís only because it was dark at night that day, and we were many, I was with my colleagues or my friends.

CHAIRPERSON: What did you know about the deceased?

MR DLADLA: I know the brother, or the elder brother, to the deceased, and I heard he was working at Convoy.

CHAIRPERSON: Had you had any personal argument with the deceased on any occasion in the past?

MR DLADLA: Not at all. I will say this merely happened because it was dark at night and I couldnít see as to who we were fighting against.

CHAIRPERSON: And was a gun found in the car?

MR DLADLA: That I did not see.

CHAIRPERSON: Did you hear whether a gun had been found?

MR DLADLA: No, I never heard that.

CHAIRPERSON: Is it possible that the sound that you heard which sounded like a gun was a sound that could have been made by the exhaust of the motor car?

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.

CHAIRPERSON: Ms Patel?

CROSS-EXAMINATION BY MS PATEL: Mr Dladla, youíve stated that you know the elder brother of the deceased.

MR DLADLA: Yes.

MS PATEL: Did you know any other, did you have any other personal information about the deceased during that time?

MR DLADLA: No.

MS PATEL: Do you know whether the brother is an IFP or an ANC member?

MR DLADLA: Even Ďthough I did not know as to which organisation he belonged I knew one thing about him, that he was a station commander of Estcourt.

MS PATEL: Why did you state in your application, if you didnít know anything about the deceased, that the victim was a leader of the ANC organisation?

For the record, Honourable Chairperson, page 2, paragraph 9(c)(4).

Where did you get this information from?

ADV DE JAGER: How did you know he was an ANC member, or didnít you know?

MR DLADLA: The lady who came, or the woman who came to the Court, she belonged to ANC, in Zwelitsha.

MS PATEL: Iím sorry, many females testified at the hearing. Which lady are you referring to now?

MR DLADLA: I am referring to the one who was in the car at the time of this incident.

ADV DE JAGER: Whatís her name?

MR DLADLA: I forget her name, this happened long time ago. I have forgotten many people and their names thereof. I know her facially though.

MS PATEL: And you saying that she testified to the fact that she was an ANC member?

MR DLADLA: Yes.

CHAIRPERSON: Did she say that in Court.

MR DLADLA: Yes, she said that in Court.

MS PATEL: The Judge in his judgment has made no reference as to the political affiliation of the woman who you referred to. Her name is Nomatemba Khumalo

MR DLADLA: Yes.

MS PATEL: In fact, all that she testified to was that she had gotten a lift from the accused, I beg your pardon, from the deceased, on that day.

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)

CHAIRPERSON: ...(indistinct) Magistrateís summary, yes. So it would be incorrect to say that all that she testified to was ...(intervention)

CHAIRPERSON: According to the Magistrateís Judgment?

MR SAMUELS: Yes, that is correct Honourable Chairperson.

MS PATEL: Thank you Honourable Chairperson.

CHAIRPERSON: Yes, what did the Magistrate ...(indistinct)

INTERPRETER: The speakerís microphone is not activated.

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.

ADV DE JAGER: Youíre referring to page?

MS PATEL: Sorry, eleven of the index bundle Honourable Chairperson. Itís paragraph two of the bundle. And she also mentions that the car wouldnít start at the time that she had walked away.

MR DLADLA: The car was not stopped.

MS PATEL: No, wouldnít start.

CHAIRPERSON: Wouldnít start?

MS PATEL: Yes.

CHAIRPERSON: Yes, what do you want to make of this?

MR DLADLA: I have no comment, I will finish with regards to this, but we know her to be ANC member in the area. Itís well-known that sheís a member of the ANC organisation.

MS PATEL: How do you know that?

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.

MS PATEL: So itísís not because she said it at the trial that she was an ANC member but itís because you know this because she never attended IFP meetings. Is that your version now?

MR DLADLA: Yes.

MS PATEL: Alright, there were people in the area Ďthough who werenít politically affiliated, who were neither IFP nor ANC, not s?

MR DLADLA: Please repeat.

MS PATEL: Itís possible that there were people in the area who were not members of either the IFP or the ANC, not so?

