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Type AMNESTY HEARINGS
Starting Date 03 August 1999
Names HUMPHREY PHAKADE MAGWAZA
Case Number AM6613/97
Matter MURDER OF M KHANYILE
CHAIRPERSON: Now the Committee is the same as yesterday, I don't think it necessary for the Committee members to put themselves on record but if the - and so is the evidence leader is it? But if the other legal representatives could please give their names and say something so the recording machine can recognise the voice? Not the recording machine, the people who have to operate it later.
MR MAPOMA: Mr Chairperson, I'm sorry to interject. Before we proceed, I think I must place on record this important fact that the next-of-kin of one of the deceased persons for whose death amnesty is being sought, that is Mkikwama Khanyile, have been traced by Mr Mbata who is our investigator and upon serving a notice to them, they refuse to accept the notice and they said they are not interested in the matter. Thank you.
MR MOLOHLANYE: Thank you Chairperson, if I may proceed? I request Mr Humphrey Magwaza for the record, Chairperson, to go through Exhibit A which is the first affidavit for the killing of Mr Mkikwama Khanyile.
(i) In 1981 I was a member of Masiboni Lamontville Youth Organisation, abbreviated as Malayo, and a Joint Rent Action Committee known as Jorac. These organisations were affiliated to UDF and my position within the first organisation was a youth organiser. On the 25th April 1998, a community leader by the name of Mzizi Dube was assassinated."
"The community leader by the name of Mzizi Dube was assassinated. He was on the front of the struggle against rent increases. On the day of Mzizi Dube's funeral, there were a lot of people at Lamontville Hall to pay their last respects to the leader and these people were very angry. At the same funeral there was one Mkikwana Khanyile who was known to be an informer. He was standing approximately 50 metres away from the main entrance of the hall. I approached him and advised him to leave to leave "impimbi" as we didn't want any government puppet there. As I was talking to him people started to come nearer and he got scared and started running away. He ran towards Ebony Shopping Centre and a group of about 500 people were chasing him. I was also among that group. He then turned towards Roadfall, he was caught in Roadfall but when I arrived at the scene he was already dead. I wish to state that I did not participate in such killing but would like to say that I was responsible because I was the one who provoked the situation. This is all I know about the killing of Mkikwana Khanyile"
MR MAGWAZA: If maybe I may estimate, people who were there were more than fifteen thousand who congregated in the hall. Those fifteen thousand people, I count those who were inside and those who were outside the hall.
MR MOLOHLANYE: Thank you. My second question would be in regards when you saw Mr Mkikwana Khanyile standing outside the hall you approached him. Were you talking loud, were you shouting when you approached him, advising him to leave?
MR MAGWAZA: When I approached him, I approached because there were other people who were pointing towards that direction. I went to him and I approached him. The way I approached him I was not shouting, I was talking with him and I asked him to leave.
MR MOLOHLANYE: Thank you. So you said after that he went -he started running towards Roadfall and then when you arrived there he was already dead. Can you estimate how long did this killing take place?
MR MAGWAZA: The whole thing actually is that it took a split of a second. If I say a split of a second I'm not talking about second per se, it just happened so quickly, that by the time I went there he was already dead.
"I, the undersigned, Humphrey Phakade Magwaza, do hereby make an oath and say on the 24th May 1983, I was standing at a bus stop waiting for the taxi to town. I was on my way to the Upstairs Theatre, Mariasals, of a play "Asinamani". I was carrying my rugsack and inside there was acid and clothing. The acid was going to be used to clean paint on the stage. Whilst waiting at a rank I was approached by a mini-bus and inside this mini-bus was Baba Sibaya, Ricky Moleko, Mkwanazi, Reg Nsomi and Dolon Thembo. I was informed that Mr Mtimkulu and Cele were killed by a group which was known as Mashaulin over the weekend. Mashaulin gang were known at Lamontville. This was a gang of notorious criminals in the area. Mashaulin gang was used by the councillors to attack political active members of the community and to destabilise the community. I was very angry when I heard the news, then I was asked to come into the Kombi so that we could go to ...(indistinct) place to comfort his family. When we arrived at his house it was quiet with signs that there was no one inside. In the kombi we were all very angry and we decided to go and attack the Mashaulin or the leader whose name was Sash Dombelo. We entered his house where we found him taking a shower in the bathroom. When he heard that we were in the house, he came out carrying a garden spade and a shower towel in one hand. He forced his way out of the house using the garden spade and he was stabbed in the back in that process. He managed to leave the house and ran away. We pursued him with others, throwing stones at him and others hacking him with tomahawks. We then left him sitting on a storm water drain but decided to return with the motive of finishing him or killing him. When we approached him he started running towards Kwala Street when he was caught. He ran into Mpanga's house where he was caught. He was hacked, hit and stabbed. When I was running after him, I took out the acid in my bag. After he was caught the acid was poured on him by Baba Sibaya. I took part in the stoning of the deceased while he was lying on the ground. He left lying and a group of people went around the township singing freedom songs, there were celebrations in the township. I then left for Mariasals at Upstairs Theatre. After his death, criminal activities and killing subsided in Lamontville. I was sentenced to eight years for this offence."
