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Type AMNESTY HEARINGS
Starting Date 10 February 1997
CHAIRMAN: Before we commence with the proceedings this morning for the benefit of victims, dependents and relatives of victims, I would like to inform them that we have with us two representatives of the RNR Committee, namely Ms Sitanda Msomi and Nomsa Gumede. They are here to render such assistance as they can to the relatives of people who were victims or their dependents. You will find them in the hall if you need their assistance.
MR BRINK: Mr Chairman, I saw yesterday that the application form of Mr Madlala had been distributed to you. I assisted him in completing it yesterday afternoon during the lunch break and it contains all the basic information necessary. Could I then please ask that Mr Madlala be sworn in.
MR MADLALA: During that time we were staying at Nada, at Chief Shiyabante Zondi's place. Because there was another gentleman known by the name of Lawrence Zuma. During that time Chief Shiyabante Zondi told us that we should join the Police Force. During those days he took us to Maroa House near Edendale. There we were asked details about ourselves and we gave our details and we were all members of the IFP. After that we went back home. We stayed at home for about a week and after a week we were told that we were supposed to go for our training. We left by buses to the training centre. It was in Cape Town at Koeberg. We left by buses. We were all members of the IFP. There was no one belonging to the ANC. When we arrived there we were put in groups and we were taught lots of orders and laws and they explained all of them to us, that if you arrest someone who has broken the law you must do this and this and then afterwards at about past 11 we were taken to march. After two weeks
after we arrived in Cape Town, one member came from Maritzburg from a Security Branch. That member was Mr Webb. Mr Webb came to Cape Town by helicopter. When he arrived there he told us that things were bad at Maritzburg. People were killed and those people were IFP members who were killed. We were shown video tapes and we saw people who were being necklaced by tyres and we saw houses were burnt down and people were killed. We saw all this in a video tape. And all those people who were being killed were IFP members. Then we were told that we were supposed to finish our training soon so that we go back and fight UDF and ANC and we were told that UDF were members of the ANC, or they were sent by ANC that they must overthrow the Government. We were told that we must come back to Pietermaritzburg and kill everyone who belonged to UDF or ANC and we were given guns. We were taught how to shoot and we were taught how to march as well.
After six weeks we came back from Cape Town to Maritzburg. When we arrived in Maritzburg we were put at Umbali Railway Hostel. We didn't stay there that long, we were taken to Oriep(?). There was a huge riot station there. That's where we were taken. We arrived there and Captain Eugene Terblanche was the one who welcomed us. He told us that since we were from Cape Town we were supposed to work here in Pietermaritzburg like we were taught in Cape Town. We mustn't be scared of anything and we must harass ANC, and if it comes to a push we must kill them. We mustn't be scared because all those cases were going to be over. He, Mr Terblanche, was going to put those cases aside. And we were allocated to secure IFP prominent people or to safeguard those houses.
After that we were stopped doing that and now we were given police vans. All these things were happening and when we were meeting people who were meeting ANC sheets we were supposed to kill them or to harass them.
It was like nothing. Also we were working at Hammersdale and we were killing people there and after a person has been killed, Captain Eugene Terblanche was the one who was there first before anyone could be there. We also worked in Greytown, Richmond, doing the same job. And also here in Maritzburg, also in C-Vale.
On the 24th February we received a message that we must go and safeguard a meeting. That was an ANC meeting. It was going to occur at Noshesi area. We took a police van, we went there and at Noshesi. When we arrived there we found supporters of ANC and they were marching and singing, toyi-toyi and we realised that as they were singing and marching they were also naming IFP members and we go angry at that because we were IFP members and we didn't agree with their songs. That's where we started as well toyi-toying and then other people who came to see Mr Harrington, who was the guy who was looking after the group which we were working at. They told him that what we were doing they didn't like it.
Mr Harrington told us that we must stop doing that and he told us that the ANC wasn't happy. The meeting went on. After that meeting we left Noshesi, we passed Nateni. When we arrived at Dambuza, just before we arrived at the railway lines, we saw a group of boys. If I am not mistaken they were 15. All those boys who were there they had ANC T-shirts. Some of the T-shirts had just President Mandela's photograph. Some of them Sisulu's. After that I saw a car
stop and Erasmus got out from that car together with Mr Harrington and they said to us we must go and search those boys. We went, all of us, no one remained at the van. We all went to the boys. We told them to stand up; we started searching them. When we were searching them, the one I was searching, when I asked him his surname he told me he was Mkhize. There was no conflict between me and him because Mbongeni disrupted me. He told others that these policemen, we must shoot them and we must kill them like we killed the IFP people at Shange. When I heard that this boy is saying this, I got angry because I remembered that there were a group of IFP people who were killed at Shange. Now I told Harrington, I said to him, here's this guy now confessing that he's the one who was involved at Mbongeni's killing. Now we realised that he was hard and then Erasmus and Harrington arrested him. They put him at the back of the van. Harrington came with us inside the van, at the back of the van, and we didn't close the back door, and we were ready for any action.
When Harrington got at the back of the van we went to Georgetown. When we arrived at Georgetown Mbongeni was busy screaming, asking where he was being taken. Erasmus stopped the van and then he came at the back. He started harassing Mbongeni. He hit Mbongeni. He told Mbongeni to keep quiet. After that he asked us what we wanted to do or where we wanted to go. We explained to him that it was now late and we were about to go back home. It was fine for him if he can take us back home and take others who were supposed to go to work. That's what he did.
He started choking Mbongeni by his belt. At that time the van was mobile and we were busy asking him, are you the one who wants to kill us, the IFP members, why do you want to kill us? There were only a few people who didn't know that we were IFP members, even though we were special constables. We travelled and Mr Jama was being assaulted, Harrington was choking him using his belt. That's where I saw a diary. This diary had names. Names of the people, IFP members. There was a name Mbalazi Vezi. Mbalazi Vezi according to my knowledge was an IFP prominent member at Richmond. And there were also names of the houses which were supposed to be burnt.
