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Type AMNESTY HEARING
Starting Date 31 July 1997
Names MR DUMISANI MTHEMBU
Case Number 2618/96
CHAIRPERSON: This is Thursday the 31st of July and it is the Amnesty application of Dumisani Mthembu, number 2618/96. The members of the Committee are myself Andrew Wilson, Mrs Khampepe and Mr Potgieter.
MR WILLS: Mr Chairperson, members of the Committee, I would like to apologize for the delay in the commencement of this hearing. Basically what occurred was that there was a problem with the location of a second witness which we intended using this morning. The driver of the vehicle arrived at the agreed meeting place at the correct time and many efforts were exercised to try and locate him. Unfortunately these were fruitless and time wasting, as a result of which their journey from Sindumbele to here this morning was seriously delayed and they apologise profusely for inconveniencing the Committee in this regard.
MR MPSHE: Mr Chairman, I just want to put it on record that pertaining to the victims here, only one is present with us Mr J W van Schalkwyk. The other four are not available, thank you Mr Chairperson. ...(inaudible)
The second document is a sketch plan of the house in question, that is house 1658 Sindumbele and an immediate vicinity house plan of the same house which was compiled as a result of an inspection in loco which I performed.
EXAMINATION BY MR WILLS: Mr Mthembu, Iíd like you to just realise that whilst you are giving evidence you must talk slowly because as you are giving evidence people are both writing down notes and the evidence you give is being translated, so just speak slowly while youíre giving your evidence, thank you.
MR WILLS: You have been charged in the Impangeni Regional Court under Case number RC410 of 1992 in respect of counts relating to two counts of attempted murder, one count involving the illegal possession of a firearm and one count involving the illegal possession of ammunition, do you confirm that?
MR WILLS: Thank you Committee member. Now in order for you to perform your duties as a guard, you must have received some form of training, can you tell the Committee if you received such training and tell them where this training occurred.
MR WILLS: Now Iím going to turn now to the incident in question, that is the events that occurred in the early hours of the morning of the 2nd of September 1992. You said you were in Mr Shanduís house at that stage, is that correct?
MR MTHEMBU: I woke up when I heard gunshots in the house - we were surprised - I woke up and entered the passage of the house and we were being shot at and I fired shots back to the people who were shooting at us. After that Mr Shandu called out asking whatís happening, who are shooting at us? They shouted back saying we are the police.
MR MTHEMBU: After Shandu shouted asking who they were, the police replied saying, we are the police. After that the police said Shandu should open the door. Shandu asked, arenít you going to shoot us and they said no we wonít and they insisted that he open the door.
MR MTHEMBU: They searched him and also took him outside and they instructed him to lie down on the ground on his stomach and they were pointing a firearm behind, from behind while he was lying on the ground. After that Vusi came, heís my brother who - he were with us. They also searched him and they also instructed him to lie on the floor on his stomach, they also pointed a firearm behind him while lying on the ground.
The third one was myself. They also searched me and they told me to go and lie on the floor on my stomach. After that they woke me up, they picked me up, grabbed me and picked me up and put - and drove me back - pushed me back into the house. There were three policemen. While, after entering the house they said I must point a firearm. I entered the kitchen with them and I pointed the firearm next to a kitchen scheme.
CHAIRPERSON: Did they say, point a firearm or did they say he must point out a firearm? Perhaps I should explain that translated into English in that way - point a firearm usually means point a firearm at a person. If they say point out a firearm, it means show them where it is.
MR MTHEMBU: They said I must point out a firearm. I pointed out the firearm and they said - they pushed me towards the gun and said I must pick it up. They were pointing guns at me standing by the kitchen door and they were saying I must pick it up and if I donít pick it up, theyíre going to shoot me. While they were pointing the firearms at me saying that I should pick up the firearm and if I donít they going to shoot me, I kicked it because I thought they were going to shoot me. After that I didnít see what happened however, even if I have told them that they mustnít shoot me, I do know what happened. I remember the last time I remembered was when I said, pleading with them that they mustnít shoot me. I donít remember what happened after I took the firearm because they were pointing guns at me and saying that I shot their friend. One of them took out a gun and pointed it at me and said I shot his friend. After that I woke up at Wentworth, I regained my consciousness at Wentworth Hospital.
MR MTHEMBU: They took me from Wentworth to Stanga Hospital where I stayed for one week. Thereafter they took me and charged me. Thatís where I heard that at the time when we were attacked and I shot in retaliation, one police was injured.