MR MOLOHLANYE: Thank you Mr Magwaza. Through you, Chairperson, Mr Magwaza, I have a few questions to ask in relation to this affidavit. Do we understand that there was a murder of two people, that is Mtimkulu and Cele. Who were these people?
MR MAGWAZA: Mtimkulu, he was a carpenter in the township. However, he started to be active within the Joint Rent Action Committee at the time. Cele was one of the people who was involved and who was instrumental in the building up of Malayo, Masiboni Sale Lamontville Youth Organisation.
MR MOLOHLANYE: So you say then you left the mini-bus, you went to Cele's place and when you arrived there it was quiet, with signs that there was no one inside. Why and how in that Kolani Cele was dead and no one at his place?
MR MAGWAZA: Later we understood that the people there were worried and scared that the gang may come back to their house and start attacking them. I later understood that they sought refuge somewhere else.
MR MAGWAZA: One thing actually that used to happen at that time, our understanding was that to kill Sash was going to help us or the gangs not to carry on destabilising and attacking the activists within the township.
MR MOLOHLANYE: My question is not answered yet, Mr Magwaza, my question was you say Mr Cele was murdered and you the others mention in your affidavit in the mini-bus went to the Mr Cele's place and when you arrived there it was quiet and signs that there was no one inside, my question is why were the family or Cele family were not in the house at the time? Can you give us a reason for that?
MR MAGWAZA: Before the gang was in the township what they were doing it was just like any other gang that ...(indistinct) within township. However, what happened is that we have ...(indistinct) member or what are called ...(indistinct) councils. Our belief was that they were used by the Milisimo Committee Councillors who was at the end of the day the ones who were against this organisation Joint Rent Action Committee, Jorac.
ADV DE JAGER: Were they used in a political sense to eliminate political opponents or weren't they used in a political sense to enhance or to disadvantage for instance the ANC and advance the councillors case or actually what role did they play?
MR MAGWAZA: What actually was happening at the time was that the people of this Mashaulin gang were used by the councillors themselves to further their political motive by using the gangs rather than using themselves or by being themselves who would do the deeds, so then the gangs were the ones who were used as a forefront for the councillors in destabilising and attacking and killing people in the township.
MR MAGWAZA: Their political object was a simple one, in a sense that they were to benefit from the rent increase. Their benefit as I understand was one of having free rent by then and other things they would benefit from the rent increase and by being with the government of the day or the administration of the day which was called NPB, I can't even remember the name of the - what the initials mean, I can't remember now. Natal Bantu Administration, something like that, I can't remember.
MR MAGWAZA: The organisation that I was with at that time was called Masibonisani Lamontville Youth Organisation which later affiliated with Jorac, Joint Rent Association Committee of which itself at a later stage of 1983 towards August they then affiliated to United Democratic Front, UDF.
MR MAGWAZA: The objectives were quite simple. It was actually to organise the youth that was all over the township doing nothing and secondly the objective was to give them political organisation of which actually as a youth organiser I was mainly dealing with the part of theatre of which theatre at that time, we were using it as a tool to highlight the problems and issues that effect the youth as well as the community at that time.
MR MAGWAZA: If maybe I can put clear before the Commission, the Asinamali as a slogan was the one that people within Lamontville were rallying around as Asinamali to pay rent and bus far increases of which then I took as a part or as a slogan that could be used for a production that will then encompass all what people had been talking about so that it could be a tool that would highlight all these things within other communities surrounding our township in the greater Durban area.
MR MAGWAZA: That's quite correct, the ANC was a banned political party at that time but we did actually within our organisation happen to get different materials that we used to distribute, Laxijaba, Maybuye, Social Review and other material.
ADV DE JAGER: Yes, the only thing I want to know is, your organisation although not affiliated at that stage to the UDF or the ANC but your organisation was actually supporting the politics of the ANC or the well the UDF didn't exist at the time?
MR MAGWAZA: Yes, the organisation at the time was actually supporting and being sympathetic and at the same time trying to further the aims of the organisation even though it was not a direct, if I'm saying direct, by being out, by being ANC but using other means. As I was talking earlier on about material or information that was distributed from the ANC.
CROSS-EXAMINATION BY MR MAPOMA: Mr Magwaza, regarding the murder of Mkikwana Khanyile, you have testified that you are the person who provoked the situation by identifying him as an Impimpi? Why did you say he was an Impimpi?
MR MAGWAZA: What actually I could say is that it was established within the township no matter if I could say from grapevines but it was established and it was known to us that he was an Impimpi or a collaborator with the then apartheid government.
MR MAGWAZA: I remember one incident even though I cannot clearly remember because at that time I was still at high school, there was a guy from Gauteng that he made it easier for him to be arrested within the school and then testified against him but I cannot say for me that was a tangible evidence that I can put forward because I was not involved in the case as such.
