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Type AMNESTY HEARINGS
Starting Date 05 August 1999
Names VUSUMUSI ROBERT NGCOBO
Case Number AM5628/97
Matter MURDER OF MR BONGANE KUNENE
EXAMINATION BY MR NAIDOO: Mr Ngcobo, before we start with these proceedings, would you tell the members of the Committee, the affidavit that's before them, is that the correct version of the events that transpired, or is there more to what you want to say?
MR NGCOBO: There are things that I would like to mention which were not included in the affidavit. This was because of my state of health and for that of my family's. There is something that I would like to add now which I could not include then because of the fear I had for my family's and for myself.
MR NGCOBO: At the time when the ANC was still banned, around 1986, I joined the UDF. In 1990 when the ANC was unbanned I became a Chief Martial, responsible for safeguarding the members as well as guarding when there were rallies or protest marches and to make sure that that area was safe.
MR NGCOBO: After the death of Mliko, there was a message that came from the Commanders that it was alleged that he had been involved in the death of Mliko, specifically that he had given information to the police as to Mliko's whereabouts, because at that time the police did not have an easy time finding people in the township because we used to assist one another and it was alleged that he had been involved in giving information to the police.
MR NGCOBO: I received information from the Commanders on the day on which I had been collecting some money, contributions towards Mliko's funeral. As I arrived at home I got a message that some comrades had been looking for me and they had left a message that I should proceed to Bekilanga on my arrival. As I arrived there, that was a spot where we usually had our training and I found that the other Commanders were looking for me and I was informed that the instructors were looking for me. When I got there I found people like Nduna Gemba and Mbonesene who told me that they had received information from the Security Section that someone has been involved in giving information to the police. It was explained to me that this person had joined the police as an informer in 1986 and his house was at some point burned, so they had found out that this person had been involved in the death of Mliko. Moreover there were other ANC members who were still going to be killed as well as MK members, as SDU members. I was then given a gun and told that we should go to the Kunene household to kill Bongane.
MR NGCOBO: My role was to go out and kill as well as use that as a learning experience, because it was my first mission and I was going to receive instruction from my Commanders, or the people that I was with, how to go about it. I was given an instruction that when we get there, I would also shoot.
MR NGCOBO: Mtu and Gemba went ahead first, particularly Mtu had to check as to who was present at the Kunene household. Mtu then took a certain girl by the name of Nomtandaza, whom he said he was going to use to check whether Bongane had a firearm or not. He thereafter left with that girl and Gemba. After about 15 minutes they returned and informed us that yes, he was present and indeed he had a firearm, therefore we, we should go and attack. I was informed that we should not use a lot of ammunition because we were not aware, we did not know just how many people were there who could assist him.
MR NGCOBO: Yes. Mtu went ahead first and he had to check who was present at the house. This they did and they returned and the three of us, myself, Mbonesene and Nduna were the people who were going to partake in the shooting of Mr Kunene.
MR NGCOBO: Thereafter Nduna issued an order that as a person who had been trained, I should take care that none of our members are shot at. I should make sure that we shoot him. So what I was supposed to do was, I was not going to be the first to fire a shot, because they were better trained than I was, they were the people who were going to fire first. Thereafter we left and as we got there I was placed in a position, so were the other two people. I saw Bongane going up and down the yard and Nduna therefore after that approached. He had drawn his firearm and he insulted him and called him an informer, telling him that he has betrayed a lot of people. Bongane also drew his firearm but there were no shots that were fired. As he was still attending to Nduna,
MR NGCOBO: I would say they were outside and when Nduna approached carrying a firearm, they ran inside because Nduna was known. From their conduct, their running inside the house, I assumed that they must have known Nduna, who he was.
MR NGCOBO: Gemba and Mtu were somewhere hiding, I could not tell exactly where they were positioned but Mbonesene was close to me. As Bongane was still talking, arguing with Nduna, Nduna was telling him that, "do you think that you're going to have all of us killed as you are betraying MK members", and they were arguing about this and Eric was denying this, defending himself. At the time that they were talking, Mbonesene fired two shots in Bongane's direction.
MR NGCOBO: I think yes they did because as he fired and as Bongane turned, he fired and Nduna also shot and Bongane realised that there were more people and he tried to flee and he ran towards the car and at that time I also fired. He ran towards the vehicle and I could see that he was seriously injured from the way that he ran and as he got into the car Nduna fired as well as myself.