MR DLADLA: Yes, that is so. The majority of, in fact there were two organisations in Zwelitsha, ANC and IFP. And there will be such people that we knew belonged neither to IFP or ANC.

MS PATEL: So it is possible that the woman who walked away, who got the lift, Nomatemba Khumalo, wasnít either IFP or ANC?

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.

MS PATEL: ... to the point.

CHAIRPERSON: What do you know about the deceased?

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

ADV SIGODI: Then can it not be argued that the other people who got to him first must have known him?

MR DLADLA: No, that much I wouldnít know.

ADV SIGODI: Were the other attackers people from Wembezi?

MR DLADLA: I was the only one from Wembezi and the rest of the other people were coming from Zwelitsha, because everything that happened occurred there.

MS PATEL: Your brother was one of the co-accused in this matter as well. Was he also not from the same area as you?

MR DLADLA: Please repeat your question.

MS PATEL: Your brother. You claim that you were the only person of the group that was from Wembezi. Your brother was one of the co-accused in this matter as well. Is he not from the same area as you?

MR DLADLA: My brother was not even there. He only became part of this case because he was with the youth during the day in Zwelitsha, my younger brother that is.

MS PATEL: Are you saying that your brother is not from Wembezi?

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.

ADV SIGODI: In other words you are saying that he was a mere suspect?

MR DLADLA: Yes. Because those people living near Sgt. Mabaso disliked us because he did not like our group, so to speak.

MS PATEL: Was your brother not convicted for this offence?

MR DLADLA: Yes, he was convicted, and that was a mistake. He never took part in this incident, he was very young, he was not even active in such acts.

MS PATEL: You stated that if you had got to the deceased first you would have realised that this is a person that you know.

MR DLADLA: Yes.

MS PATEL: But youíve admitted that you stabbed him once at least, so you must have been close enough to him to see who he was?

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.

MS PATEL: But you were close enough to see him, not so?

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.

MS PATEL: Which part of the body did you stab him on?

MR DLADLA: He was already lying like this, or in this position, and I stabbed him on the right hand side to the chest.

ADV DE JAGER: So he was lying on the ground at this stage.

MR DLADLA: No, they were still holding him, and just before he lied down on the grass.

ADV DE JAGER: The interpretation came through that he was already lying when I stabbed him. He was lying when I stabbed him. Was that a mistake of the interpreter, or did you say he was lying?

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.

ADV DE JAGER: Why would you have stopped the attack if youíd been in the front? Because you knew the man?

MR DLADLA: Yes, I would have stopped the attack if I arrived there first.

ADV DE JAGER: But why, this car was shooting at you, or the man in the car was shooting at you?

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.

CHAIRPERSON: Thatís not the answer to the question. You say that you heard a gunshot coming from the car, and your friends and you rushed and attacked the car and the man in the car.

MR DLADLA: Yes, thatís so.

CHAIRPERSON: You say that if you were there ahead of your friends you would have prevented the attack on him. Is that right?

MR DLADLA: Yes, I would have prevented the attack.

CHAIRPERSON: If you had recognised who it was?

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.

CHAIRPERSON: Sir my colleague here wanted to know from you why would you have stopped your friends from assaulting this person, if this person, according to you, had fired ...(intervention)

MR DLADLA: Because Iím the youth leader. I had the prerogative of doing that because I was the youth leader, but I delayed another thing.

ADV DE JAGER: Wait for the question, when the Chairperson repeated my question. This man was shooting at you, why wouldnít you kill him if heís shooting at you?

CHAIRPERSON: At the bus, at your people, not you.

MR DLADLA: We heard this gunshot. As we heard this gunshot, we attacked subsequently. If he was shooting as well ...(intervention)

INTERPRETER: There is something wrong. It keeps cutting, the system that is, we cannot hear the speaker. We cannot hear him perfectly.

CHAIRPERSON: Can something be done to put that mike right because the interpreters canít hear him.

Yes, proceed please.

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.

MS PATEL: The question still is, why would you have wanted to prevent the attack?

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.

CHAIRPERSON: We hear you are the leader and you could have stopped it, but the question that is being put to you is, why would you have stopped the attack on him?

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)

CHAIRPERSON: Yes, alright, weíve got that. You donít have to repeat all that again. Proceed please.