At that time Harrington was asking what was on the diary, was asking Mr Dhlamini, who was another member who was arrested together with me, even though he has now been released. What I cannot tell you is that I don't know what happened to the diary eventually, because I was sitting at the back of the van and I was holding the door.
We arrived to Elandskop. We stopped somewhere at Elandskop at Gqwanamu near the bottle store. That bottle store belonged to Mr Gqinamu. Harrington and Mr Erasmus and Mr Dhlamini, they got off the van. Immediately after they got off Mr Jama tried to grab the gun from Mr Dhlamini. He couldn't and Mr Harrington caught him.
When he caught him he came with him back to the van and we put him at the back of the van alone; we closed the back of the van. Erasmus now told us that he was thirsty, he needed something to drink, something cold. We told them that we didn't have money, but we can go and buy cooldrink for them at Mr Bengu's store. We took the van; we left them there. Mr Dhlamini was also there at the back of the
van. We went to the shop, we took the drink, we came back. We travelled about 2kms from the bottle store to the area where we left Harrington and Mr Erasmus. When we got back we gave them the cooldrink.
At that moment Mr Erasmus said we must kill Mr Jama. As he was saying this, all of us police constables, we wanted to kill Mr Jama because Mr Jama was an ANC man and also he confessed that he was there when IFP members were killed. So we all agreed that he must be killed. No one refused or denied that. All of us, we agreed that he must be killed. And then Mr Bengu said he is going to show us the place where we can kill Mr Jama so that they don't discover his body soon. We got into the van.
Mr Bengu and Mr Erasmus got in at the front of the van so that he can show Mr Erasmus where to stop where we can kill Mr Jama. We left that bottle store for about 5km and then we turned to a bush nearby. We travelled in the bush and then we stopped somewhere. When we stopped there Mr Harrington took Mr Jama out. When they got outside Jama fell and then he started running. Mr Harrington ran after him. I ran after them too. We were trying to catch Mr Jama, myself and Mr Harrington. That's when Mr Harrington took out his gun and aim at Jama. At that time he wanted to give me the gun that I must shoot Jama. Then Harrington said no, don't be a fool. If you kill this person using this gun when they discover this body they will discover the bullet and they will realise that it was our gun that shot him.
Later Mr Jama couldn't move at all. Mr Harrington said to Mr Dhlamini, Mr Dhlamini must give me his gun because Mr Dhlamini had a (indistinct) gun and he said to me I must shoot Mr Jama. I told Mr Harrington that no, I can't do that because he is already dead. There is no need for me to shoot him.
Mr Harrington said no, it might happen that he is just unconscious and he can regain consciousness and he can name us. That's when I shot Mr Jama. Of course I had this will of killing Mr Jama. Because I wanted him to die as well, to follow those people whom he killed. It was IFP members; that's when I shot him. Mr Harrington took branches from the tree and put those branches on top of Mr Jama's body. We left. Mr Harrington was at the back of the van. He had a branch with him and he was wiping the wheels of the van so that people cannot realise that it has mud. It has been somewhere in the bushes. Mr Harrington got off the back of the car when we got to the main road and when we arrived at the first stop we stopped. That's where I was supposed to get off. Mr Bengu and Mr Dhlamini as well.
We got off and Mr Harrington got off and told us that now that we have finished what we have done, we mustn't tell this to anyone. Whatever happened belonged to just us. We've killed this person who did all these things at KwaShane and who is also an ANC member. Then they left, Mr Harrington and Mr Venter.
at work that it wasn't all of us, and I didn't even think that maybe some of them were arrested and we went to David's house in Church Street, Maritzburg and they told me that we killed someone and I denied that at first because I didn't know at that time that there was any of us who has been arrested and I denied everything. Then they showed me a statement and they told me that there's a statement. Erasmus has already made a statement. When I saw the statement that's when I realised that Mr Erasmus and Mr Harrington are now pushing the case to me. Now they are shifting everything to me. That's when I gave the police statement, another statement. Even though those two statements were looking similar, but they were not the same until we appeared in court and we were sentenced.
MR MADLALA: There was no purpose at all. But if we had a chance we were going to use that chance. And also we were making sure that if we were doing all this harassment and killing we were not doing them in front of everyone.
MS THABETHE: When you arrived there and saw this 15 group of boys and where Mr Jama was there, you stopped there and then you decided to search these people. When they were searching Mr Jama, where were you?
MR MADLALA: We were many at the back of the van so I couldn't see where it came from. Mr Harrington was busy choking Mr Jama. That's when I started seeing the diary. How he got hold of the diary I don't know, but what I heard
MS THABETHE: One doctor said he broke his Madula Bones. It might happen that when he was shot he was already dead. And then the second doctor said it wasn't true, because if he was killed from a gun why he was broken ...
ADV DE JAGER: ... you have been convicted of murder. So the court found him guilty. Whether he thought he was dead or not doesn't matter at this stage. He has been convicted and we are dealing with the conviction and his sentence at this stage.
MR MADLALA: As I have come before Commission to ask for amnesty, I have come to say what happened and I don't even have to think about what happened because I know it for a fact. I told Mr Harrington this is what Mr Jama said.
MR MADLALA: I told Mr Harrington that Jama has just made this statement to the effect that they must kill us in the same manner that they killed the IFP people at KwaShange. That's how I put it when I told Mr Harrington.
MR MADLALA: I thought I had made mention of that, that at the time that he was continuing to throttle him with his belt and when he wasn't moving it was after he had hit him on the rocks and at the same time throttling him.
MR MADLALA: It was quite several times because he kept on throttling him and hitting him against the rock and he kept on lifting him and hitting him against the rock, and at that time Mr Jama was moving until such time that he was still.
MR MADLALA: No, at that time we had not been told because had we been told that the ANC had a right to voice itself we wouldn't have gone there, but we were told that we were supposed to go there. We were not told that the ANC had been unbanned.