MR NGCOBO: They had exchanged gunshots with Mbonesene because Mbonesene crept up behind him as he was still talking to Nduna and after Mbonesene fired, Bongane fired a shot and it hit Mbonesene on the leg and I could see that Bongane was also injured because when he fired, Nduna had also fired his gun. He started running towards the car next to where I was positioned. I also fired two shots as he was running into the vehicle.
MR NGCOBO: Nduna fired towards the car, at the back of the car, as well as myself and Mbonesene. Nduna then ordered us to stop. He approached Bongane and he finished him off by shooting him on the head and then he removed his firearm from him.
MR NGCOBO: We approached the route to Zake, to Mliko's house. After this incident we met up with Mtu and Gemba and I realised that they must have been hiding nearby and Mtu had a big gun, I was not sure whether it was an R5 or an R4. I do not know whether they had gotten it from Bongane's car or from his home, I'm not certain. We then proceeded towards Mliko's home where there was a memorial service for Mliko.
MR NGCOBO: Some are late, like Gemba, he died at a robbery scene in Newlands East. Nduna was killed by the police, who attacked him at night. Mbonesene is still alive, although I do not know where he is. Mtu was also killed in a robbery. I think most of them, when they left their training, their MK training, they didn't have employment and they got involved in crime.
MR NGCOBO: Yes. I will say that with regards to the situation under which we operated when we were struggling and fighting against the apartheid regime, this government used certain people to kill those of us who were fighting, therefore you found that there was black on black violence, which was perpetrated by the same government. Even though they initiated negotiations, they still continued with the strategy of having people killed, for instance people like Chris Hani were killed in the midst of negotiations and in my case I was trying to protect the community of my area, that is the Besta area. I was prepared to take those actions that would contribute to the liberation of our people, and I will say Mr Kunene's death was a result of the situation that existed in South Africa, that he was used as an informer to kill us and we were therefore forced into a situation where we had to kill people, not because we loved to do so, but because we had to protect that cause.
Therefore I would like to apologise to Mrs Kunene. Today she is a widow, she does not have her husband to take care of her because of our action. The reason that I'm in prison is because of that crime, but I did this to defend the community of KwaMashu and the entire South Africa. I apologise for killing Mr Bongane Kunene in the manner in which we did. I ask them to forgive me. I do not have a personal grudge against them, just as much as I did not have any grudge against Mr Bongane, it was because of the political circumstances at the time. I will appeal to them to accept me and reconcile with me, particularly in this process of the TRC. I am determined to do the best I can to assist them, for instance if I were to get a job, I could contribute something to their family, because even myself, I have lost something, my family suffers because of my incarceration. I have children, two children. I have matured and I have turned over a new leaf now that I am in prison. I will appeal to them to forgive me, I am remorseful. Thank you.
MR MANZI: I think you did not understand my question. My question to you is that, do you know that to be a member of Umkhonto weSizwe does not necessarily mean that you are a member of the ANC? I'll give you an example. For instance you can be a member of Umkhonto weSizwe but being a member of the South African Communist Party. Do you know that?
MR MANZI: I see. Also further, you could be a member of Umkhonto weSizwe and be a member of SACTU, South African Congress of Trade Unions, which was based in Lusaka, without being a member of the ANC. You are not aware of that as well?
MR MANZI: Yes, those cards were available in many places and many people obtained them, even ANC abandoned the use of those cards simply because people were using them fraudulently. Don't you know that?
MR MANZI: Yes. My line of cross-examination, Mr Chairman, is to explain, to expose the fact that he was not sent by either the ANC or Umkhonto weSizwe to commit the crime, he was doing it because he was part of a group of gangsters that was operational in that area.
MR NGCOBO: I would like to produce some papers which indicate the type of person I am. Thereafter he can tell me if I am the criminal he alleges me to be. I would like the Committee to have sight of these papers, just what is contained therein about me.
ADV DE JAGER: You've heard what the learned legal representative put to me. He says he'll contend that you were part of a gang and that you didn't operate on this occasion on the instructions of MK or of the ANC. What's your response thereto?
