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Type AMNESTY HEARINGS
Starting Date 30 July 1997
Names MAFOEKA ANTHONY NZIMANDE
Case Number 3095/96
MR WILLS: Thank you. Mr Nzimande, you have also been convicted of the incident that occurred, that we have been talking about today, on the 26th of September 1992 and, in that regard, you were convicted of nine counts of murder and two counts of attempted murder. Is that correct?
MR WILLS: You have heard the evidence of Mr Poswa in relation to the events, both leading up to the incident on the 26th of September and Mr Poswa has described what happened on the 26th of September. Do you confirm those events in so far as your recollections are concerned?
MR WILLS: That post mortem is at page 113 to 118 of the record, Chairperson, committee members. Now, if the committee will just bear with me. Now, why did you participate in this incident on the 26th of September 1996, 1992?
MR WILLS: Now, you made a statement in, which you attached to your amnesty application and that has been handed in as and listed 35A. The statement that you assisted in the translation with earlier. Do you remember this statement?
MR NZIMANDE: It might happen that some of the things inside the letter are true and some might not be, because I wrote it while in prison and I did not have anyone to help me to relate the story, but I believe most of the things are true, not everything.
MR WILLS: Now, you say in the statement that after the death of Spatelie Poswa, you stayed in the Richmond area for two weeks, but, importantly, you went to the Magistrates Court in Richmond to try and get the magistrate to assist in the resolution of this problem. Is that correct?
MR WILLS: Now, Mr Poswa has given evidence to the effect that the violence started in 1991 and he has basically said that it was very difficult for an ANC member after, in fact, 1992 to reside in Gengeshe. Do you remember that evidence?
MR WILLS: Sorry. Reference has been made to a, the camp, to a camp and Mr Poswa has described how when the group of ANC supporters arrived at Gengeshe on the morning of the 26th of September, the IFP members were at a camp. Do you recall that evidence?
JUDGE WILSON: As I understand the use of the word "camp" in this context, it does not mean "camp" in the sense that it is usually used in the English language or an area where people can come and stay. It means, rather more, a fortified area where a group of people are staying.
MR WILLS: If the committee would just bear with me. Yes, just one final issue. You heard me questioning Mr Poswa at some length about the deceased persons and those persons who you were charged in respect of attempting to murder the two that were, you were charged with attempted murder. There were nine deceased persons and two people who you were convicted for attempting to murder. Do you recall that?
ADV MPSHE: Did you know that, perhaps, there was a policy by the ANC that when you are, you, as ANC members, are attacked you must attack back? Did you know this or you did this out of your own volution?
ADV MPSHE: In your statement, which was translated, I refer members of committee to 35A, his statement, you made mention of the fact that you went to a magistrate in Richmond. Do you remember the magistrate's name?
MR NZIMANDE: We were new in that area. We went to report the matter to the magistrate that as we were staying in Richmond we have, facing some problem in that area, because people are burning our houses and also taking our belongings. However, I do not know what was his name.
MR NZIMANDE: As we were asking them to go back to the IFP people to come back to Richmond so that we can sit down and talk, they said when they arrived at Gengeshe they came with the answer that they are not accepting our request.
"Every weekend we buried our supporters and they were saying that they were going to finish us off.".
MS KHAMPEPE: Mr Mpshe, may I interpose. Does it mean that when you were at Ndaleni the alleged members of the PAC, sorry, of the IFP from Gengeshe came and continued to launch attacks against you whilst you were at Ndaleni?
ADV MPSHE: Part of the mandate or the mission of the Truth Commission is to go to the root or the cause of some of these things. In your own words, can you tell us what the cause was of all this happened in Gengeshe?
MS KHAMPEPE: ... Becker Poswa. I am sorry. All the questions that I have put to you, in fact, relate to the injuries sustained by, the injuries sustained by Mr Becker Poswa. Did you participate in the killing of Mr Becker Poswa?
MR WILLS: Now, you referred, in answer to a question from the evidence leader, that whilst you were staying at Ndaleni you were burying people and one of the committee members asked you whether or not these people were originally from Gengeshe. Do you remember that?
MR POSWA: No, we were not free. On the 12th I was at home. I left at about half past three, going back to work. When I arrived at home in Claremont where I stay, I got a call telling me that my brother's son has been shot. I asked who shot him. They said he was shot by Keswa Poswa. On the following day, I could not go on that particular day, because it was late at night. The following day myself and Armond Poswa and Vimba Poswa, we drove to Richmond. We arrived in Richmond, we found my brothers sitting at the garage and I asked what happened. They told us that the son has been shot and been taken to a mortuary. Vimba Poswa and Fana Poswa, Armond Poswa left to Gengeshe. Only the IFP people were left behind, Zimboeza and others. They were trying to go and talk to them to find out the cause of his death, the reason why he was shot.