MR MADLALA: I'll put it this way. It is true that I did not know that the ANC had been unbanned at that time. We were still using the same methods that we were taught and I was still continuing to use the very same methods because at that time I believed what I was doing was right, I knew that the ANC was our enemy.
MS KHAMPEPE: Mr Madlala, I just want to know which came first. Mr Jama was submitted to quite an extensive search by the special constables, and at the same time he made utterances to the effect that the police had to be killed like the killing which had happened at KwaShange. Now what came first? Was he first submitted to the search and thereafter made utterances about the KwaShange incident?
MR MADLALA: He was addressing the people that he was with, that is the group, but he was looking at Mr Mkhizi directly. That's when I heard him saying it because I had just searched Mr Mkhizi at that time and I conveyed the message to Mr Harrington that this person was making these
MS KHAMPEPE: If I am not mistaken, I heard Mr Harrington state that he found the diary and he found the diary when him and yourself were searching the deceased whilst he was in the back of the van and that diary was found in the pocket of the T-shirt that the deceased was wearing.
MR MADLALA: Yes, I would like to explain. When they searched at first they didn't get anything on the body of the deceased. When I first saw the diary it was in the possession of Mr Harrington and Mr Dhlamini and that was inside the van and at that time I didn't touch Mr Jama because I was holding the doors of the van and they were busy harassing, assaulting and doing all sorts of things to Mr Jama. I never even conducted a search. Even the first time, I did not search him.
that I did not even see them throwing the diary out of the window and after that I did not continue to ask as to where the diary was. Even when they threw it, maybe Mr Harrington threw it together with Mr Dhlamini because I only saw it when they were having it in their hands. As to where it ended I have no idea.
MR MADLALA: I only knew that after the case and it is after quite some time that we had been convicted, that's only when I got wind of the fact that the ANC had been unbanned as well as that other organisations were also unbanned and people could join an organisation of their choice.
MR MADLALA: Yes, I could say that I wouldn't go there because I would have known that there were negotiations and people were free to join an organisation of their choice and I believe that Mr Jama could be alive today if I was as clear as I was after the case and that negotiations were taking place and I only knew that after I could read newspapers and listen to the radio to find out what was happening in the outside world.
MR MADLALA: Yes, I can say that, I would not have taken part because all this that took place is because of the indoctrination that we went through especially with regard to the matter of KwaShange massacre, but had I know that now
JUDGE NGOEPE: Mr Madlala, this group of young boys were harassed in the sense that you stopped them and searched them but what I don't understand is, why did it not stop there? Why did you single out the deceased and put him into the van?
MR MADLALA: There were other people who were searched. I could say not that all of them were searched, because Mr Jama was resisting and he was stubborn, he didn't want to be searched, so I could say that the search didn't continue to the other members of the group. It stopped when Jama was resisting to be searched and attention was focused on him at that point and then especially when he made these utterances that the police should be killed in the very same manner that the IFP was killed. And when I told Mr Harrington I wanted him to know that here is another person who was making an admission. Because it was a usual occurrence for us at the office to talk about ANC members and how to harass them as IFP members. We were always told that we should deal with them accordingly whenever we came across them, especially because we knew that the cases were never dealt with.
MR MADLALA: I wouldn't be positive on that aspect. But when he spoke or uttered these words we were even more aggressive with him and we just wanted to torture, assault and harass him as a member of the ANC, and probably would have released him later on just like the other ANC people.
JUDGE NGOEPE: The deceased's alleged involvement in the previous killing of the IFP supporters is given such prominent by yourself in your evidence and yet neither Mr Harrington nor Mr Erasmus referred to it ... (CHANGE-OVER TO TAPE 2A)
MR MADLALA: I think it didn't receive prominent as far as they were concerned because it was something that we always spoke about. Mr Harrington and Erasmus themselves, especially all the people who were inside the van, they knew that we should get the ANC people who committed the massacre or who were involved in the massacre.
he was taken out - from the time that the van was being driven, Mr Harrington started throttling Jama whilst we were inside the van together with the others who were in the van. They kept on participating in the assault and when we got to the forest we were all standing when Mr Jama was being hit against the rocks.
JUDGE NGOEPE: I am not sure Mr Erasmus's evidence with regard to the banging of the head is concerned. I am not sure what his evidence was, but would it surprise you if he were to say that he did not see that?
MR MADLALA: I would agree with Erasmus because immediately after they told him not to shoot or use that gun, it was quite a distance. Erasmus was not near us. He was quite a distance from the scene of the incident. I would agree with you if he says he did not see what had actually happened.
MR MADLALA: Yes, we were present at that time, but Erasmus was a distance because he was not involved in quite a lot of harassment. He only slapped him across the face and he sort of distanced himself thereafter.
JUDGE WILSON: Mr Erasmus's evidence he gave us yesterday talks about wanting to shoot Jama and then says "Harrington en Madlala is agter hom aan. Ons res het hulle toe gevolg", (The rest of us then followed) Which would seem that he was there.
MR MADLALA: When this happened, when Mbongeni tried to run, when Mr Harrington was trying to get him out of the van that's when Jama tried to stand up and run and that's where Erasmus pulled out his gun. But he did not immediately follow. But Mr Harrington was at the front running after
MR MADLALA: At the time it was when Mr Jama was getting off from the ground and trying to run. That is when Mr Harrington hadn't yet followed Mr Jama. Maybe Mr Jama ran for about 500 metres before Harrington decided to give chase. It could be a distance from here up to the houses that I am pointing. It is only then that we decided to run after Jama. Because when Jama was running, he was running haphazardly to show that he was now powerless and he could not run further.
MR MADLALA: Well, let me just relate this instance, because when we went to the Truth Commission for the first time when they were discussing the Seven Day War, and when I was going to Ashdown to show them where the police shot people, we discovered that people in Mpumuza were now also living in peace, that is the IFP members as well as the ANC members, there was relative calm in the area.
to the death of the deceased, Mr Jama, and that is the search of the group of boys that you found next to Dambuza. The evidence of both Mr Erasmus and Harrington was to the effect that the whole group was subjected to an extensive search. In fact, only one person resisted the search and that was Mr Jama, which led to him being put into the van and your evidence or statement to the Truth and Reconciliation Commission which you have submitted also to this Committee on page 7 at paragraph 25 you yourself says that:
"On our way back to Dambuza area we met a group of about 15 boys including Mbongeni Jama, whom we searched after stopping the vehicle, but we found nothing from their persons".