MR WILLS: In fact that was made on the 30th of September 1992, is that correct? Committee members Iím referring to the exhibit that commences at page 48 of the bundle and continues until page 55. Did you tell the truth in this statement?
MR WILLS: Members of the Committee, in this regard I refer to Exhibit A as itís relevant at this stage and I specifically refer to page 4. Itís the 4th page but actually listed page 3 of Doctor Lashisheís report and particularly the paragraph entitled Opinion and I specifically refer to the final sentence of the psychiatric report and I quote
"It is questionable whether on 30th of September 1992 he was competent and/or able to appreciate the legal implications of making a statement to the police".
MR WILLS: Now just for clarity, you indicated to the Committee when you were in the kitchen with the police and they were pointing firearms at you and ordering you to pick up the firearm, did you actually touch the firearm with your hands?
MR WILLS: Thank you. Sorry, thereís one final incident. I have some photographs here and I must apologise to the members of the Committee, I have only got one set of these photographs but if I can just show you these photographs. I just want you to peruse those photographs and tell me if they are photographs taken of the house and the interior of the house at 1658 Sindumbele, i.e. Mr Shanduís house. Just look at the photographs please. Are those photographs of both the exterior and the interior, certain interior parts of Mr Shanduís house?
CHAIRPERSON: Well before then, can I refer to six of the photographs that seem to show pock marking on the walls. Sorry, the seventh, external six so pock markings to the internal walls. Were these marks of bullets that were there after this, the night in question?
CHAIRPERSON: And are there also some bullet marks on the outside of the house, in particular one of both sides of the window that appears to have been shattered, of the front window of the house where you can see the number 1658? Do you agree there were bullet marks on the outside of the house as well and the window was shattered? You wouldnít know would you, you canít say what it looked like after the house, shooting because you were taken away to the hospital.
MR WILLS: Mr Chairperson, I just want to basically him to identify the home at this stage. My next witness will identify the ...(intervention) Sorry, could the Committee just bear with me, I just want to consult with the evidence leader very briefly.
Just for reference Mr Chairperson, members of the Committee, my learned friend is in agreement that I can place this on record. I personally did an inspection in loco at the home shortly after the incident and counted fourteen bullet holes through the kitchen door, nine through the lounge door. There were twenty seven big bullet holes on the interior lounge wall. I have a list of this which I will hand in. There were fifty what looked like bullet holes on the, small bullet holes on the interior lounge wall. There were eight big potholes in the interior of the kitchen wall, there were fifty plus bullet holes in the interior kitchen walls, there were three bullet holes into the sink, there were four through the kitchen table. In the main bedroom there were eight big bullet holes and thirty five small bullet holes and on the outside there were at least twelve bullet holes, indicting two hundred and twenty marks. Now just sorry, ...(intervention)
Mr Mthembu, you mentioned this firing, can you give an estimate of the length of the firing or if there was a lot or a little bit of firing immediately after you woke up and before you yourself were shot?
MR WILLS: Sorry, if I could just intervene once more here, itís been pointed out to me that Iíve made a glaring mistake and that refers to the injury on the Applicantís head. I indicated that it was on the left side of his head, itís actually on the right hand side of his head, thank you.
MR MTHEMBU: Maybe itís the way we were working together with Mr Msizi as we have ...(inaudible) complained that people were getting killed, the leaders were getting killed. That might have been the reason. I was the one who always insisted to Msizi that he must come and help us at Mandene.
MR MPSHE: What attackers you heard would come or come to attack Mr Shandu, what attackers were those? Did you think of thugs that were going to attack Mr Shandu, did you think of people from some place coming to attack Mr Shandu?
MR MPSHE: Now referring to the statement you made to the police when you were led by my learned friend, you said that what you said to the police is not true because you were afraid, do you remember that?
MR MTHEMBU: It was because police intimidated me because there was the people who came to fetch me and the statement that I have to make we were, I made the statement while in the car from hospital to the police station and thereafter they took me to the cells.
MR MTHEMBU: I did say that because I was afraid that they were going to harass me or torture me because in most of the cases when they investigating cases, they were intimidating people and in those days when they said they were going to shoot you, they were really going to shoot you.
MR MPSHE: Now in your affidavit - I refer members of the Committee to page 5 of the bundle - in your affidavit, the last paragraph thereof, you state that during 1992 there was a considerable amount of violence in the Northern Natal area and many ANC and Cosatu leaders and officials were killed.