"Sir/Madam, Robert Vusumusi Ngcobo, he lives at Besta Camp under Peter Makaba branch. He is a full member of African National Congress. He was working under the structure of community. He was a martial and he was on the cabinet as civic"
And it's signed by the Chairperson, it appears to be P M Majaba and the secretary, J M Buthelezi and there's a stamp of ANC Peter Makaba. The second letter is one with a letterhead Besta Civic Association, giving an address, postal box in Durban, telephone number and they are both hand-written in ink. This one says:
"To whom it may concern. This serves to confirm that Comrade Vusumusi Robert Ngcobo resides at Area 1, House no 1, 1151, since 1986. He has been one of the civic structures at the umbrella level as an organiser. He played a very big role in our community and to the development.
and it seems to have, I say seems because the lettering is very dim, I can hardly read it, it seems to have the surname Ngcobo, full names Vusi and it is stamped Natal Command. I hand that to you. Perhaps these should be numbered A, B and C. If you could put that on please. A will be the first one.
MR NGCOBO: As I explained before, when the MK started operating inside, we were still training so that we are able to protect the community. This was a legal venture, there had been an instruction and authority to do this. The Commander is instructed to appoint people, responsible people, who would be trained as SDU members. I am one of the people who requested a letter from the Besta community, Civic community, recommending me for their training, that I was a responsible person who would be able to protect that community. You would have not been able to join that programme if you were not a member of the organisation because it was decided that the people who were going to be trained were to be members, just in case they train people who were not members, who would receive the training and would thereafter go and carry out attacks somewhere.
MR MANZI: Mr Ngcobo, the African National Congress was not training the killing machines, it was training people for a particular purpose, to achieve that purpose the ANC put up the structures such as political Commissar to teach their trainees as to what were the aims and objectives of the ANC. Do you know that?
MR NGCOBO: I would agree with you that the ANC was not opening the flood gates of killing machines, that is not how it happened. I am an ANC member. I was not instructed to go out and kill anyhow but I was trained to defend people from attacks, Inkatha and ZP attacks. This is what we were experiencing daily. People like Harry Gwala told us that we should train so that we are able to defend ourselves, not that we were going to be killing machines, no this is not how it happened.
MR NGCOBO: Yes, he said "Vusi, when you go out, you must ensure that whatever happens on this thing you must observe, because we may die at any time and after our death you are going to be the people who will be responsible for protecting the people, so you should go and learn from then what happens to informers, how they are killed."
MR NGCOBO: Maybe you did not understand how the military system works. Maybe you are not aware how things operated in MK, you are putting that position because you are a lawyer. Bazuga would have not produced a firearm and given me instructions that I should go with them, he would have not issued such instructions if he did not want this person killed, therefore all the instructors were in favour of this act.
MR NGCOBO: Everything that I was told by the Commanders I regarded as truth because they, in their teachings, emphasised that we should always receive orders from them because they also receive their own orders, I do not know wherefrom, but they also received orders.
MR MANZI: Now also as you were from Besta squatter camp you knew of the nearby area Lindelani, where many innocent people were being killed by black people under the pretext of black on black violence, is that correct?
MR MANZI: And in your teachings, as you claim to have been a member of Umkhonto weSizwe, you were told that innocent lives must be protected at all cost. You do not have to kill an innocent person as a member of Umkhonto weSizwe, is that correct?
MR NGCOBO: You are telling me what you know and I am telling you what I know. Yes, we were taught to protect people if they are being attacked by hit squads, IFP hit squads or if they're just being attacked. It was our duty to protect them if they were being attacked. That was my duty and I did this.
MR NGCOBO: I would like to ask, were the ZPs who were killing black people not black and we have seen some of them before the TRC, the other people who have been killing black people, were they also not black? The apartheid regime made it possible that black people attack other black people.
MR MANZI: Yes, as much as that was the case, you had to attack a ZP simply because you identified him as a ZP, but in this case you had no identification of Bongane Eric Kunene, either as a ZP or as a member of the SAP, is that correct?
MR NGCOBO: I dispute that. We had information that he was an informer who worked in collaboration with the police in the township. We knew what the situation was in the township. The Commanders had their Security and Intelligence sections which collected information as to the goings on in the township. Even when we were attacked, we would receive that information that we are going to be attacked by such-and-such people.