MR MADLALA: The people that we searched, I don't know why they said they were all searched, because according to my recollection we were not able to search all of them because the people were many in number, much more than us, and if I recollect quite well, the people were not all searched because Jama at that time was resisting the search and the attention was diverted from the other group to Jama.
MS KHAMPEPE: Why did you then write in your statement that you searched and you did not indicate that you did not search the whole group. Your statement says that you searched the group. It is your statement and not Mr Harrington and Mr Erasmus's statement.
search a certain number, but the attention was diverted later on because at that time Mr Jama was resisting the search. And at that time the attention was shifted from the group as a whole to Mr Jama.
MR MADLALA: Maybe there is a problem that I can put in this manner. It is difficult for me to give the statement to a number of different people because the people that you speak to they don't understand you in the same manner and at times what I can tell you is that as I am here before this Amnesty, I am explaining everything word by word, because there is a tendency of not trusting the people who come to take statements from you. I may further point out that at court during the trial I did not make mention of the diary and I realise that if I mention it in court it was going to count against me because I was a member of the IFP.
MS KHAMPEPE: ... but I will pass that one. When you mentioned the diary, can you explain to us whether in your opinion the diary was indeed found in the person of Mr Jama? You have repeatedly stated that you witnessed an extensive search on Mr Jama before he was put inside the van. So in your opinion did the diary come from the person of Mr Jama when he was in the van?
MR MADLALA: I could say this diary belonged to Mr Jama because all of us who were in the van were members of the IFP, so there isn't a person who could have written in the diary that on a certain day they would go and burn so-and-so's house who was an IFP member. I don't think it could have happened amongst IFP members. Because at the top of the list in this diary I saw Mr Vezi's name who was at the
MS KHAMPEPE: But Mr Madlala, you had witnessed an extensive search being conducted on the person of Mr Jama and there was nothing that Mr Jama was wearing except for a T-shirt, is that not so, and the diary was found in the pocket of the T-shirt.
MR MADLALA: As I was sitting at the back, I do not know because there were people sitting at the front, they stopped the van and I did not know what they suspected at the time as I was still holding the doors the van just stopped and we
MR MADLALA: I think the most important thing when you conduct a search, we always searching for arms and ammunition as well as dagga. These are the main things that we search, but they do not specifically say that we should search them for guns. They just said we should search them.
MR MADLALA: No, whatever was unlawful that was in their possession had to be retrieved, because I went to Mr Mkhizi, that is the person I personally searched. Even in court he pointed out that I was the one who searched him.
MR MADLALA: I don't know how to explain this because I did not search Mr Jama. I searched Mr Mkhizi, and maybe the other ones who searched Mr Jama who could not get the diary and they only got it in the van. Maybe they did not search him properly or they did not look into the diary or they thought it was just an ordinary book of no importance.
MR MADLALA: When you are at Dambuza next to the hospital, you take the road that proceeds to Hlnatingi(?) and when you get to Hlnatingi it is the taxi rank, there is an exit to Nonshezi. I could say it is next to Nadi.
"Your justification for regarding your acts, your omissions and offences associated with a political objective".
"We found out Jama was an ANC member. I have been trained to kill ANC members. I regarded them as the enemy".
MR BRINK: Mr Chairman, I wonder possibly before you release him, I wonder possibly if Mrs Jama might be invited to find out what her attitude is towards - if you want to? Two of the applicants have expressed their remorse.
CHAIRMAN: Mr Brink, I think it appropriate that I should take an adjournment at this stage for you, the leaders of evidence, to consult with Mrs Jama and if there are any questions which she would like to be put to these witnesses it should be done through you.
JUDGE WILSON: There is one question I would like you to raise with her, otherwise I will endeavour to raise it with the applicants, or you may perhaps agree it with them, and that is what the age of Mr Jama was at the time of his
CHAIRMAN: You will of course tell Mrs Jama that even though she may have no questions to ask of these witnesses, she may wish to make a statement and, if necessary, and if she is prepared, it should be done through one of you. You should call her so that she can make her statement. We will take the short adjournment now.
MR BANADE: Mr Chairman, there are no further witnesses in this application. It is just the three applicants. If the Committee so pleases, we would like to conclude and possibly just make a few closing remarks and be on our way.
CHAIRMAN: I can understand ... and what is expected of you is not just closing remarks. I think what is expected of you is, I am sure, as much assistance as you can give this Committee on the interpretations you wish to place on the provisions of the Act that are relevant to your clients' case. You may do that now.
As you are well aware, there are mainly two important provisions and that is that this Committee, after considering the application, has to be satisfied that the relevant Act - and here we are referring to the murder of Jama - had to have been done with a political motive. And interestingly enough, there are also references made to the conflict of the past.
The second aspect is the applications of all the relevant facts being put before the Committee, full disclosure that is, and the further requirements are these contained in section 22 and in submission all three applicants resort to ... (CHANGE-OVER TO TAPE 2B)
In submission, the facts in question were brought before Judge Thirion in court beyond a reasonable doubt, and that is why all three of them were convicted of murder. So there can be absolutely no doubt that they are murderers.
The finer details as to why they stopped, why the person was searched, who saw what, with all due respect had to and in anyone's memory would have somewhat become vague by now. The applicants have absolutely no reason to come here and lie before this Committee and I think that can be accepted. What they said before, and specifically before the Court, should be differentiated from what they have said today, if there are some differences, because the aim in a criminal trial is adversary. Facts are withheld and others are emphasised. But, it is the State's duty to prove the case beyond a reasonable doubt, whereas here the facts are being brought to the fore as far as they can remember and to disclose, as far as they can remember, fully to the Committee.