MR MTHEMBU: On that day there were no other people who were attacked. This is what I heard when I came out of hospital but before I went to Shanduís place people who had been killed, there were over five of leaders, the leaders were over five. That is the reason why I was asked to go to Mandene.
"Whilst I admit I may have injured someone - now here comes the important part - I only shot in defence of me and the other occupants of the house".
CHAIRPERSON: I have certain questions which I would rather not ask and if you can supply the information weíd perhaps save a lot of time. Have you got a copy of the charge of indictment that is being brought against him?
MR WILLS: In fact Iíve been requesting that for some time from the Prosecutors at the Regional Court. The charge sheet has not been drawn up. It is simply, Iím told that the charges are in respect of attempted murder. I have, I think in my files I have an updated charge sheet, it has subsequently been changed but if you can bear with me Iíll see if I can assist.
CHAIRPERSON: Now in terms of our Firearm Act, machine weapons are classified differently from ordinary firearms and in the event of him applying for amnesty he would not be - if it was, if this weapon is, does fall into the category of automatic weapons, it would be a separate offence, a different offence from the ordinary offence of unlawful possession of a firearm and accordingly ...(intervention)
CHAIRPERSON: I think we ought to have more precise details as to precisely what heís applying for amnesty for. That is to ascertain the nature of the charge. I donít want to start asking him about the automatic weapon and the effect of it. There is a very detailed description of the weapon in the papers.
MR WILLS: Yes, thank you. Mr Chairperson, I can possibly answer that in that there is obviously by the evidence thatís been supplied, the evidence by the docket, the evidence of the ballistics specialist, thereís obviously the intention to charge and in respect of the more serious offence of a machine pistol. I apologise for not actually making that clear in the application but clearly that is what is intended. He is wanting amnesty in respect of the possession of the particular firearm which is classified as a machine firearm and if one looks at the ballistics report, my recollection is, is that it does work on automatic fire which certainly classifies it as a machine pistol.
RE-EXAMINATION BY MR WILLS: Mr Chairperson, may I request an indulgent. There is just one question that I omitted to ask the Applicant. It will take a minute. My learned friend has no objections, can I be permitted to do so?
MR WILLS: Now just around the time of the incident, the incident in respect of which Mr Mthembu is applying for amnesty, that is in September 1992, prior to that are you able to say whether or not you knew of Cosatu officials or ANC members having violent attacks directed toward them?
MR V I MTULE: Yes indeed, I am aware of too many incidents where the ANC and Cosatu members were being attacked and in some cases their houses were burnt down and lives were also lost in the process of which one of the victims was Ken Shandu.
MR MTULE: Yes, I know Msizi Mkunu as a Commissar in the military but he was later a commander of Umkhonto in Northern Natal by the time when the incident took place so he was a commander in chief in the office of ...(inaudible) security of the ANC.
MR WILLS: Now do you bear any knowledge of the evidence that the Applicant gave in respect of the instructions he received from Mr Mkunu to guard the house of Mr Shandu and in fact Mr Shanduís existence?
MR WILLS: Now turning to the actual event itself, that is the events of the morning of the 2nd of September 1992, Mr Mthembu has testified that you were in the house and we know that is in fact correct.
MR MTULE: I was fast asleep and I hear the storm of gunshots firing into the house of the room in which we were and the glasses that came up around my face made me to actually wake up apart from the noise of the gunshot that I heard when I woke up.
MR WILLS: Now in bundle of documents that I have been supplied with by the Truth Commission, there are statements from the police members who conducted the raid and they are emphatic to the effect that they knocked on the door and notified that they were the police prior to any shots being fired, can you comment on that?
MR MTULE: I vehemently oppose that statement made by the police as being the total blue lie. The only time and the only moment when I ever heard a gunshot that came through and the glasses that came through the window and thereafter the noise of a man who was saying Willem skiet, Willem skiet (Willem shoot, Willem shoot) -that was a command from outside.
MR WILLS: Now I showed Mr Mthembu some photographs which he identified as being taken of Mr Shanduís house. I would like you to have a look at these photographs. You will notice that there are, they are photographs which depict certain bullet holes in both the interior and exterior walls of the house. Are you able to tell this Committee whether those bullet holes were there before the attack?
MR MTULE: I must testify that these bullet holes were not in the walls before the attack, they only happened to be the holes in the wall after the incident, in other words they are a direct result of an attack by the police.