MR NGCOBO: There were over 600 people present and all of them were angry when Mliko died, I was also angry, but I did not request, I did not go to them and tell them that I should be appointed to go and kill Mr Kunene, they out of their own volition, appointed me, they ordered me to go and kill that man.
ADV DE JAGER: Isn't his grace that he acted on the orders and he obeyed the order, would it then be a prerequisite for amnesty that he himself should have a certain opinion, but if he, in contrast to he believed what his Commanders told him was the correct position and he acted bona fide on what they told him.
MR MANZI: Yes, Mr Chairman, if that was the case, if he acted bona fide, but in this case as the questions are going to unearth at a later stage, that there was no bona fide belief that Mr Kunene was an informer, it was just a rumour as it could have gone against me, just in the township and it could have gone against anyone. That is not, the Act says that it must be a political motivation and of course, if that command was a genuine command, it will fall within that category, but this was not a genuine command and the cross-examination as it develops, it's going to show that it was not that.
ADV DE JAGER: Yes, you see, I don't think he's been mentioned previously, so our staff couldn't give him notice of this hearing and he's now implicated because I think the witness said he was at the planning and we must keep that in mind as far as the Committee is concerned, so we would like, if you could find out whether he is still alive or where we could find him.
MR MANZI: I'll try and get it from the witness. Now, Mr Ngcobo, my instructions are that before the killing of Mr Kunene, a girl came running into Mr Kunene's yard, being chased by a boy who was then confronted by the son of the deceased, What do you say to that?
MR NGCOBO: I will not be able to comment on that, but I heard the Commander Mtu saying that they had used a certain girl to find out if Bongane was present, but I cannot really comment on the girl because I was not present.
MR MANZI: You were part of the dangerous mission, the conspiracy to murder Mr Bongane Kunene. Are you telling us that part of the information with regard to the actual commission or execution of the mission, was concealed or was not known to you, is that what you are saying?
CHAIRPERSON: Hasn't he said, they went off first to find out if he was there? They came back and told us. Do you expect him to say "well, we're going to go and knock on the door and look through the window" and tell every detail? Surely it's sufficient if they simply say we are going to go?
MR MANZI: Yes, Mr Chairman, but in this case the statement of the witness himself speaks of the girl called Nomtandaza. That is what I'm trying to establish from the witness, whether he knew of the plan of Nomtandaza. Did you know of that plan, that Nomtandaza was going to be sent first?
MR MANZI: Well, my instructions are that the death of the deceased was because of his intervention in the Nomtandaza saga, that is when Nomtandaza was threatened by a male who was chasing her, who in fact drew a gun in the yard of the deceased.
MR MANZI: You see it was a question of 5 minutes, between 15 minutes and, 5 to 15 minutes, that the girl approached the house of the deceased and then that man went away. He came back to confront the accused 15 minutes later, what would you say to that?
MR NGCOBO: The whole scuffle started inside the premises because he was arguing with Nduna who was telling him that he was not going to be able to finish off everybody in the MK and Eric was talking to him about this and as he was doing so, Mbonesene started firing. Bongane fired back and then Nduna shot at him as well. That was when he started running from the yard to his vehicle and he was going to pass the spot where I had hidden myself and at that point I also shot him and he got into the vehicle thereafter.
MR MANZI: That is not true, the deceased was shot at while he was seated in his motor vehicle. He was not shot at in the yard. He was not shot at in the house, he was shot at in his motor vehicle. That is why his motor vehicle was riddled with bullets.
MR NGCOBO: From the Commanders. He had been involved, he had had a role in the killing of Mliko. People who had been trained, received military training, would not have just accused him of something that he had not done, they just want to kill him. Why would they want to kill him?
MR NGCOBO: Mr Bongane did not work alone in this department. As I mentioned before he couldn't communicated with the police. From the information that we had, Bongane did not work alone but he was involved in a covert operation. If you looked at him, you would just see a normal innocent person, but he was not that innocent because in general after the death of Bongane, we discovered that there was someone, just as someone who had a video camera which he used to take our training. The KwaZulu Government wanted to know why people were being trained therefore they would use innocent people to obtain such information. That Justice was one of the people who'd use a video camera to tape our training and unfortunately he was caught and that video camera was removed from him and the tape was taken to senior people in the organisation. I'm just trying to explain that yes, the government would use people, even people like yourself, an attorney, you would be used as an informer so as an attorney you may tell me that he was an innocent person as you described him, but from the information that we had, we knew that he was involved in the death of Mliko and even in 1986 his house was burned down because of that information that he was an informer.