MR MAGWAZA: It was a politically related trial because this student or this guy I'm talking about, he had just come back from Gauteng, I think he was from Soweto and he came down running away from the 1976 uprisings to come and further his education down here in Durban and if I still remember vividly, he was staying in Chesterville where the deceased was staying as well.
MR MAPOMA: Now you as Malayo, I take it that you must have investigated the allegations regarding somebody who has been identified as an Impipi. Did you investigate the allegations against Khanyile at all?
MR MAGWAZA: I am at the moment talking about way back '70s, '80s whereby then maybe I will be about 20 something, I don't actually think that within the organisation who will have actually gone as far as that extent of saying we want to go find records and find a clear evidence that you could put forward and say this is it. However, from the person whom the trial was going for had actually indicated clearly that it was so.
MR MAPOMA: Now apart from the trial, I'm saying during the time that you killed him, you identified him as an Impimpi, what I'm asking is did you have any tangible information on the basis of which you could in a crowd label this person as Impimpi?
MR MAGWAZA: I just want to say something. Yes maybe within the Commission people may look in saying he may have been wrongly judged. However, one has actually to understand how volatile the situation was in the township. One at the same time has to understand that there was turmoil and one may not say it's from anger but actually there was anger but at the same time when he was approached, the approach was not to my understanding to say he needs to be killed on the spot. It was for him to leave the area and leave people carrying on with what they were doing. However, the situation got out of proportion as I said in my affidavit that people had started to come forward and he started running, that's when the whole thing happened.
MR MAGWAZA: They were people who were residents in the township. Most of them were part of a youth organisation, Malayo, but these people were not actually directly involved in the organisation's activities but they were part of a broader spectrum within the youth organisation.
MR MAGWAZA: In organising? No, he was not directly involved in organising but he was part of the group. When I say part of the group I'm talking about the membership of an organisation, I'm not talking about the secretariat or the executive of the organisation, he was just part of ...(indistinct).
MS NEERSINGH: If I may understand you correctly, Mr Magwaza, would it be correct then to say that the persons referred to in paragraph 2 of your affidavit were actually members of the organisation but not executive members?
MR MAGWAZA: To be precise as I said earlier on, as we were boarding the taxi, failing to find the Celes, then the decision from the people who were there, Mr Sibeya said to us the best thing to do right now since we haven't found the Celes is to go and attack at the Dombela's house.
MR MAGWAZA: The information came as such. As I was waiting at the bus shelter, by the bus stop, I cannot precisely remember who uttered the words, but within the group that was actually what was said, to say Cele and Ntemkulu has been murdered by the Mashaulin gang.
MS NEERSINGH: In paragraph 3 of your affidavit you refer to this gang as being a gang of notorious criminals. Would it be correct to say that this gang was involved in activity that was purely of a criminal nature?
MR MAGWAZA: For me actually explain was that we used to hold meetings in the township. Within those meetings these kind of allegations and people coming forward and talking about saying we are being brutalised or whatever, whatever, by the Mashaulin gang of which every time is being seen with the councillors in the township as being used by them. I did not actually take it, the whole thing, as just a gang related issue because the people who were killed were the activists within the township. It was then going to be difficult for me to separate the two of saying I'm talking about a criminal activity that goes along without any particular connotation as they had already been going with the city councillors at the time.
"We then left him sitting on a storm water drain but decided to return with the motive of finishing him or killing him."
MR MAGWAZA: I think actually when I look at the attack that took place, we felt, when I say we I'm putting together the people who I was with at the time, felt that people can easily implicate you or arrest you or charge you and that was the reason of saying if we go back then there will be no further evidence in the whole thing.
MS NEERSINGH: I'm sorry, I don't seem to understand you. Are you saying that the reason - my question, Mr Magwaza, is at the time you decided to kill him, you and your friends went along, found the man, took him out of the shower, chased him down the road and then attacked him but you did not kill him. Why did you leave him there? Why did you not kill him at that stage when the decision was to kill him?
MR MAGWAZA: Yes, because actually the motive when we went there, if maybe I could use words like attack or at the end of the day when a group of people attack someone, it's either a person gets seriously injured or a person is dead. However we went back and then he was killed.
MR MAGWAZA: I'll put it in this way. One, yes, not to charge us because we felt that will be the part of our broader political situation because when one is implicated, the whole thing will be going on a political banner so that's why actually we went back to kill him so that he does not report us and the matter goes back before the court of law.
ADV DE JAGER: I don't know whether I understand you correctly as far as the last answer is concerned. You went back you say because if he would report you the whole incident would go on a political banner or under a political banner. Do you want to or could you try to convey to us that the reason for going back was to prevent him from recognising or implicating you and your friends and that if he would do so that would cause political repercussions?