MR WILLS: Now youíve heard Mr Mthembu give evidence to the effect that after the shooting ceased, the occupants of the house were essentially flushed out and ordered to come out with their hands up, one by one.
MR MTULE: No, we didnít know who the people outside were except that I could only, as a person who also understands and speak fluent Afrikaans, I could only hear the voice of a man saying skiet (shoot) and it may be upon that assumption that one would assume that itís a certain koevoet operation. Thatís what comes into my mind I must say.
MR MTULE: In the first place I must say I was half dressed having only the ...(inaudible) with me and we were commanded to come out. The man whom I identified later as Mr Botha said, come out - put your hands in the air otherwise I shoot, otherwise I shoot, come out, come out, come out. Then we had to come out having our sort of arms hanging over like this, not like this otherwise he was not going to see them.
You could firstly come out with your hands and then he could - he probably grabbed me so to say right up here and he brought me down just to the floor and I had to lie down. When I laid down on the floor, just like this and ...(inaudible) had to put the firearm - it was a R5 that was brought before my head like this and he said Mr Mnjeni, watch out this one, if he moves just shoot. The R5 was just on top of the head right straight throughout the whole process.
MR MTULE: Yes indeed, Dumisani came after me. It was firstly Vincent Shandu then I came and to all of us the man by the name of Mr Botha used to say - come out otherwise I shoot, ...(inaudible) otherwise I shoot. It was a very hard command.
MR MTULE: I must say we were commanded to come out one by one until Dumisani came too and then Mr Botha grabbed him and then three of them, three of those policemen went inside with Dumisani and just a couple of minutes, it wasnít even two minutes, whilst we were outside lying on the floor they went inside with him and all of a sudden we heard Dumisani screaming, saying ... Xhosa, donít shoot at me.
And then we heard a gunshot, it was all over from there. It just became quiet and of course although I was not allowed to move and peep around but fortunate enough my head was lying using this ear so I could properly see Dumisani coming up, coming back with them whilst they were grabbing him just here - like this. They took him back to their vehicle. That was the only time that he was transported to the hospital so to say after having been shot inside the house.
MR MTULE: Yes indeed, I must say that during the course of interrogation the police treated me brutally, it was very inhuman and unkind in such a way that interrogation went through for almost eleven hours on that night and my lawyer too John Wills was denied the right to see me and during the course of interrogation they used to beat me, they used to make sort of unacceptable remarks about being Black. They said - "ek glo nie die Kaffir se idiologie, jou hare is kort" (I donít believe in the Kaffirís ideology, your hair is short) in most of the things that he used to say to me. When they went to the house they knew there were terrorists there, I must agree that Iím a terrorist and at the end of the day he had to make a statement and he forced me to sign it. He said if you donít sign the statement - jy sal ...(inaudible) netnou (you will ...(inaudible) just now).
MR WILLS: Yes. The statement that you made or that you were forced to sign should I say appears at pages 43 on our bundle. I see that the person who commissioned this statement is a person by the name of E J Louw and from the other evidence that is available to us in this bundle, it appears that this same Mr Louw was involved in the raid, is that correct?
MR MTULE: Attack could come from all angles where enemies are. Those political parties that were anti-liberation movements, like the ANC i.e. we have heard incidents where the IFP so to say, was attacking the ANC activists, members, whoever and also on the other hand, of course it goes without saying we were expecting attacks from the security forces themselves who also did testify to me that when they came by the house they knew that there were terrorists but we were not aware of the security forces to come into the house, we were just expecting attacks from whoever.
MR WILLS: Iím sorry Mr Chairperson but I was distracted at the time of your question and I omitted to get the question and the answer. I wonder if I couldnít ask the interpreter just to let me know what it was, or yourself.
MR MPSHE: Thank you Mr Chairman. Mr Chairman, I have no evidence to lead safe to state that only one notified victim is here present today, Mr W J van Schalkwyk as per the sheet. Iíve spoken to him during the lunch break pertaining to legal representation and he said he was not aware thereof but he has been served with all the necessary documents and the document informing him of the availability of legal representation. He indicated to me that he did not understand that document and that is why he did nothing about the issue of a lawyer. He indicated further to me that he did not necessary to testify but if the Committee would permit it, he would appreciate it if he be given an opportunity to secure a legal representative. He is here in present to confirm if the Committee so wishes.
CHAIRPERSON: That was a week later, on July the 15th you were told. And I understand from Mr Mpshe that you havenít engaged any legal - applied for legal assistance despite the fact the original notice said that if you were financially unable you could apply to the Legal Aid Board.