MR MANZI: Thank you, Mr Ngcobo. I understand your position and you problem, but you see today the Chair over there, the family and all of us want to know the information that you're talking about, what information did you have to justify the killing of Mr Kunene? Not only that, don't tell us about the rumour that he was an informer, but concrete information, did you have any? This is what the Chair wants to know, this is what we want to know, this is what the family wants to know.
MR NGCOBO: As you say, yes, everything that they informed me of, I'd believe them, because they had been authorised by senior people in MK to train us. They would have not been given such powers if they were not reliable. When I went wanting to join, I went to the offices and I was given forms to fill and I was directed to them because they were the people who were going to be responsible for training. In fact I wanted to receive my training outside the country but because of the fact that the arms struggle had been suspended I could not do so, so all the information that I received, everything I got from there and we did so, we worked together trusting one another.
ADV DE JAGER: I'm not asking you a long question, I've asked you whether you've made an affidavit, I don't want to know whether you came from the gym or where you went to. Could you look at page 4, please?
ADV DE JAGER: Well you stated that in your affidavit: "To me she appeared to be in love with one of the Commanders."
"She was in front and they were following her. Since I was an escort, I was in the back taking charge of the situation."
"When the owner of the house whom it is believed was Mr Kunene, opened the door and that is when he was shot at by these three."
MR NGCOBO: Not that I was prepared to, but I was afraid because when she said she came from the TRC I was not sure whether she was a detective or a police officer and it could be that that information would be leaked and my family would be harmed, but as I say, most of what is contained in the affidavit was not the true version. I am recounting the true story as it happened now.
MR NGCOBO: I cannot recall. There were a lot of statements that were made. She made a lot of statements. She put different versions or statements in court, I cannot recall whether she specifically mentioned that they were in the car.
CHAIRPERSON: But I find this a little difficult to understand and the Judge had no hesitation in accepting her evidence and the evidence of her daughter, who spoke about how the shooting took place in the car. You heard that evidence didn't you?
"I wish to state that all the information contained in the police docket as well as in the court records, are not true. The true facts are as follows."
And then you set out a version that makes no mention of the deceased being in the car, being shot at in the car or anything about it. You say here, as my colleague has ...(indistinct), that he was shot at by these three as he opened the door of his house. Why did you give that version Mr Ngcobo?
"I don't know whether they took the firearm or not because I was on the look-out for the people who might interfere."
MR NGCOBO: Yes, they did take the firearm. It is not that at that time I was intent on lying, but the way in which she arrived and what happened I was in a bit of fear and even my state of health was not right.
MR NGCOBO: It is not that those were lies, but there were mistakes that were made, but as I have mentioned before, I was not in a right frame of mind, I could not have told her to return some other day to take the statement as she wanted it there and then.
MR MANZI: Mr Ngcobo, in conclusion I'll put it to you that your killing of Mr Kunene was not motivated by any political, there was no political motivation whatsoever but it was a revenge attack as you have stated, two, it was aimed at robbing the deceased of his firearm.
MR NGCOBO: There were several Commanders, but I cannot be certain as to who was in love with Nomtandaza, because these two, romantic life and military life were very separate. Even if I could suspect or from what I saw, suspect that there might be a relationship going on, I was not in a position to ask.
MR NGCOBO: I was told that they were going to use her to find out if Mr Bongane is present and who else is also with him and when this took place, the actual chasing of Nomtandaza, I was not there, but I was informed that Nomtandaza would be used to find that information.
MR NGCOBO: I do not know what happened after they turned the corner. I could hear her screaming. I cannot explain everything that happened. The last time I saw them was when they turned. I heard her scream but I cannot say what happened there, because the houses are positioned in such a way that you are not able to see everything that happens in another house.
MR MAPOMA: For your information Mr Ngcobo, Nomtandaza was interviewed by the TRC investigator and in the report that we received is that Nomtandaza denied any knowledge of you and your co-perpetrators. What do you say to that?