MS NEERSINGH: Mr Magwaza, I'm going to put it to you that the reason you went back and killed Mr Dombelo is not born of a political nature but simply because you were afraid that you were going to be charged for your criminal activity; that is why you went back and you killed a man who would be able to identify you as a person who assaulted him with such gravity.
MR MAGWAZA: Maybe to just take you further back before I come the question is that you are talking about a people who were the part of a youth organisation of which actually was working within the township and then what we were doing was actually to us of a political nature to say if you stop B from destabilising the township therefore we can carry on with our struggle of which was for the betterment of the people within the township. With us at that time we had nothing that we're looking as of a criminal nature.
MS NEERSINGH: Paragraph 9 of your affidavit says that after his death criminal activities and killings subsided in Lamontville. Did you honestly believe that by killing this man the criminal activities in your area would subside?
MR MAGWAZA: Yes it did. Maybe to elaborate on that, we then actually decided from our organisation to go around to people who were doing criminal activities and putting them close to our side and we even went for a kind of an education programme if I still remember. I'm not quite clear what was that, the problem that we could place, but actually from that time on I remember that people from area A couldn't go to B and vice versa but at that time after the incident everything subsided.
MS NEERSINGH: Mr Magwaza, I'm going to put it to you that your reason for killing Mr Dombela is because you believed that he was a criminal and part of a gang and that you took the law into your own hands and decided to sort out the crime in your area.
MR MAGWAZA: I will try to add one thing from what you have said that with collaboration with the Nigisimu Councillors because actually that's where the whole thing stands, I did not know the deceased first of all until actually the whole thing had happened.
MS NEERSINGH: Mr Magwaza, what I'm putting to you is that the killing of the deceased was not politically motivated but that you, together with your friends in the youth organisation, decided to clean up your township of the gangs and hence you killed Mr Dombelo.
MR MAGWAZA: Yes Chair, the anger is that when you lose one of your active members, yes you get bereaved, you get angry and a lot of things that will race within you because you have lost a valuable for your organisation or from your organisation.
CHAIRPERSON: Because you've told us that the deceased had stones thrown at him, he was hacked with tomahawks, you thought he was dead but you looked back and saw he was sitting, so you then chased him again and he was hacked and kicked and stabbed some more. Why did you then decide to pour sulphuric acid on him? Why did you produce it?
MR MAGWAZA: You know, as I said earlier on that I was having it, when all of this was happening, I had my rugsack on my back and I still the acid with me on my hand so I cannot actually say that we broke the bottle, gave it to Baba, pour it to him that it was a matter of saying now this is going to kill him.
MR MAGWAZA: My understanding is that if other people have learned from what has happened, they will actually move away and disassociate themselves with the councillors by knowing what had happened to the other person.
MR MAGWAZA: One thing is surely that you can - when one is labelled through his or her own actions then surely the news goes on and on about that person and as I mentioned this other case we actually noted it as so.
MR SIBNANYONI: There is just one or two questions I want to ask you. What was the attitude of your organisation or should I say the policy of your organisation in respect of people who were perceived as informers?
MR MAGWAZA: The policy of the organisation at the time was to push the people away from the township. Pushing away I mean for them not to be the part and parcel of the community that was striving for something good for themselves.
MR MAGWAZA: At that time actually the township was that it was going to be incorporated into the KwaZulu Bantustans and secondly the rent increases was high so was the bus hike that was there, the songs I'm talking about are songs that are around the same situation.
ADV DE JAGER: What's the position as far as the victims are concerned, are they opposing the application or are do they come and say we want to hear the truth but we're not opposing or what's the actual position?
MS NEERSINGH: My instructions are that the application itself has not been opposed but that everything that is put in the affidavit isn't totally correct. My instructions from the sister of the deceased is that he was not the leader of the gang, he was a member of the gang and she does not believe that it is necessarily politically motivated killing.
ADV DE JAGER: Yes okay, one thing, do you know anything about Mr Moloko, the person mentioned on page 14. Baba Sibayo, Maloko Moloko, Thomas Semi, Zanile Shange, Joseph Sebikulu, were they involved in the killing?
MR MOLOHLANYE: The people that I am definitely sure and clear about are the ones that are written on affidavit annexure B, that the ones that you've mentioned are those that were implicated as such and were standing for the trial.
MR MOLOHLANYE: I may have to find out Chairperson otherwise I don't have the details about what this number means otherwise for this incident we are dealing with only this application. I may ask for an adjournment to find out from the office.
MR MOLOHLANYE: As far as I'm concerned as I happened to speak to them, I understand that no one of them has applied because people where they felt was that they had already served their sentences and they do not themselves feel that it will serve anything for them to come to the TRC.
MR SIBANYONI: You are saying people whose names were mentioned on page 14 took part. Amongst those names is the name of Thomas Sizwe Seme, he has just filed a statement in which he says he was convicted for something which he did not do and then he also says he doesn't want to come before the Amnesty Committee of the TRC. What is your comment or your attitude about that?