They did not come with an acceptable answer. After that we went to the Richmond Magistrate and we told, reported the whole case. No actions were taken by the magistrates. On the 11th, it was Saturday, some helicopters came, there were three. They searched our homestead. I was present on that particular day. It was a rainy day with some few showers. They wanted to get into my house, they wanted to get with their shoes on. I refused, because it was muddy. However, they managed to get inside and search it. They could not find anything in the homestead. After that we talked to Mr Matthyson, even if I cannot pronounce his name very correctly or well. His nickname was Kongolo.
He said when we were telling him about the burial of the, of our son he said he does not want Comrades and he is going to shoot any Comrade who is going to pass by his gate. Therefore, we had to bury our son at Ndaleni graveyard. This son I am talking about is my brother's son by the name of Spatelie Poswa. We buried him at Ndaleni. On Sunday, the following day, early in the morning, Kewe Umgoukwela and Tswetswe arrived. They met our brothers at Richmond at Flower Garden. They were coming to talk peace with us. Indaba Zimboeza who was the one who was supposed to come and talk to them, unfortunately, he was not there. Therefore, we could not talk to those people, because the relevant person was not there. They had to go back to collect the relevant person. We stayed there until late.
On the following day we waited, they did not come. After that I, personally, visited Poswa and Armond Poswa and Timothy Poswa, who is an Induna or headman in that area. We went to report the matter to the chief at Bulwa. That was a chief on that area, of Gengeshe area. We were trying to get him to come and reconcile the community. After the chief have heard about this, that the Comrades are being killed, he said, he promised that he will come on Tuesday. He said we must wait for him at the Magistrate's offices. We sat at the Magistrate's offices. He did not come even up till today. We talked to the chief himself, personally, with his secretary writing everything and we were at the offices in Shlanganana, Bulway.
After that we tried to go back to remove our belongings, possessions at home and then they started beating us or attacking us. I managed to took out some clothes, furniture, wardrobe. I could not carry my kitchen furniture. Even my house, which I bought in 1990, at the cost of R35 000,00 was destroyed in that way. That is what I can say. What we, some things that we heard was that when people were leaving Gengeshe, they were told they must pay R500,00. If they were trying to run away from Gengeshe, the IFP supporters said you have to pay R500,00 and then you can leave after paying it. Number two Indian people died who were coming to remove people in that area. They were coming to remove their property. They died there with their lorry which was burnt. If you are an ANC member you could not even leave the area that is Gengeshe. Our children and everything were left behind. That is all I can say.
MR POSWA: I am referring to the chief who was in charge, that is Chief Dlamini. Even if I do not know his name he took over from his father by the name of Kosingdaba Dlamini. This one was the one who was successor to Vusie Dlamini.
MR WILLS: Thank you. Just looking at your own personal position, the inference of your evidence is to the effect that you also left Gengeshe on the, shortly after the 12th of the, of April 1992. Is that correct?
MR POSWA: I rented a place in Claremont. I rented that place, because I was working in Durban. So it was convenient for me to stay, to rent a place so that I could only stay there during the week and during the weekend I can go home.
ADV POTGIETER: Did you have any idea that this incident was going to happen or that your brothers, your family was going to try and go back to their homes that were, that they left behind in Gengeshe?
ADV MPSHE: Mr Chairperson, committee members, during the lunch break I had a very brief consultation with the victims who are herein present and there was an indication that one of them would like to say something, but I did not consult fully with them. May I make a request for ten minutes break ...
ADV MPSHE: And he is actually victim number eight on the list of victims, Mr Chairman and members of the committee. Mr Mthembu, is it correct that you have been in contact with the family of the Poswa's?
MR MTHEMBU: At Gengeshe violence erupted between the ANC and the IFP. There were divisions between the two organisations. They hated each other, therefore there was always conflict between the two organisations. We heard while I were at home, lower Umkumazi, we heard that Poswa's son by the name of Mandlenkosi has been shot. While we were trying to go to the place to see what happened, we were told that the Poswa family have left the area. Only the IFP members are staying in that area. After that we heard from the IFP that all young men should go to Indaba Zimboeza Poswa's area, who was the Induna at that time. I was at home myself. I said it should not only be children, why should it be children. Is it a war or what is going on, because this is a family matter within the Poswa family.