MR NGCOBO: As I said before, I would agree with her if she says she does not know me personally because I do not reside at L section, I resided at Besta. She may be telling the truth that she doesn't know me and it is quite a distance from L section to Besta. She would not be able to know everybody who stays at Besta whereas she resides at L Section.
MR NGCOBO: I played quite a role. I started at Martial level, protecting the community and thereafter I was elected on to other positions and in the community I was elected into the Civic Organisation and I was part of the committee that encouraged development at Besta and installing facilities like toilets and bringing water, because it was also within the scope of our struggle that people should be able to have access to these other facilities.
MR NAIDOO: Now, when Mr Manzi cross-examined you, you testified that the only reason Commander Bazuga wanted Mr Kunene killed was because he had killed Mliko. Was this mentioned by Bazuga or is it just what you assume?
MR NGCOBO: As a soldier you are not in a position to question an order even if you're just told to lie on your stomach, you do so without question, therefore I accepted that order without questioning him.
"I did not know much about Mr Kunene, but I just overheard them alleging that he was an informer working with former ZP, Zululand Police and South African Police Services, since he was living at C-Section where his house was burned down."
MR NGCOBO: They were speaking in my presence because they sent Comrades to my home to collect me because when I arrived I saluted them and I heard them talking about Eric Kunene but at that time I was not aware that they were going to order me to go and kill him, but they returned later and informed me that yes, there is this person who is implicated in the death of Mliko.
MR NGCOBO: As I mentioned before the investigator found me whilst I was not in a correct frame of mind, my state of health was not its best and she proceeded asking me questions. She didn't give me a copy of what she had written down, of what I had said to her.
ADV DE JAGER: You were charged, can you remember why you went to jail? You went to jail because on the 31st of October 1993 you killed Mr Kunene and on that same day, the 31st of October 1993 you assaulted Mr Kunene and with force and violence took from the said person one Luger pistol number so-and-so-, which was his property. Is that right?
"About the Inanda case, I committed it solely with an intention to get a firearm in order to protect ourselves. However, it was seized by the police. I am also serving for the same offence."
MR NGCOBO: No, I think you are making a mistake. There is a case, a crime for which I was sentenced 5 years, that is robbing a firearm from a policeman. It was a, It involved a Sgt Ngoma. With regards to this hearing, I am seeking amnesty for murdering Bongane Kunene. I have not mentioned anything about seizing a firearm. I was involved in two cases, maybe there is a misunderstanding somewhere.
FURTHER CROSS-EXAMINATION BY MR MAPOMA: I'm sorry, I picked this up very late. On page 1 of the application form, paragraph 9, where it is required to furnish particulars of the acts or omissions, two murder and robbery. If I may ask for clarity, to which two murders is he referring to?
MRS KUNENE: We were supposed to go to F section where he was going to watch the soccer match. He had requested me not to alight from the car because I may delay inside the house and he would run late.
MRS KUNENE: A certain boy by the name of Ndwele, who was a relative approached and he intervened and said "please do not him this girl in front of our parents, you are showing disrespect to this family if you hit a girl in front of our parents."
MRS KUNENE: After that this boy drew a gun, wanting to shoot Ndwele and Ndwele ran into the house. My husband then approached and as he approached, on seeing this boy with a gun, he withdrew his firearm, but he told him that you should not start something that you are not going to be able to finish and this boy asked "Are you now intervening in this matter?" and my husband said, "Do not start something that you are not going to be able to finish. Put your gun away and leave my house." This boy then left. We then reversed the car because we were about to leave.
MRS KUNENE: Yes. At that time the car was parked in the yard. Thereafter he got inside the vehicle and reversed the car. A certain boy by the name of Kholane approached. He had come to watch the soccer match.
MRS KUNENE: After the arrival of Kholane we then - Kholane took the other smaller kids to the shop. He said he was going to buy them sweets. As we were still waiting for them to return, these boys approached.
MRS KUNENE: The car was stationery. The boys approached from the toilet side and as they approached they were already firing. I was facing their direction and my husband was facing my direction and as they were shooting, my husband got out of the vehicle and because of the firing that was going on, I did not know what was happening, but because of a number of reasons, the person that I managed to see clearly, was Mr Ngcobo seated here.