MR MOLOHLANYE: My comment is that I did receive that fax or affidavit and I did speak to him direct and he said he has served his own thing, he believed he didn't do that and he doesn't want to come here, he doesn't want him to be implicated in this incident because he is not prepared to come forward so I have actually myself taken that as his right for what he felt deemed as his right not to appear before the Committee but for his name to say he doesn't need to be implicated.
In this matter, Chairperson, the applicant Mr Magwaza does comply for amnesty in terms of Section 20 of the Promotion of National Unity and Reconciliation Act, Chairperson, in that in terms of Section 20, Chairperson, the omission or the offence that was committed by Mr Magwaza was having a political objective and it was committed in the course of the conflicts of the past.
And then go to sub-section B, Mr Magwaza has made a full disclosure of his participation in as far as the killing of Mr Mkikwama Khanyile was concerned and he does mention that he was not part but he was the one who provoked the situation and when it comes to the issue that in sub-section 2(a) ...(intervention)
CHAIRPERSON: Sorry, on this he says he provoked the situation because as I understand his evidence, he walked up to this man and requested him to leave, he didn't shout at him, he didn't do anything to stir up the public, how does that amount to provoking the situation? How does that make him guilty of murder?
MR MOLOHLANYE: Chairperson, I think he will be guilty or he feels that he was part of the whole killing of Mr Khanyile because he feels that if he didn't go to Mr Khanyile or did not approach him, maybe the situation would not have occurred or the people would not have ...(intervention)
MR MOLOHLANYE: Yes you do require intent, Chairperson, and in this incident Mr Magwaza is trying to come up with the disclosure in his participation that he was the one who started the whole thing, not that he participated in the actual killing of the person but he provoked the situation which ended up where Mr Khanyile was killed.
CHAIRPERSON: But he didn't intend to on his evidence, on his affidavit he was asked, I'm not sure who asked him, I think it was one of my brethren, he said "no I didn't shout at him, I went up and spoke to him."
MR MOLOHLANYE: That is correct, Chairperson, but that according to him, according to Mr Khanyile, approaching Mr Khanyile, started to - and the people started to gather when they were talking with Mr Khanyile and Mr Khanyile was then afraid and then decided to run away, that is his participation ...(intervention)
CHAIRPERSON: Where is his intent, tell me? He is asking for amnesty in respect of a charge of murder as I understand it. On his - I have problems looking at his version of seeing that he had any intent to kill or that he foresaw it.
ADV DE JAGER: Chairman, if I would look at it, by asking the person to leave, wasn't his intention to prevent the person to be attacked if the person would have left, listened to him and would have left the vicinity of the funeral?
MR MOLOHLANYE: Thank you, Honourable Member. That was his intention but the whole thing went out of hand when Mr Khanyile ran away and was killed. His intention was to care for the situation where Mr Khanyile might be killed by this mob because there was a rumour going around at the funeral saying that fingers were being pointed at Mr Khanyile as an informer.
MR MOLOHLANYE: Thank you, Honourable Member. In this case a human being was killed, another human being was killed and therefore the applicant felt that he had a role to play in the killing of Mr Khanyile because he honestly believed that if he didn't approach Mr Khanyile, maybe that would not have happened.
CHAIRPERSON: If Mr Khanyile had quietly walked away, it is probable it would not have happened either, isn't it? He would have achieved his aim to say look, you shouldn't be here as part of this, just leave?
MR MOLOHLANYE: No, Chairperson, he did not have the intention of killing Mr Khanyile or injuring him in any way but the situation at the time and where the people were angry they ended up killing Mr Khanyile which my client feels he played a role in going to Mr Khanyile, approaching Mr Khanyile first and the other people saw a chance then we can go and attack him. Ultimately they killed Mr Khanyile.
MR SIBANYONI: On paragraph 4 he says that a group of about 500 people were chasing him, "I was also among that group", in other words he was also chasing him. Would you say he associated himself with the group or what is your instruction, why was he chasing the deceased?
CHAIRPERSON: Yes he said in his evidence, didn't he, that it all took place in a split second, by the time he arrived on the scene he was dead because in spite what he said in the affidavit my impression from his evidence was clear that he did not say he was part of the group pursuing, that he went to see what was happening as you have just said?
ADV DE JAGER: I think we still have the opportunity to clear this up. I don't think in our questions it really came forward as such and I don't know whether you want us - whether you want to request us perhaps to reopen the matter so that you could put - whether he ever had the intention of killing this man?
CHAIRPERSON: You are appearing for the man, my brother here has said in fairness that none of us specifically raised this point while he was giving evidence. If you now wish to reopen your case and deal with it you are at liberty to do so. It is for you to make the decision. You have consulted with your client I take it and it's for you to decide whether he will, whether you want to put further questions to him to get further evidence?
MR MOLOHLANYE: Thank you, Chairperson. I'll cross-examine Mr Magwaza on the one point, that is paragraph 4. His participation and whether he - before I may proceed, Chairperson, can I request an adjournment from this Committee so that I can consult with Mr Magwaza?