However, the headman said they should come. The young men listened. They went to the area and my son also accompanied them. They were there to guard his family, that if ever he is attacked, they can protect him. After that I left the area to stay in Durban, because all the people have left the area and I went to stay in Pinetown. One particular day we listened to a radio and we heard that people have been killed at Gengeshe. It was another ten people who were killed. I was also listening, because I did not know whether my son was involved. We were listening, on the second day they mentioned my son's name, that he died on that particular violence. That his name was Dumisani Mthembu.
MR MTHEMBU: This hurt me a lot, because he was about to be married, but I blame the political situation, because before this political activity in the area, we were living in peace. There was not an IFP or ANC, it was a peaceful situation. Therefore, I blame politics and the organisations which had caused the death of my son.
MR MTHEMBU: I knew that we were not enemies. It was only the politics which infiltrated the area and at the moment, I will say, we have reconciled in the area. People at Patene and Richmond have reconciled and even at Gengeshe and I would like to see peace in this area, because we are not enemies, but the organisations made us to be enemies. Although I lost my son I will still think we should be reconciled.
ADV MPSHE: The two applicants, whose evidence you listened to today, they are before this committee, particularly, for amnesty and they are also asking for forgiveness. What is your attitude towards that?
MR MTHEMBU: I do forgive them, because I knew we were not enemies. It was politics that caused the animosity in the whole world and even today when we talk to them, they are so nice to us and they also wish for reconciliation.
JUDGE WILSON: I thought, I may have misunderstood you, I thought you said at your, in your beginning of your evidence that when you went to find out what had happened, you were told that the Poswa family and the others had left the area, that there were only IFP people left.
MR MTHEMBU: Yes, I met one of, a young boy from the Poswa family and I asked him, he is by the name of Mandlenkosi, I asked him where were they, where are they. He said they ran away and, therefore, I did not go on to that, towards the area, I just turned back and went back home.
JUDGE WILSON: Mr Mthembu, I would like to express the vies of the committee, that we sympathise with you in your very tragic loss and we admire this forgiving approach that you have adopted and respect you for the honesty that you have shown in coming to tell us all what your feelings are today. We would like to thank you very much for all you have done here.
JUDGE WILSON: Sorry, something I want to say before you address us. That we have, I have arranged to obtain the, sorry, no, no, it is in the other case. No, sorry. I am arranging, I hope, to obtain any plan that might have been handed in at the trial. I think there is some reference to it. My secretary is seeing it is, to give us a better understanding of the area, of the district and if we do find it, we will notify you, but I think you already know the district. You have the advantage of knowing what it looks like which we do not and we thought we would like to know something about that, so.
MR WILLS: Mr Chairman, members of the committee, I submit that this amnesty application should be successful. I submit that both applicants have made a full disclosure and, in addition to that, I submit that they have satisfied the committee that the act was committed with a political objective. Turning to the actual political objective, I refer to the criteria that have been outlined in Section 23 of the Act, the motive, initially. I submit the motive is quite clear. Their motive was, as an organisation, to have the right to go back to their homes and whilst this was not expressed in so many words, I submit the inference, the only inference of the evidence is that, not only did they want to go back home, but they had the right to go back home and to have, to belong to the organisation of their choice and enjoy free political activity at the place of their birth.
Referring specifically to the context, I submit that all the evidence amounts to the same, in that, this was not an attack, in the true sense of the word, and I refer, specifically, to Section 23(B). My submission is that the context shows that this was, in fact, a reaction to a political event. It is clear that the reason for the ANC part of the Gengeshe community having to leave was that they were not members of the IFP and, with respect, they were forced to flee. This whole incident resulted as a reaction to that incident and, specifically, that was the incident referred to on the 12th of April some months before the incident.
JUDGE WILSON: I think what bears that out even more, there might be some uncertainty what caused the killing, is the evidence that after they had left, their property was all destroyed which was, I think, is a fair indication that there was an intention to eradicate them completely from the area. It was not just a personal thing, it was that they wanted them, to drive them out.
MR WILLS: Yes, indeed, Mr Chairperson. The legal and factual situation referring to 23(C). There is no doubt that we all know and concede that this was a very serious act and one does not want to underestimate the seriousness of the act. Nine people were killed and there was an attempt made on the lives of an additional two people. However, I respectfully submit that the members of the community who took this action were left with little alternative. There has been evidence, which I submit, should be accepted that they did make attempts to try and resolve this peacefully. Attempts were made by going to the police, attempts were made by going to the chief of the area, attempts were made by going to the magistrate of the area and it seemed that these were all fruitless.