In submission, Sir, if there are differences in their versions, it is with regard to smaller aspects. The fact is, and that has been proven beyond a reasonable doubt, and they acknowledge, that a certain ANC supporter had been murdered by them. So as far as the Act refers to - I would say that it should be read in connection with the full disclosure. The Act refers to "full" disclosure, and it should once again be read in the light of the fact that this incident took place six years ago, and everyone's memory is not as good. And this is one aspect I would like to touch
You have to take into cognizance that they are being held together and I would like to bring to your attention, after I had consulted with them and given the main facts they were told right, you go and do this on your own, and that was on a Saturday afternoon where I instructed them to fill in the missing pieces, and that they might have consulted with each other. Under those circumstances, that is neither here nor there.
Harrington is the one who was consulted with more verbally and in his submission Mr Erasmus borrowed some of his terminology. I do not think that it should affect their credibility before you in any way.
MR BANADE: That is what Mr Erasmus said in his brief reply to you. He said yes, we did prepare it together in consultation with the advocate and that was the part where he was wrong, because the advocate was not present when they wrote them down, but he was not given the opportunity to elaborate on that.
JUDGE WILSON: He was given the opportunity to answer the questions fully. Nobody tried to shut him up. He also, referring to earlier documents that had nothing to do with you, said there had been no consultation when there clearly had. There was only one document he agreed they had consulted about. And he was not being truthful, was he. If you read the document it is quite clear. There was a great deal of consultation.
MR BANADE: I don't think there can be any doubt that there was a great deal of consultation. Before, if I understand correctly, in November of last year they gave evidence about a certain Seven Day War, and apparently for that aim they also prepared the submissions together and some of the sentences, which also appear as such now, come from that submission. The way I see it, it cannot affect their credibility.
ADV DE JAGER: Mr Banade, what do you understand when you speak about full disclosure or facts in question? I only have the English text in front of me. "The applicant has made a full disclosure of all relevant facts". What do you understand to be "relevant facts"?
MR BANADE: Mr Chairman, it has to be the facts of what happened when this offence took place. Relevant facts in this case are that Mr Jama was apprehended, he was seen as an ANC supporter. How each and everyone realised that he was an ANC supporter differs from instance to instance and the person was murdered. Hence the fact that he was an ANC member and on the one hand they were affiliated to the right-wing and the others were Inkatha supporters. These are the main points, these are the relevant facts. Finer detail may differ, not always to mislead the Committee, but because these acts took place six years ago and I am just asking that it be considered reasonably.
To answer your question, we are talking about relevant facts, what happened that day and what went on in their minds and what was the political motive. And with all due respect, Mr Chairperson, I think that has been fully disclosed to this Committee.
well, we killed this man and then you regard it as a disclosure of a material aspect. The fact that they killed that person is not of earth shattering importance, because we know they did that. Of importance is for them to tell us how they went about doing that. For example, an applicant would say that I took out a knife, I stabbed him three times, and he stood up to try and run away, I tripped him and then I stabbed him twice in the back and all that sort of thing. Those are the important details that we need to know. That is what full disclosure is all about. It is not enough for an applicant just to say well, I killed that person. And perhaps you may have to address us with regard to whether or not, with reference to what I have said as important, how your clients acquitted themselves around that issue.
MR BANADE: Mr Chairman, yes, I agree with you that the detail of how this happened has to be disclosed, but is that not what happened? There were eight people; this Committee is faced with three of them. Each one is his own individual and as these events unfolded, the one sat at the back and the one sat in front and they see different pictures. They see things differently, being different individuals and obviously they would differ in certain details because the one saw certain things which the other didn't see. The way I see it they did quite well in saying what each one remembers. Each one informed the Committee as to what their role was.
JUDGE NGOEPE: The first applicant, Mr Harrington, repeatedly banged the deceased's head against the rock, repeatedly, there is that kind of evidence. It came out from Madlala. What did Mr Harrington say about that himself? Did he tell us about that? Did he give us those details?
MR BANADE: As far as I can remember, he did not make mention of it, about the head banging, but in essence the rest was there. If I remember correctly, he was dragged out and he fell and he was dragged out with a belt around his neck, he tried to escape, somebody wanted to shoot him and was stopped, told not to shoot. And thereafter they caught the man and if I remember these details were given and thereafter the man was shot.
MS KHAMPEPE: ... supposed to attach any material weight to that kind of an omission? Is it not a significant omission as it relates to how the death in respect of which amnesty has to granted was committed?
Now the law as we all know works on the basis of a common purpose and according to that Mr Harrington is also guilty, the same as Mr Erasmus, the same as Mr Madlala. Although this Committee would know that the person who was
the direct cause of the shot is Mr Madlala. Mr Harrington gave enough facts before this Committee, as far as making it an associated deed, by saying that he dragged the man out of the vehicle and chased him when he tried to escape and so forth and then he placed Mr Madlala and the shot went off. CHAIRMAN: I think the question that is being directed at you is, can it be said that Mr Harrington has made a full disclosure when he did not breathe a word about banging the head of the deceased, Jama, on the rock? I think that is the level at which the question is put. Do you think that he has made a full disclosure, in the absence of any admission by him that he had done so?
MR BANADE: Mr Chairman, if I remember correctly, Mr Madlala's evidence was, as far as that aspect of the detail is concerned, was given after Mr Harrington gave evidence so there was not a chance to put this version of Mr Madlala to Mr Harrington. And if it bothers the Committee so much then I could ask him about it.
"However, the deceased might have been dead or fatally injured by then. Since he joined the common purpose after the deceased might already have been killed, he cannot be found guilty of murder. However, if the accused No 3 believed the deceased was still alive, then he would by his act become guilty of an attempted murder".
him. That was the finding of the court a quo at page 823. So I do not understand your submission that you said the trial court found the cause of death to be the shooting. The trial court could not find what the cause of death was. It was either the injuries inflicted by Harrington or the shooting, as appears at page 823 of the judgment, if you would like to look at it.