RE-EXAMINATION BY MR MOLOHLANYE: Mr Magwaza, in your affidavit marked A, in paragraph 4, you said you approached Mr Khanyile who was known to be and Impimpi and later it happened that Mr Khanyile ran away and a group of about 500 people were chasing him and ultimately they killed him. So the Committee wants to know as you're applying for amnesty, do you associate yourself with the killing or with the common purpose of the 500 people who were chasing after Mr Khanyile?
MR MAGWAZA: What I want to say is that my applying for the amnesty at the moment in relation to the case is that I felt that if I did not approach the deceased and for him running away after he was approached and at the same time with what was known about him in the township at the time, I strongly believe that maybe he wouldn't have been killed. My only conscience is one is that my association with the whole situation was that I approached him and I feel that that was how the situation was provoked.
MR MAGWAZA: My approach to him was not necessarily to cause harm to him, it was a matter of making him not to be with the people whereby anything could happen at the time. My approach was simple, was to ask him to leave the place. However, when he was chased I mean I was among the group and that's why actually I feel guilty in saying if I did not approach him it wouldn't have happened.
MR MAGWAZA: I cannot be clearly sure that this would have happened because everything was happening so quickly. I'll say that I'm sure whether maybe I would have been in front I would have had the motive of killing him or I would have killed him or I would have participated.
MR MAGWAZA: I did not have any intention to do so. My only reservation that I'm very guilty about for me to apply is that I strongly feel inside myself that I have not actually dealt with the situation because if I did not approach him I feel it wouldn't have happened. However maybe well if he was approached by other people, maybe there will be a motive among the group that participated within the whole thing.
"Man, leave this place you are not wanted in this area. Please can you move here because you are a collaborator or an Impimpi, move away from here."
When one says those words, I strongly feel because we're in a bigger group as the people heard what I was saying, I wasn't shouting, I was talking to him, approaching him as I am talking, then people within this situation, I believe they heard that that's why he was chased and he ran away.
MR MAGWAZA: Yes, chasing him as from the hall up until he turned, I can't estimate the distance because outside there were a lot of people. As I have indicated that there's a group of about 500 or so, it's just an estimation, it was a big group.
MR MAGWAZA: The words maybe people used, I'm just putting the words as words when the person is being chased could be words like, "vemba", hold him, catch him, that's what I could say maybe the words that were used at that time but I am not saying these are exact precise words that were used.
MR SIBANYONI: The reason why you were asking these questions is in law then it's to be things which a person does before he can be regarded as having committed a crime. Like in this one we are trying to look at your intention, what was in your mind and also what actions you did, what conduct you did and you are saying you only feel you are guilty because you approached him and in law that would not be sufficient to make you guilty. Do you realise, appreciate the problem we are having?
MR MAGWAZA: I do actually understand what the Committee is putting forward but my belief of a Truth and Reconciliation Commission is whereby whatever happened that needs to be shared with other people in saying this is what was happening and this is what is inside me whereby I need to clear my conscience, that's I was willing to sit here otherwise, Chair, if I did not have anything that is bugging me inside, I wouldn't have come and applied for amnesty in this regard. I do understand that the Committee is trying to find a situation whereby I did physically intended to do or to commit crime, I do understand that, but for me with my limited understanding of law, I thought myself I have committed something that contributed to his gross violation of his rights.
MR MOLOHLANYE IN FURTHER ARGUMENT: As I was saying, Chairperson, that Mr Magwaza does qualify in terms of Section 20 in that his actions of the killing of Mr Khanyile was associated with a political objective, a political objective and which was happening in the conflict of the time where people like the deceased like Mr Khanyile was perceived as - when a person is perceived as an impimpi or an informer of the State because a struggle was waged against the State at the time and against the councillors in Lamontville, Mr Khanyile was perceived as a political opponent because he was an informer of the State then. Therefore I would say that Mr Magwaza does qualify for amnesty looking into the terms of Section 20, sub-section 1 ...(intervention)
MR MOLOHLANYE: Chairperson, I think this application was made on the grounds, looking at the purpose of the Act and the objective of the Act itself, that people should come up who were involved in the acts and the gross violation of human rights in whatever manner they were involved in to come up and say that for the victims, for the sake of reconciliation in the country, Chairperson, and that I think this application was made on that ground.
"In this act, unless the context otherwise indicates and act associated with a political objective means any act or commission, omission which constitutes an offence or a delict."
And our problem is whether on the evidence before us the act he is applying for or the facts relate to an offence or a delict, the offence being murder and let me put it to you, I, on the evidence before me, can't find that he had a purpose, a common purpose even with other people to murder somebody, to murder Mr Khanyile, the informer?
MR MOLOHLANYE: Thank you, Honourable Member. I'll still advance that Mr Magwaza as he has said now in his evidence that he knows that there is no offence that he committed but for the sake of reconciliation in the country he thought that it was better for him to - and therefore it will be on the Committee to decide whether to grant amnesty on those grounds.