Now, the, if I refer the committee in this regard to the Investigators Report, which basically corroborates the version that the individuals did go, in fact, to the police and complain about these incidents and, particularly, if one refers to page 45 of the bundle, there are the CR's. The, firstly, the Richmond CR118 of 9 of 92, murder, two counts and arson. The further docket, Richmond CR984 of 92 and the third one being the Richmond CR49 of 4 of 1992, which also indicates that something was done and a particular Keswa Poswa was arrested, but, indeed, he was eventually acquitted.
The evidence which was particularly alarming and, I submit, is an important facet of the evidence which underlies the drastic position that the ANC community were in in Gengeshe, was the evidence given by the first applicant later on in his evidence in answer to questions by my, by the evidence leader and that was that when people in the IFP camp were, in fact, arrested, he was referring to the incident where the family member at the forestry area was attacked, he said he attended at the police station and there were weapons which he, himself, saw in the police station and his evidence was to the effect that these people were more or less immediately released and that the same weapons, that he personally saw in the police station, were found or seen by him on the date of the incident on the 26th of September 1992. In circumstances like that it clearly, with respect, must be seen that they were in an enormously difficult position. They were living in, what must be described as enormous inconvenience, having been rooted out of their homes and they had little else that they could do.
In addition, referring specifically to the criteria in 20, Section 23(D). The objective here. It was clearly directed against political opponents and, I submit, it was no, it was discriminatory in the sense that it was only political opponents that were actually attacked. In this regard I think the evidence of the witness in the criminal trial and that is Yesim Mbanjwa is extremely relevant and I refer the court to page three and page four, the bottom of page three, the last paragraph of her evidence and, incidentally, she was found to be an extremely good witness by his Lordship Levinson in the matter, and I would just like to quote that bit of evidence in the record. It is the bottom of page three.
"Yesim Mbanjwa, an elderly morning, said on the morning of the 26th she was asleep in her home. She said that gunshots went off. She then woke up and she looked through the door. When she saw four people appearing there, a person by the name of Tutu told her to go into another hut. She said to Tutu, she said that Tutu was one of the four people and there was another person whom she identified as Mantutu who, it is common cause, is accused number six.".
Now, in those circumstances, it seems blatantly apparent that had there been an intention on the part of the second applicant or any of the applicants on that day to take the life of this person, it would have been quite easily possible. The proximity of this witness to the attackers at that stage was extremely close. People were close to the door, close enough to talk to her and yet no harm came to her and the evidence is to the effect that no harm came to any of the women or children of the Gengeshe area on that day.
On the other hand, the attack, it is my submission, was directed at what must be, with respect, be accepted as political opponents. I, it is my submission that one can take the, one can accept that all of the deceased in this matter were, in fact, members of an opposing political organisation and I submit that the evidence given by the accused in this regard, sorry, the first applicant in this regard, was relevant. He, in going through the list of the persons indicated that most of the people were IFP members, but his honesty was such that when he got to the victims in count eight and count nine, he said, he openly admitted to his, possibly to his disadvantage, that he did not know those people in count eight and count nine. We have now, through the integrity of the victim, Mr Mthembu, been able to establish that, yes, count nine, the victim in count nine was, in fact, an IFP member at the time.
I think it is not, one does not need to rely simply on the evidence of the first applicant in this regard. If one refers to the bundle again, page 125, the witness Konduwe Dlamini says that her deceased husband, Filapie Dlamini, proceeded to Poswa's kraal where there was a camp. The witness, Ivy Nele, on pages 133 and 134 of the bundle, says that Mbovane Nele and his son, Tutu, went to the camp at the Poswa's residence. On page 142, Tula Bhonwa Poswa, who was one of the victims of the attempted murder, indicated, and I quote,
And at 146 he indicates that the local males had gone to a camp. Now, it, I think it can be clearly established that all of these males who attended this camp were there for a specific purpose and, clearly, there had to be members of a particular organisation if they were present at that camp. As regards the political objective, I would like to refer the court, the committee to the judgement by Levinson J on sentence and, specifically, to page, I think it is 31 and the, from page 31 of the record that we have received and I think that the finding of his Lordship Levinson J has been proved to be correct in the evidence that is before the commission today and I would like to read from the last paragraph,
"It is also relevant to quote Levinson J to take into account the political situation that prevailed at Gengeshe from about April of that year. It appears that the Induna at Gengeshe ...",
"It appears that the Induna at Gengeshe was the line to the Inkatha Freedom Party and, according to the evidence, he objected strenuously to the recruitment of people in his area by members of the ANC. According to the evidence, this appears to have been at the root of the violence that occurred from about April.".
Finally, as regards the political motive, I submit that the findings of the investigator at page 45 of the bundle corroborates and supports my submission that a political motive exists and I quote from the last paragraph on page 45 where the TRC investigator finds
"The murder and arson committed by applicants was, in my opinion, a revenge attack which and, I emphasise, was indeed political, because of the fighting between the IFP and the ANC.".