MR WILLS: Mr Chairperson I canít object, Iím committed to the full disclosure of the process and as a result whilst it may be inconvenient I would not oppose an opportunity given by Mr van Schalkwyk to obtain legal representation.
MR MPSHE: Mr Chairman I also cannot oppose Mr Chairman because he will be exercising his rights but I would suggest, in the event of the Committee so decides that he get a legal representation, this matter be treated like the one we postponed this morning.
CHAIRPERSON: ... no sound. .....possible to avoid this sort of thing happening and it seems here that the original notice given on the 8th July said the wrong place and the wrong date and I canít understand how that mistake could have been made. The contact is with somebody in Durban which is not the easiest thing for somebody stationed elsewhere and I think steps should be taken in future to make contact with implicated or concerned parties as soon as possible to explain to them. Thatís if even months before - as soon as it is known that a hearing is going to - that an application is going to be held so that adequate arrangements can be made rather than just a few weeks before and much as I regret it, I think that we will be obliged to adjourn this matter. Do you agree? Is there any possibility of obtaining legal advice this afternoon?
CHAIRPERSON: In the course of his duty, while on duty and it seems to be certainly a matter where the Deputy State Attorney would have acted on his behalf, not in a case that necessitates an application for assistance in the legal ...(no sound) This is not a case that has to go to the Legal Aid Board, is it?
CHAIRPERSON: We will adjourn this matter but I would suggest that Sergeant van Schalkwyk be taken by somebody who has full knowledge of what has happened, to the Deputy State Attorneyís office here, tell him what the position is and it may be that after consultation, the Sergeant will not want to take the matter further, maybe he will but they can notify and you can notify us tomorrow morning what the position is. If some agreement can be reached well and good, if not it will adjourn to another date so you will have adequate time, weíre not trying to rush you Sergeant. I donít know what particular aspects you want to discuss with your lawyer but I think you should be given legal advice as soon as possible.
MR WILLS: They - first of all the Applicant is in fact indigent. The witness assisted in bringing him here from Sindumbele this morning. The Applicant made his way from Matubatuba for Sindumbele yesterday. They are not in a position where they have got accommodation overnight and so the - if they were required to be here tomorrow, it would be quite difficult but possibly I can come - Iíll consult them and see - what I thought might be ...(intervention).
CHAIRPERSON: I think we should make arrangements to provide accommodation for them or contribute their accommodation, when I say we I mean the TRC. What I was going to suggest is if you could perhaps keep in touch with the Deputy State Attorney. If nothing is going to happen which is the probable outcome, then let them go home.
CHAIRPERSON: If, however - no I think, the more I think about it there it would not be necessary for them to be here tomorrow. I cannot imagine if the Deputy State Attorney does advise the Sergeant that he should be represented, obviously the representative will want to consult with the Sergeant, will want to read the papers and will not be ready to go on tomorrow. The only circumstances in which we can go on tomorrow is if the advice the Sergeant gets is to let the matter rest for the present time and does not intend to take any further part, in that case we can dispose of the matter but I think we cannot expect certainly, to be unreasonable to expect them to be in a position to proceed tomorrow so I think you can release the Applicant and his witness. We will adjourn the matter merely to cover the position that they may not want to lead further evidence, they merely want to say something or - so weíll adjourn it until 9 oíclock tomorrow morning. Were you planning to stay in Pietermaritzburg Sergeant?
CHAIRPERSON: Well letís leave it. I think you can make the arrangements if the Deputy - well again, if the Deputy State Attorney is merely going to send someone here to make formal submissions on your behalf, you neednít be here either. Itís only if youíre going to give evidence that you will be required to be here and itís a matter you can arrange with him.
CHAIRPERSON: And I think if you could, just in the hope that we may be able to dispose of it if Mr Mpshe could arrangements and Mr Wills can perhaps tell such as to where he is to be found, heís not very far away is he?
CHAIRPERSON: And take him now and see what can be done but I want you to make it clear to the Deputy State Attorney, we are not putting any pressure on him to proceed tomorrow unless after he has spoken to the Sergeant he decides that it can be disposed of easily tomorrow. He wanted to obtain further information, if he wants to consult further we will certainly grant him an adjournment to do so and he need not be represented if he merely notifies us that he desires an adjournment, the matter will be adjourned. You can tell him that, thank you. We will now adjourn till 9 oíclock tomorrow morning and I hope Sergeant you get things sorted out.