CHAIRPERSON: But my friend has just pointed out to you the Act says, defines an act associated with a political objective as an act or omission which constitutes an offence or delict. What offence does it constitute?
MR MOLOHLANYE: I don't disagree with that, Honourable Chair, as I've said now that the application will depend on the Committee if it accepts or it objects to the granting of the amnesty in this particular matter but as far as my ...(intervention)
ADV DE JAGER: But our problem is, we appreciate it and I think the victims appreciate it that he came forward and told the story and that he may feel morally guilty but according to the law on the evidence before us now, we can't say he is guilty of murder or guilty of any offence because the only thing he did according to his evidence is "I went forward and asked this man 'please go away, you're not welcome here'" and that's not an offence. Other people murdered him, he didn't associate himself with the purpose of murdering him, so we can't say he is guilty of murder or assault or anything and if that's the case we can't grant him amnesty because he didn't commit an offence and that's not because we don't want to grant him amnesty, that's what the law prescribes us to do because before one can grant anybody amnesty, he should have been guilty of committing an offence or a delict?
MR MOLOHLANYE: Thank you Honourable Member, as I've said earlier, I have no objections in the Committee refusing or objecting to the granting of amnesty on those grounds but at the moment I think the proper thing for me is to consult with Mr Magwaza on the basis whether he still wishes to proceed with the application or he will withdraw the application on those grounds.
MR MOLOHLANYE: Yes, on the second incident, that is the killing of Mr Sash Dombelo, also known as Mr Mkhize, Mr Magwaza has satisfied all the requirements in terms of that Section 20 in that the killing of Mr Mkhize who was a member of the Mashaulin gang used by the then councillors who were the enemies of the community and who were enemies of the political organisation in which Mr Magwaza belonged to, were killed because of the conflict existing at the time and he was perceived as a person who was destabilising the township, the township which Mr Magwaza and the other members of the community wanted to get peace in the area so that they can advance their objection to the rent increases, the bus increases and also the including of the township or the moving of the township to KwaZulu Natal which was then the homeland, KwaZulu Natal.
I therefore think that Magwaza does qualify also further in terms of sub-section 2(a), that Mr Sash Dombelo was a member or can be associated to a political organisation or a State which was then the apartheid State which Mr Magwaza and the other members of the community were against.
And also in terms of sub-section 3, further, the motive of the killing as it is stated in Mr Magwaza's, was to get rid of the Mashawlin Gang which was harassing the people of Lamontville and the omission, Mr Magwaza, was under a political disturbance, it was a reaction to a political disturbance at the time and the objective of Mr Magwaza and the Malayo is clear from the evidence given by Mr Magwaza that they wanted peace and they were fighting for rent decreases, they were fighting against the councillors, the councillors who were elected not by themselves but by the government of the day. I therefore pray this Honourable Committee to grant Mr Magwaza amnesty in regards to the killing of Mr Sash Dombelo. I thank you.
It is my submission that this is not a case where amnesty ought to be granted. From the evidence before this commission it is clear that the applicant failed to establish whether indeed it was the gang that was responsible for the killing of his colleagues, that's Mr Cele - if the Committee would just bear with me so that I could establish the names?
MS NEERSINGH: ...(inaudible) and that the killing was not in itself a criminal act. More so, in view of that gang being involved in criminal activity in the area it was not only politically motivated. It is also clear from the evidence before this commission that there was no intention to kill the deceased arising out of a political objective but that the actual killing was the finishing off of the victim because the applicant believed that the victim would have identified him and then have him criminally prosecuted. The killing of the member of the gang was not a decision of the political body that the applicant is a member of but rather he acted purely in concert with other residents of that community who may have been general members of that political body. It is my respectful submission that the applicant does not qualify for amnesty in terms of section 20 of the Act and that his act is purely of a personal, malicious nature and this is born out by the fact that when he rethought the killing of the victim he ran back to the victim and despite the victim having been already hacked, stabbed and stoned, he then threw acid on the victim.
MS NEERSINGH: In fact he is the person who supplied the acid. The evidence before this Commission is that he was the carrier of the acid and that he removed the bottle of acid and that it was a Mr Baba who actually threw the acid on the deceased. It is therefore my submission that amnesty ought not to be granted in this instance and that the murder of the victim was a pure criminal act.
MS NEERSINGH: My response to that, Sir, would be that there could have been a personal matter between the gang and the victims who were his colleagues and that not necessarily wasn't born of a political nature. If I may just amplify what I'm saying is if indeed there could have been altercation between his colleagues and the gang and it is for that reason alone that they were killed and had nothing to do with any political nature.
MS NEERSINGH: My submission, Sir, is that the applicant himself did not indeed establish that, he merely assumed. There is no evidence before this Commission to show that that killing was indeed politically motivated. A question was put to the applicant
CHAIRPERSON: Well, as I understood it, he explained that the question about the whereabouts was because that was the area in which the gang operated and once he was told the killing took place in that area, it confirmed his belief that it was the gang but he also proposed personal malice and things of that nature, he did tell us and I don't think it was challenged that he didn't know the deceased?