MR BANADE: Mr Chairman, I accept what you have just read to me. I don't know which part of the judgment that is, but the fact remains - that is a technical aspect as to whether the man was dead before the time or thereafter, but the intention remained among the people present in the bush that day, that if this man was not dead, shoot him in the head to ensure that he is really dead.
JUDGE WILSON: You are avoiding the question again. The intention is, if he banged his head so hard against rocks to kill him he should have told us, all he? If the trial court found he may, as a result of Harrington's throttling and banging his head have already killed him. But we were not told by Harrington, were we? And that is the point my Brother has raised with you.
"The account given by accused 1, 2 and 3 and Van der Hogen that accused 6 pulled the deceased out of the van, causing him to fall and that he thereafter throttled him with a belt on the ground accords with the probabilities".
No 6. Accused No 6's account of what happened thereafter is a curious one. According to him he stood up, the deceased was still lying on the ground and he put his foot on the deceased's shoulder".
CHAIRMAN: I understand your argument to mean that as far as you are concerned, they have made as full a disclosure as is required by the Act, and that if this detail is not disclosed, as far as you are concerned, they have more or less complied with the provisions of the Act. That is your submission, is that it?
MR BANADE: Yes, Mr Chairman, that is what I am trying to convey. I cannot understand how such a small difference makes a different in a 10, 15 year sentence, because they fully disclosed their part in this offence.
JUDGE NGOEPE: There is something else also troubling me. With regard to the second applicant, his entire explanation of what happened at the scene, is contained in a paragraph on page 4 of the statement I think of the statement he entered in, and he didn't go beyond that. That portion read - paragraph 3 of page of his handwritten statement, which you handed in yesterday"
"We drove a stretch and stopped in a bush. Deep in the IFP area. I got out and saw Jama running away. I drew my 9mm pistol and pointed it at him in order to shoot him. Harrington said I should not for fear of ballistic tests. Harrington and Madlala traced him. The rest of us followed. Madlala took the shotgun from Dhlamini. The rest of us started walking back to the vehicle and the shot went off".
MR BANADE: Mr Chairman, if one were to examine this paragraph, you would clearly see what Mr Erasmus's perspective was at the time. He said the shot went off. His perspective, even though the death was caused in another way, his perception was that the shot caused his death and it is quite clear that he conveyed his perception to this Committee.
JUDGE NGOEPE: ... the deceased was throttled by Mr Harrington many times. At some stage he was taken out of the van with the belt around his neck and in his statement Harrington said in so many words that he ha throttled the deceased at least on more than one occasion. Mr Erasmus is surprisingly quiet on the aspect of the throttling of the deceased. He never said a word about it. And yesterday he was asked a question, did you see Mr Harrington throttle the deceased with the belt. His first reaction was: at which stage? And then I intervened and I said at any stage? And then he said no, I never saw him do that. And I asked him
why, if he never saw it at all, what was the need for him to ask at what stage. And now it transpired from the evidence that we had today from Mr Madlala that the throttling of the deceased was done - at least at some stage in such a way that it was so many times, surely Mr Erasmus ought to have seen that. Are you going to argue that it is possible Mr Erasmus never saw any the throttling at all, and if he did see it, why did he not tell us? Why did he say he never saw it and why did he not tell us about it.
MR BANADE: Mr Chairman, perhaps I could counter that with a counter question. That is Mr Erasmus's evidence. If you can remember correctly he gave evidence after Mr Harrington gave evidence. Mr Harrington himself had already told the Committee that he had strangled the deceased with his own belt. And that has already been brought before this Committee. What would Mr Erasmus's reason be for withholding such information and to suppress it, to use your own word. He can't possibly have motive. Besides, it wasn't his own actions which he was being questioned about. Just for interest's sake I consider that part of your question, I followed your line of questioning yesterday, and I followed it on the Afrikaans channel. And the interpreter used the word, instead of "belt", used the word "band", and I thought that perhaps it confused Mr Erasmus somewhat - band - until he realised that the actual word being used was "belt".
MR BANADE: Now to go to the political motive. This part in section 20(1)(b). In submission I think that should be the aspect where the Committee should have the least problem. The whole context within which this murder took place indicates that it was within and in connection with a political motive. Eight persons from the riot squad were in a certain vehicle, three of them white, five of them were IFP affiliates, not just IFP affiliates, but confirmed IFP supporters, and the evidence here is overwhelming that and ANC supporter could not be a constable at the time. They picked the man up and eventually his corpse was found in the bushes.
The point I am trying to make is before one even goes into all the detail you find this. What might bother the Committee is were there no other objectives, and that is how I could understand the questions. But i submission the Act says that it had to be in association with a political motive. It does not say that it should only be a political motive or that the context in which it should have taken place should have been 99% a political motive.
The Act leaves a loophole that there could be other objectives as well with the individual. The little loopgate which we can look at is that there could be an association or a political objective. And in the light of all probability I think it is quite clear to this Committee.
The people did not just say it in their submissions, but I think the entire context indicates such. The murder was associated with a political objective. I think if I could speak on behalf of Mr Madlala, I think it was much clearer in his case. He was not a full policeman, he was a special constable, and from a very young age he was raised with being an Inkatha supporter. Of course at that stage they still obtained information. He heard about this man and his involvement in murdering IFP supporters. So in my view he qualifies for amnesty in this regard.
The same with Mr Erasmus and Harrington; their evidence to you was that at that stage they were not card-carrying members of the AWB or any other right-wing political party, but they had right-wing attitudes. But these are young men and found themselves in a riot squad and they were indoctrinated along that line of thought and worked under violent circumstances.