MRS KUNENE: I have never really recovered because even now it disturbs me, it comes back to me, whenever I am not well it comes back to me. I cannot even face a person who has a firearm in his possession because it just brings back those memories. Even now I haven't recovered.
MR NAIDOO IN ARGUMENT: Mr Chairperson and Members of the Committee, the applicant in this matter is 29 years old with two minor children. He was only 24 years old when this offence was committed. As we have heard evidence earlier, he was indoctrinated into politics at a young age, 1986, when he joined the UDF at the age of 17. He is affiliated to the ANC and was so affiliated at the time when this offence was committed, when Mr Kunene was killed.
It must be borne in mind that the killing took place at a time when political violence was rife and even friends became enemies due to different political beliefs. There were many rumours and it may be that there was no truth in the rumour that Mr Kunene was an informer, but the applicant acted merely as a soldier and acted under instructions of a superior officer.
The applicant being a member of the ANC believed very strongly that the Zulu police were destroying the ANC and to further the objectives of the ANC he acted accordingly. I submit that he acted in terms of Section 20 sub-section 2(a) in that he removed an obstacle in the path of the struggle. My further submission that he has conformed with the requirements of the Act specifically in that firstly the act committed had a political motive and objective and the applicant was an active member of the ANC at all material times and secondly the applicant has made full disclosure of his involvement in the killings, obviously showing remorse for his past actions.
CHAIRPERSON: I take it that you submit that the discrepancies or contradictions between the versions of the applicant and the widow do not indicate a desire to lie, but merely that in the confusion of the moment the parties' recollections may differ?
MR NAIDOO: That is correct, Mr Chairperson,. It must be borne in mind that at the time when this took place, Mrs Kunene would have been in a traumatised state and her recollection may be somewhat vague. Obviously her first interest would be the well-being of her husband.
CHAIRPERSON: Equally well the applicant may be, as I understand it, this is the first time he had been involved in an incident of violence of this sort and guns going off and bullets flying might make one a little apt not to recollect things in the proper order.
ADV DE JAGER: What about the differences in the two affidavits, that the other people shot and he didn't shoot and the involvement of the girl and whether he could see her or not see her and hear her or not hear her?
MR NAIDOO: Mr Committee Member, at the outset we tried to bring to the attention that the affidavit differed from the evidence that was to be given today by the applicant, solely on the basis that when he initially made the affidavit at prison, he was sceptical as to the person who was actually taking it down.
MR NAIDOO: I think in all probability, he didn't want to implicate himself in the statement, but as he mentioned when he was brought before this Committee, was that he wanted to make full disclosure to the Committee.
MR NAIDOO: I think merely just being scared. I think that point has been overcome by him coming out before the Committee today and making full disclosure of his involvement in the actual shooting and the fact that he didn't fire and he went even so far as to admit that his bullet may have struck the deceased.
MR MANZI IN ARGUMENT: Thank you, Mr Chairman. I'm asking this Committee to dismiss the application by the applicant on the grounds that 1, the applicant has not made a full disclosure of the events of the day.
1) Before this Committee we have three statements all of them under affidavit, one statement in court, which the explanation we may accept that it was in a criminal matter, a different scenario compared to the application made now by the applicant.
2) We have an affidavit by the same applicant of the 16th November 1998 which affidavit differs materially with the statement as disclosed by the applicant today here in court. Up to today he wants us, in his evidence today he wanted us to believe that it was a well-planned mission which had an intention to achieve a political goal, but he also accepts that the ANC was not training killing machinery, killing machines, as such there was politics involved and as such there would be a proper planning for a proper achievement of goal, of a particular goal and in this case we are also aware of the fact that there were gangsters who were operating in various townships, which gangsters are still taking advantage of misunderstandings between various political organisations in the township. If we take that into consideration, the question is, doesn't the applicant fall under that category? He wants us to believe that there were people who were Commanders, some of the people he does not know their names properly, he knows them as Bazuga and there is also evidence that some of those he wants us to believe that they were Commanders, died in fact in execution of robberies. I wonder if those people did not die, they would not be here today making application for amnesty for the same robberies under the pretext that it was under politics.