ADV SIGODI: What difference would your knowing him have made, if you thought that he was shooting you?

MR DLADLA: Could you please repeat your question?

ADV SIGODI: The question is, you say that if you had got there first you would have prevented the attack on him, is that correct?

MR DLADLA: Yes, that is correct.

ADV SIGODI: And the reason why you would prevent the attack is because you would have found somebody that you knew?

MR DLADLA: Yes.

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.

INTERPRETER: We can barely hear the applicant. Itís not about the mike, he keeps cutting each time he talks.

ADV SIGODI: So you are saying you were not sure where these gunshots were coming from.?

MR DLADLA: Yes, I was not sure as to where it was coming from, but the way it sounded it was so loud to an extent that we did, we realised we are being attacked.

ADV SIGODI: In other words, the deceased was attacked by people who were not even sure that he had fired at them?

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.

ADV DE JAGER: Didnít you attack the wrong person?

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.

ADV SIGODI: Did you say that the gunshot sounded very loud and very close?

MR DLADLA: There were rocks nearby and that was where the bus would be driving next. In other words, next to the road there were rocks, and thatís when, thatís where this thing happened.

ADV SIGODI: What Iím saying is that the gunshot sounded very close to the bus, didnít it?

MR DLADLA: Yes, it sounded very close.

ADV SIGODI: Was the bus ever hit by any bullets?

MR DLADLA: No, not at all.

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 know very well, or I knew very well. I was disappointed upon finding out the information that I found out after the arrest.

MS PATEL: And in fact, my instructions are that the deceased was an IFP member.

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 a leader, would the reasonable thing not have been to get everybody at least to try and first speak to

INTERPRETER: Please repeat your question.

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: How many gunshots did you hear?

MR DLADLA: I think twice I heard the gunshot.

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.

ADV SIGODI: Do you know if any cartridges were found in that area

MR DLADLA: No I never heard anything to that effect. We only gathered more information after the arrest.

ADV DE JAGER: Didnít your friends push this car into a donga after the attack?

MR DLADLA: Please repeat that question.

ADV DE JAGER: Did your friends push the car into a donga after the attack?

MR DLADLA: That much I donít know because I was already in the bus.

ADV DE JAGER: But canít you see from the bus?

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.

ADV DE JAGER: And where did you leave the corpse?

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.

ADV DE JAGER: And what happened to this manís gun then? If he had one. He was shooting from, you believed he was shooting from the car. What happened to the gun?

MR DLADLA: I did not see any gun.

ADV DE JAGER: Werenít you people interested to see whether he had a gun?

MR DLADLA: I would not have been able to do that, to search as to whether he had a gun or not, because we were in a rush. We were rushing for a meeting in Ulundi.

ADV DE JAGER: While you were rushing, you rushing towards a man armed with a gun, werenít you afraid he would kill you? Heís shooting at you.

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: When you got to him he was being held by your colleagues, he was being attacked. You saw no gun in his hand?

MR DLADLA: No I did not see any gun.

CHAIRPERSON: And you heard nothing from any of your colleagues that a gun was picked up?

MR DLADLA: No, the next thing that followed since the incident was the arrest, and the police took my jacket and confiscated it and he took it. I did not know why he was doing what he did.

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?

MR DLADLA: Yes, I didnít recognise him at the time.

CHAIRPERSON: Yes alright, I withdraw my question.

MS PATEL: If I understand you correctly, what sparked this entire incident off was the gunshots that you heard. Is that correct?

MR DLADLA: Yes thatís correct.

MS PATEL: And you acted in order to protect the IFP supporters that were on the bus?

MR DLADLA: Yes thatís right.

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: And thereby protecting parties around the bus, Honourable Chairperson.

CHAIRPERSON: And preventing further attack.

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: That is not true. There was a gunshot that was heard.

CHAIRPERSON: The witnesses at the trial, they said that there was no gunshot.

INTERPRETER: The speakerís microphone is not activated.

CHAIRPERSON: At the trial no witness said that there was a gunshot. Is that correct?

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.

CHAIRPERSON: Yes, did anybody in Court, did anybody in the Court say that there was a gunshot that went off?