My final submission is that the applicants together with the families of the deceased persons, in my respectful submission, are all victims and they are victims to a political situation that is untenable or was certainly untenable. They were forced into a position where, it is my submission, that they acted and did things that in normal circumstances, had the political situation not been as it was, that they would not have, that they would not have done and had the society not been so politically divided I am confident that the two applicants would not be here today and neither would they have been tried. Those are my submissions. Thank you.
MR WILLS: I submit that that telephone call was an overt threat. That telephone call must be seen in the context of what had occurred, not only when, not only as a result of the incident that arose where the ANC community left Gengeshe, but also in the light of the fact that certain people who had left Gengeshe and gone to live as far afield as Pinetown and Gleeblands had, in fact, been attacked at those places and killed. Now, I submit that, in a sense, one could see and one would have to take this threat very seriously. The individual who made the telephone call was widely regarded as, by the ANC community as being responsible for the attacks and being directly involved in the attacks, that is Becker Poswa, his name has been mentioned frequently today. I submit there that, again, that unless some form of action was taken, the individuals at Ndaleni may well have been eminently attacked.
ADV POTGIETER: Does that assist at all with your submission or does it submit your, does it support your submission that what we are dealing with is a political, politically inspired incident and not a personal fight?
MR WILLS: Yes, I submit, with respect, that it does support that very much so. If it was, again, if it was just a family squabble and a revenge attack, then one would have expected the first applicant to have, possibly, grouped together with one or two friends to have taken his revenge on his own. Possibly, he would have simply done it on his own, but maybe with some very close relatives, but the fact, the evidence is and I think the finding of the Supreme Court in this matter was that there was some 50 people. Our evidence is to the effect that there were approximately 30 or 31 people involved in the attack, but that is such a broad number of ANC supporters participated in this, seems to me to indicate that it went far beyond the bounds of a personal family revenge.
MS KHAMPEPE: Mr Wills, I concede that this attack was definitely not indiscriminate, but what extent should weight be attached with regard to the manner in which some of the victims were killed like Mr Gillie and Mr Becker Poswa?
MR WILLS: I have to concede, Madam Committee Member, that those were, certainly, atrocious murders. I cannot, in any way, attempt to justify the extent of the brutality of those murders. I, all I can say is that their, this was a full scale fight that goes on, that went on, that there were a number of people who participated in the actual killings itself and, clearly, in respect of the first applicant, there can be no finding, with respect, against him for that type of activity, in that he is, clearly, was just armed with a firearm. He simply shot one person on that particular day.
MR WILLS: ... that there were more than one person. In fact, she said there were four people who participated in the assaults and killing of Mr Gillie. Clearly, it would take more to find out exactly what the second accused did, but I do not think, it seems clear that those injuries cannot be attributed to him only. I also submit that if one looks at the post mortems as a whole, the persons who received the worst fates were Becker Poswa who as, you rightly indicated, was decapitated and received multiple injuries and Gillie, with respect, he seems to have also met a similarly horrific fate and that does also relate to the fact that, well, the evidence that it was these two individuals who were seen by the ANC community as being the most active in the oppression of their members. So, I must submit that it must be related to the intensity of anger against those.
JUDGE WILSON: Can you not also rely on this, that these injuries are, in fact, almost typical of what is found in cases of, so called, mob violence, which evidence has been given innumerable times as the effect on otherwise decent people when they get involved with a group that is committing, what can be called, a mob attack, that this is typical of what happens, they all go on.
ADV MPSHE: Thank you Mr Chairman, members of the committee. Mr Chairman and members, I have nothing to gainsay what my learned friend has said and I want to believe, as part of my duties, it is to put before the committee any material or information either for or against the application and, in doing that, I want to refer the committee, once more, to the transcript, the record, page 32, that was referred to by my learned friend, particularly line four to five which I shall quote for convenience where the Judge said,
"In considering a proper sentence I have fully, I have been fully conscious of these political pressures on the accused.".
Quotation closed, but having said that, Mr Chairman, members of the committee, I would like just to request the committee, when considering its decision and what I am going to say has been alluded to by the committee member, Ms Khampepe, that one of the criterias that are laid down in the enabling Act should be taken into consideration, particularly under Section 20, sub-section three, the criteria number F, I need not belabour what is said therein and much has been said about that by both my learned friend and Ms Khampepe. Thank you.
JUDGE WILSON: We will now adjourn till nine o' clock tomorrow morning. We will not be proceeding with this matter tomorrow. We will take time to consider our decision and then it will be notified or publicised in due course.