It all indicates that they would have had this kind of attitude towards these people. Here they apprehend a man, find a pocketbook in his possession. Once again, after I read Judge Thirion's judgment last night, on page 814, where he refers to the pocketbook. The pocketbook surfaced in that trial already. They found a pocketbook. Some of them understand Zulu. Those who understand Zulu tell the others in the vehicle that this person has mentioned something about killing policemen and that he is anti-IFP and we also know that it took place approximately 14 days after the KwaShange bus incident. With all due respect, I think this is ... (CHANGE OVER TO TAPE 3A) ... and at the very least one of the objectives of this group was politically motivated.
MR BANADE: Yes, Mr Chairman. The words in the English version speak about a political objective. The Afrikaans one speaks about a political point of view. A point of view has got a broad context. Objective and point of view, I don't think it limits the fact that the act was committed 100% with a political view.
The way I see it the Act made provision for that. Because if one looks at the people who drew up the Act and you look at the act which was committed, your feeling tells you that this is the type of act for which the Amnesty Act was drawn up.
JUDGE NGOEPE: With regard to the pocket diary, are you arguing that - I know that the trial Judge referred to the pocket diary - but on the evidence we have now, are you arguing that one can really make a finding that there was such a pocket diary, taking into account two points. Firstly, the fact that this person was thorough searched and that they were in fact even looking for dagga. And secondly, this bizarre behaviour on the part of the police simply throwing away such a document which would have been important to them. (Inaudible) diary could have emerged from.
context, they were driving, they saw a person, or saw a group, they stopped, got out of the vehicle and now these people are being searched in the way Mr Madlala said. And I think on a balance of probabilities it could have happened. All 15 of them weren't thoroughly searched, but there was some sort of search conducted on Mr Jama. The first problem which they would encounter is whether there was something hard on this person in the form of a weapon. I do not think it was a thorough search and I do think it was possible that something as soft as a book could have been discovered at a later stage. And the person who had initially searched him could have felt the book and probably not paid much attention to it since they weren't really looking for books, but rather weapons and so forth and that a weapon did not surface. And at a later stage when they had this person in the back of the police van they could have felt that there was something else here and under more calm circumstances they could have found the book. They saw that the man was trying to hide something and secondly they weren't merely searching for weapons but also for dagga.
Mr Chairman, I still do not think, notwithstanding the fact that there are probably a few questions about that, I do not think that the Committee can find that there was no pocketbook. That was the version which surfaced in front of Judge Thirion. And I think even in that trial there were differences. But even his words on page 814 of the original judgment, with regards to why Harrington, accused No 6, went to go and sit at the back. "The most likely reason why accused 6 would have wanted to question the deceased would
I read through it once again last night and Judge Thirion does not refer to it again, but it seems as though he was satisfied beyond a reasonable doubt that there was a pocketbook found in his possession.
MR BANADE: Mr Chairman, with all due respect, no. I can't think of any evidence against that which was heard here. To tell the truth, Erasmus says that he found the pocketbook - I beg your pardon - Harrington says that he found the pocketbook, Erasmus says that he was sitting in the front of the vehicle, he heard about the pocketbook. He did not physically see the pocketbook. Mr Madlala also confirms that there was a pocketbook found.
JUDGE NGOEPE: Be careful in your answer, because there is evidence that he was searched and nothing was found on him. There is that evidence. Isn't there? Is there evidence that he was found and nothing was found on him?
CHAIRMAN: And bearing in mind that Madlala did not tell the trial court anything at all about the pocketbook. But be that as it may. The point that concerns is, why was that pocketbook thrown away? Can you tell us what the reason was?
MR BANADE: Mr Chairman, just to answer the first part. In my opinion there is overwhelming evidence that there was a pocketbook, albeit purely based on Judge Thirion's judgment and there ware three persons who make mention of it.
But to go to your question as to why it was thrown away. Certainly it is strange, but one has to bear in mind that these persons are affiliated to a riot squad, working in a riot squad, they are not investigators, they are not your typical charge office policemen, they are riot squad policemen. They are in a completely different category. They are used to have a physical presence at certain places and they do not take matters to court. So for a typical young man under those circumstances who found the pocketbook, and at that time his thoughts were to assault this man, decided to throw the pocketbook away. Why he did it may seem irrational today, but I do not think it should be regarded as so irrational that one could assume on the basis of that bit of evidence that there was no pocketbook.
JUDGE NGOEPE: ... allegedly contained not only the name of a prominent IFP person, but a number of houses which were targeted. If they throw it away how would they be able to go and warn those people who are potential victims, who were listed in the pocket diary and say we found your addresses listed in the pocketbook of a possible hit man, he might have conspired with other people, be careful. How would they go and warn them?
MS KHAMPEPE: There is overwhelming evidence that a pocketbook was found, and probably no one can say anything against that. There is, however, a serious dispute on how this pocketbook was found. According to the evidence of Harrington he states that it was himself and Mr Madlala who found the pocketbook in a pocket T-shirt which was worn by Mr Jama who is deceased. So there is a dispute on how this pocketbook was found and who found it. What is your response to that?
MR BANADE: Mr Chairman, my response to that would be, as I said earlier today, there is a six year gap between the happenings on that day and today. If one should be questioned today about details of an incident that took place six years ago, they would be a bit vague, and obviously different people see things differently. The Judges in the Supreme Court and magistrates are aware of that and I would have to attribute the differences to these two factors, the gap between when the incident took place and now and also the different individuals' way of seeing things.
MR BANADE: Indeed, Mr Chairperson. These are the submissions I would like to make and I would just like to add lastly that the two important loopholes about relevant facts and full disclosure in conjunction with a political objective, I think Mr Chairman, have been shown to this Committee and I do not think the Committee should have any problems in finding that all three the applicants meet the requirements for amnesty and should be granted amnesty in terms of the Act.
"Any employee of the State or any former State, or any member of the Security Forces, in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation engaged in a political struggle against the State"
MR BANADE: Mr Chairman, yes. I have to say that in preparation for this Committee meeting I did look at paragraph 20(2)(b). I read it over and over again and asked myself this question as to whether people were to work within their narrow scope you know, to get amnesty, or whether somebody went beyond their call of duty, should it really make such a big difference. I think strictly speaking, apparently they were - when they decided to kill this person it was on a frolic of their own.