Now here is a man, a head of a family, a responsible man. Only on a rumour a man is killed. There is no concrete evidence, it's just that "I was told by the Commanders". The purpose of the act was not to give amnesty to all those people who would go about with rumours. That would be dangerous even in the township today. The purpose of the Act was to solve the feelings of those who were affected by ...(indistinct) and by previous incidents and bring about reconciliation and in order to achieve that the act had to show that it was a political act and there was a full disclosure and then the reconciliation would be brought about by the acts of the Committee.
In this case there is nothing whatsoever that could bring about reconciliation. We are told not the truth and as and when the applicant was subjected to cross-examination in piecemeal evidence was coming which was contradictory in itself, therefore up until now we do not have full disclosure.
2) It is clear even from the evidence of the applicant, that there was a revenge of the death of one Mliko and that revenge, whether it came from a Commander or it came from a Commissar or it came from a man who called himself a Commander, the fact of the matter is that it was a revenge and the purpose of the Committee is not to give amnesty to those people who sought revenge, because revenge, if it were to be sought, many people would die even today.
MR MANZI: Yes, be that as it may, but this particular killing, if perhaps it was a revenge with political connotations in it, with concrete evidence or evidence that would cause this Committee to consider the fact that those people were somewhat ignorant, those who were participating there, then this Committee would be sympathetic, because this Committee is, consists of objective people, but this Committee can not be sympathetic to a person coming from a township, listening to the rumours in a dangerous situation, then acting on those rumours of the people who died in robbery circumstances, because this comes from the applicant himself, then that will tell the Committee that the applicant and his gang were dangerous people, not unless of course we do get evidence and information that would persuade the Chairpersons here that no, indeed this young man as the applicant wants us to believe, was mislead. No, but we had a group of gangsters here.
MR MAPOMA IN ARGUMENT: Chairperson, regarding the political motivation, the political objective, it has been shown Chairperson, that there was a perception of some kind about the deceased person along the lines of being suspected as an informer.
It is not the duty of this Committee, Chairperson, to establish whether such perceptions were actually true or not and if now the applicant for amnesty acts along those perceptions which were arising from rumours, it will be recalled, Chairperson, that during those days it was a very dangerous situation. If unfortunately somebody has been rumoured to be an informer, it was very unfortunate for that person. Once, one in the circumstances may understand the circumstances which lead to that perception, rightly or wrongly, Chairperson, a perception.
Now coming to the applicant himself. This is a case where we are dealing with a foot soldier, he is not a person actually who took a decision to attack the deceased person but an order flew from above to him to obey and it is very difficult in the circumstances even to say that let us put his bona fides in question because an order is an order. That is the rule of the army and that is the kind of a person we are dealing with here.
In the circumstances, it is my submission that the Committee may have to acknowledge those circumstances, that we are dealing with a footsoldier here acting under the command, which command was based on a rumour which, during those days, led to these unfortunate circumstances. That is the only areas I wanted to address the Committee on.
I may also deal with the question of revenge. This revenge spoken of in this particular instance, differs to a certain extent from a revenge where a person revenges for what he or she personally suffered.
ADV DE JAGER: Mr Mapoma, I've got problems with that. If I would revenge the death of my brothers because they've been killed by my enemy, you say then I would be in a worse position for killing the enemy than another person who's also killing the enemy but he hasn't suffered the same loss?
CHAIRPERSON: But isn't here, aren't we getting a little bit confused by the use of the word revenge? What they were doing as I understand it, was killing him because he had acted as an informer and thereby enabled the police to bring harm to their party?
CHAIRPERSON: It's not killing, revenge, because you've killed my brother and my feelings ..., here it is this man is an informer, he has given the police information, because they think it was his information that enabled the police to bring about the death of this man, so your revenge is for his actions as an informer, not for your emotional feelings of having lost a friend, which is a different sort of revenge.
MR MAPOMA: Absolutely, that's what I was trying, that's the point I'm driving home and in this case, these rumours, the basis of these rumours was only on the incident of the death of Mr Mliko, but apparently some cognisance had been taken of the rumours even before that, unfortunately in this particular situation. Thank you Sir, that is my submission.
CHAIRPERSON: ...(microphone off) had asked in other matters and I don't know if we've been passed on on this one, that we can please have the full names of all possible victims. We've got the name of the mother but I gather now there are children as well who might be for reference to the other Committees, so if you could let us have details of all the family.