ADV DE JAGER: Is there anything where you could assist us as far as the first murder is concerned? Could you point out anything in the Act that would be in favour of the granting of amnesty to the applicant on that?
MR MAPOMA: Chair, I was at that point of suggesting that there is nothing now in the Act which suggests that in the circumstances amnesty can be granted to the applicant. The applicant in his own words has disassociated himself with the act of killing the deceased person.
CHAIRPERSON: The applicant has and I think we said this earlier appeared to adopt a very proper course in that he - the evidence that he has given to us and I think the family accepts this, is that he thinks that he may have acted a little rashly and that his behaviour sparked off this incident but he has very fairly not tried to claim any further involvement and he has apologised profusely and said he bitterly regrets the result of what he did and that is an understandable and I think a very proper attitude but it does not take the matter any further as regards the application, does it?
MR MAPOMA: Absolutely Chair, it does not take it any further and so that being the case, Chair, without taking the matter any further it is my submission that in the circumstances the Committee does not have a mandate to grant amnesty in this particular instant.
And secondly Chair, dealing with the murder of Sash Dombelo who was known by another name of Bongani Mkhize, the applicant, Chair, has given evidence here where he has associated the gang with the local councillors which were existing at the time and those local councillors were being viewed by the community as enemies of the people then by the political party which was existing then. I think, Chairperson, to a certain extent judicial notice can be taken of the fact that during those periods of 1983 the local councillors were not accepted in the communities by the parties which were following the politics of the African National Congress and those residents then were commanded much by the African National Congress politics then and in the circumstances I submit that the individual members of those gangs whilst the Act says clearly that an act must be directed against the political organisation or the State of former State or individuals, I mean Section 20, sub-section 2 of the Act says, it is my submission that these are the individuals against whom the Act envisaged by saying that the Act must be directed against those categories and/or individuals and in the circumstances therefore it is my view, Chair, that the individual concerned was killed there can fall into the category of those individuals. Now the question may be perhaps whether the act itself was an act taken bona fide in the interests of the political struggle which was waged there and I submit, Sir, that in the circumstances and in the light of the evidence before the Committee it is well conceivable that that act was an act associated with a political objective.
I take note, Chair, of the fact that there is a point which has been picked up that the intention was not to kill him for political purposes but to destroy evidence so to speak, but I would propose that the Committee take cognisance of the fact that when the group decided to go and attack the deceased, it was not said in so many words what is it that has to be done to the deceased. The act of attack those days would incorporate murder because the attacks were vicious. People were killed, people were injured and it all depended much really on the perservance of the victim of that point in time. So it is my submission that dolus eventualis may have been there at the time when they said they must go and attack, they may have envisaged murder as one of the results of ...(intervention)
ADV DE JAGER: At the time when they formed the intention to attack, they didn't intend at that time to destroy evidence and if you would say the initial intention prevailed throughout then the actual killing would be covered by the initial intent. Can we say the initial intention to kill came to an end at a certain stage? They didn't have the intention any more to kill but when he stood up and tried to walk further they formed another intention or was it still the same intention being carried through?
MR MAPOMA: Yes Chairperson, my submission is that the initial intention was not interrupted, it went throughout but it may - would be that at the time when they left him, they left him for dead. It's only that they realised he was still alive when they went back to continue with the attack hence the intention to make sure that he was dead was there so in the circumstances, Chair, it is my submission that throughout the decision to attack incorporated even the decision to kill and I submit that in the circumstances the applicant may qualify for amnesty, qualifies for amnesty for the murder of Sash Dombela. Thank you Sir.
CHAIRPERSON: Nobody has referred us to one of the documents that has been put before us, page 19, "Lamontville - a political history". I take it you've had an opportunity of looking at it and I will refer you to two passages and ask if you agree that we can have regard to them. At page 22, the second paragraph reads
"The councillors turned out to be stooges and biased in handling such matters, the Lamontville people started to get sick and tired of these councillors but no one came up with an answer or resolution. There were few meetings called at that time, lack of communication between the councillors and the community was like a decayed tooth"
"Jorac drew up a petition that was signed by more than 20 000 residents and hostel dwellers opposing the rent increase. A memorandum was sent to the Minister of Cooperation and Development Dr Piet Koornhof by Jorac"
and it would appear also that this supports what the applicant has told us, that Jorac was trying very hard to work for the community and is that accepted by all of you that here we have what appears to be an independent view of the situation?
MR MOLOHLANYE: Thank you Chairperson. I am ready and Chairperson as regards the application of the killing of Mr Mkikwama Khanyile in Lamontville, the client according to my instructions will be withdrawing the application.
CHAIRPERSON: Thank you, I think your client has been well advised but we do as I said before understand his reasons for coming forward to explain what he did and the responsibility that he feels for what happened on that day and we sympathise with him in that regard.