MR DLADLA: No-one mentioned that in Court.

ADV DE JAGER: You yourself gave evidence in Court.

MR DLADLA: ...(no English interpretation)

ADV DE JAGER: Didnít you give evidence?

MR DLADLA: No, I didnít.

ADV DE JAGER: Werenít you accused number three?

MR DLADLA: Yes I am accused number three.

ADV DE JAGER: Now the Magistrate says that accused number three testified that he is living at Loskop, and that he had only heard about this offence after his arrest.

MR DLADLA: (no English interpretation)

ADV DE JAGER: To summarize, you were in hospital and you donít know anything about this thing.

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.

CHAIRPERSON: ...(indistinct)

MR SAMUELS: That is correct, Honourable Chairperson.

MS PATEL: If you look at page 17 of the Judgment, second-last paragraph it states there that the accused closed his case and didnít call any witnesses.

ADV DE JAGER: Yes that was on page 8, Iím quoting from page 8, but never mind.

INTERPRETER: The speakerís microphone is not activated.

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: Please repeat your question that you are posing to me.

ADV DE JAGER: The Court, at the start of the case, you told the Magistrate that you werenít there at all.

MR DLADLA: Yes, I did tell the Court that.

ADV DE JAGER: Was that true or not?

MR DLADLA: That I told the Court?

ADV DE JAGER: Yes.

MR DLADLA: Itís ... Iím getting a bit confused here. Can you please repeat once again.

ADV DE JAGER: I think that I put it to you like this, you said this in Court, but it wasnít the truth. Is that what youíre trying to tell us.

MR DLADLA: Yes, now I am putting everything to the surface, the truth that is.

CHAIRPERSON: ...(indistinct)

MS PATEL: Thank you, no, almost. I wonít be much longer thank you, Honourable Chairperson.

Iím sorry, if I can just take you back, the question of the gunshots, youíve confirmed that nobody at the trial testified that there were gunshots, no so?

MR DLADLA: Yes.

MS PATEL: And thatís because in fact there were no gunshots, not so?

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?

MR DLADLA: Yes, that is true.

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: Yes.

CHAIRPERSON: If there was a gun it would have been found. No gun was found. No evidence was given at Court that a gun was found. Is that right?

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.

MS PATEL: But thatís the point. You didnít look around. Your group went straight to the car. Not so?

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: Yes, you heard me correct.

ADV SIGODI: When were you ever attacked before this incident?

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.

ADV SIGODI: If you can try and shorten your answers. How were you attacked on the other previous occasions?

MR DLADLA: We were in a taxi coming from

ADV SIGODI: I just want to know were you shot at, or where you stabbed with spears, or what? I donít want to get the whole details.

MR DLADLA: We were shot at.

ADV SIGODI: How many occasions were you shot at? How many times?

MR DLADLA: Many times.

ADV SIGODI: More than five times? On more than five occasions?

MR DLADLA: In one day we were attacked about five or six times as the car was passing.

CHAIRPERSON: Yes

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?

MR DLADLA: I dispute all of that.

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.

MR DLADLA: I did hear that in Court, but I donít remember anything of the sort being mentioned in the bus.

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: Because in fact you were still busy with the deceased. You were helping them to push the vehicle into the donga. Not so? That is why you didnít hear what Jabulani Mkhize said.

MR DLADLA: I did not remain behind. I left immediately. I went back to the bus. Anyway the Court of Law I did make mention of the fact. I did not do any of the things you say I did.

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.

ADV DE JAGER: Did you get any stitches on that wound?

MR DLADLA: Yes, in Ulundi.

MS PATEL: Finally, was there no other way besides killing the deceased, to prevent further attacks on yourselves that evening?

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: And finally just, thereís one aspect that I forgot to clear up. The newspaper clipping that youíve tendered here at the hearing, relates to your brother being killed. Is that correct?

MR DLADLA: Yes.

MS PATEL: Was it before or after this incident.

MR DLADLA: After the incident. After I was arrested. I was already in prison.

MS PATEL: So it in fact has no bearing on your state of mind at the time, not so?

INTERPRETER: Please repeat your question.

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: Iím getting a bit confused. I donít understand the question being posed to me.

ADV DE JAGER: When was your brother killed? Can you give her the date?

MR DLADLA: I heard in 1995, October.

ADV DE JAGER: Three of them were killed, hey. Your three brothers were 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.

ADV DE JAGER: No, the only think I wanted to know was, only one of your brothers was killed, or were three of them killed?

MR DLADLA: Three brothers. The eldest

ADV DE JAGER: That was long after this incident?

MR DLADLA: Yes.

ADV DE JAGER: More than two years after the incident?

MR DLADLA: I think after a year.

CHAIRPERSON: I want you to have a look at page 6 of your application. Please have a look - does he have a copy of the papers before him?

INTERPRETER: He is requesting for a copy of his application.

CHAIRPERSON: Is that not him?

MR SAMUELS: I think that refers to the co-applicant, who has withdrawn his application.

CHAIRPERSON: At further questions?

MS PATEL: No thank you Honourable Chairperson.

CHAIRPERSON: At re-examination?

MR SAMUELS: No re-examination Honourable Chairperson.

CHAIRPERSON: ...(indistinct) call anybody else?

MR SAMUELS: No, Honourable Chairperson.

CHAIRPERSON: ...(indistinct)

MS PATEL: No, I have no witnesses thank you Honourable Chairperson.

ADV DE JAGER: ...(indistinct) the father of the deceased, or the widow, or somebody?

MS PATEL: The widow is present, as is the deceasedís brother. If you wish me to call him Iím not, whether I should motivate why I havenít?

CHAIRPERSON: ...(indistinct)

MR SAMUELS: Yes I do, Honourable Chairperson, but I think the applicant should be here present when I do address, I think he walked out.

CHAIRPERSON: He doesnít have to be present.

MR SAMUELS: Just for the sake of continuity and hearing all proceedings against him.

CHAIRPERSON: Has he been taken away?

MR SAMUELS: Iím not sure. Iím trying to draw his attention now.

CHAIRPERSON: Bring the applicant back into the hall please. ...(indistinct)

MR SAMUELS: Yes, I think he needed to walk out.

ADV DE JAGER: Heís still in custody, isnít he?

CHAIRPERSON: Let him be seated please.

MR SAMUELS: May I proceed now?

CHAIRPERSON: Yes.

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.

CHAIRPERSON: He was their leader. Would they not have told him, Ďthereís the gun that fired at usí?

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.

CHAIRPERSON: Itís possible that there was no gun as well.

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.

ADV DE JAGER: They didnít know whether he belonged to an opposition party. It could have been an innocent person driving up, parking, and switching off the lights.

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.

ADV DE JAGER: In his application

"My victim is a leader of the ANC organisation."

Page two.

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.

CHAIRPERSON: Where does it appear in his application form that he says the deceased was a member of the ANC?

MS PATEL: Itís on page 2

ADV DE JAGER: Page 2, paragraph 9.

INTERPRETER: Please activate the microphone.

MS PATEL: Okay, itís Page, for the record, page 2, paragraph 9(c)(4). Thank you Honourable Chairperson.

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.

ADV SIGODI: However, this lady, he only saw her at the trial. He did not see her at the time of the attack. She was not a victim. So who could he have possibly been referring to?

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.

ADV SIGODI: Yes, but what he is applying for here is, I think itís murder.

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

ADV DE JAGER: It might be that he didnít fill in the form because I see he didnít sign the form, it was marked with a cross. So I donít know whether he could write. We didnít canvass that, but ...

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.

CHAIRPERSON: They appear to be in a state of frenzy.

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: I concede Honourable Chairperson, in retrospect, and in retrospect in these times, you know one cannot understand the actions of these youths.

CHAIRPERSON: The question is you see whether their action was totally disproportionate to whatever provocation there might have been. Disproportionate to what their goal and objective was.

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.

CHAIRPERSON: Thank you very much. The committee will take its time and consider this matter and make itís decision known when it is ready to do so.

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 ...

MR SAMUELS: Thank you Honourable Member, I think maybe the applicant can uplift that.

CHAIRPERSON: The committee will adjourn until 09H30 tomorrow morning.

COMMITTEE ADJOURNS

 
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