ADV DE JAGER: Mr Banade, if they act within the police line of duty does it say that they could not have committed a murder, if they were within the provisions of the Criminal Procedure Act? The Police Act does not authorise any policeman to commit a murder.
MR BANADE: According to a strict interpretation of section 20(2)(b) where they speak about, and as Judge Wilson read it, in the course and within the ambit. It is not just within the course. It says "and within the scope of his or her duties and within the scope of his or her authority" to have committed it. That puts them in a very tight corridor. That is what I was trying to say to Judge Wilson. I cannot imagine what the person drawing up the Act meant. But they still qualify in terms of paragraph (a), where it says
MR BANADE: Mr Chairman, then the person that drew up the Act did not provide for that. Because I think the intention of the Act was to make provision for such acts in applications for amnesty as well, but it hasn't been done.
MR BANADE: They are going to have to qualify what section 20(2) says as far as "any supporter of any political organisation" is concerned. There is no evidence before this Committee that it was the instruction of the Conservative Party or the AWB or the Democratic Party, but that they were rightwingers, and under those circumstances, Mr Chairman, within the context of that time, there was a very broad spectrum of political affiliations which were anti-ANC, and in that regard certainly they were supporters of that broad political spectrum.
Mr Chairman, the problem I have with these applications is that accepting that there was what one has heard in previous enquiries, a "sub culture" in the police, a sub culture of violence and very strong anti-ANC beliefs and so on, accepting that, the problem with these applicants is, I think, to a large extent the fact that in February 1990 the African National Congress, amongst other formerly illegal organisations, was unbanned. And, indeed, on the day in question the applicants had been to some sort of gathering where there were approximately 2000 members of the ANC which they were monitoring and/or protecting or guarding. And you will recollect further that one of the members of the ANC at that particular gathering requested Constable Harrington to ask him special constables to refrain from toyi-toying in case it led to I imagine difficulties. And notwithstanding his avowed contempts and hatred for the ANC, he complied willingly in a spirit of great cooperation. I find that strange.
I believe that they would all have been searched, because the purpose of the police was to check on whether they had things, as came out in the evidence, firearms, dagga and the like. And then this notebook or diary or whatever it is, is discovered.
It doesn't matter from whom it came. The point is that on the evidence, and if you accept the evidence, there was this document which was extremely important to the applicants, more particularly to Mr Harrington and Mr Erasmus, because had they kept that document, and after the death of Mr Jama, they could have taken that document to their superiors and said this is what we've done and although maybe we shouldn't have done it, we did it because we discovered this vital information. That would have helped them. But to throw this document away, this pocketbook or whatever it is away, seems to me to be something which certainly can't advance their case. Had they kept it and had they not killed Jama, but they did kill him so it doesn't matter, but the point is they would obviously have done better by taking him to the police station and arresting him.
And then it is very odd, when you consider that at the bottle store, without discussing the matter between themselves - and I now refer to the first and second applicants - they have exactly or almost exactly the same thought. They both have this so-called inner explosion, they both suddenly are reminded of the murder of Major Terblanche, they both refer to a member of the ANC, an avowed communist sitting amongst them, they both refer to atrocities of the past, and this is very extraordinary to say the least, they then have this feeling without having
I think the problems the applicants face are those and I myself am not persuaded that a political objective has been shown. There may well have been some sort of political motive, but I am not that that covers what is required in terms of the Act. And unless there are any questions, those are my submissions.
CHAIRMAN: If there was a pocket book, on the assumption that there was, could it not have been thrown away as part of an exercise to destroy evidence of their criminal behaviour for fear it might be detected?
MR BRINK: Yes, there is that possibility. More especially if we accept the evidence that one of the applicants called upon the other not to fire because of the danger of ballistics testing at a later stage.
JUDGE NGOEPE: But what did they kill him for? Except that he was really a member of the ANC which was at loggerheads with the IFP at the time and bearing in mind that during that time there was a lot of political conflict in that area, I doubt whether had he not been a member of the ANC they would have killed him. Doesn't that go a long way towards showing political motive? Political motive or, in the wording of the Act, towards showing that their act was associated with a political objective, to harass, to weaken, to kill members of the ANC?
MR BRINK: Yes, certainly to harass, and one accepts and I think Adv De Jager put a question at an earlier stage, notwithstanding the fact the ANC was unbanned, there was continual trouble which exists to this day between the ANC and the IFP, yes, that is so. But of course it may well be that the applicants subjectively believed that the late Mr
But it seems, if you consider the statements handed in yesterday in their handwriting, what caused them to commit this murder? In their own words they have this identical belief or identical motive the murder of Major Terblanche, the fact they have an ANC member and an alleged communist in their presence; they both think that. Personally speaking, my submission is that that doesn't amount in itself to a political objective.
JUDGE NGOEPE: You must remember that the whole idea of killing ANC members had been there even before that day. It is not something which simply originated on that day. It had always been in their mind, and probably they had killed others, I don't know. The fact is that there had been that kind of mentality that you can kill an ANC member. So it doesn't really surprise one, does it, that on that day both of them had the idea of killing the man.
MR BRINK: Mr Chairman, yes, I concede that and I agree with that entirely. The point is that one has now learnt there was a degree of Third Force activities and that these two applicants were part of that Third Force. Of that I think there can be little doubt, notwithstanding the fact the ANC was unbanned. You've heard evidence and research has shown Third Force did exist, even after the unbanning of the ANC, more particulary so, yes, I accept that.
JUDGE NGOEPE: The other point that you made was that they had a strong case, or they could have had a strong case against the deceased with the diary and the like. But my guess is that in many so-called political killings, even in the undisputed ones, the person had the choice to do something else. It is just that they go for the worst thing which is murder. But if you start looking at it, it doesn't mean that anyone of them didn't have any alternative. For one thing they could have left the deceased. Everybody had that choice. I don't know whether one can use that rigorous test against their actions and say well, they shouldn't have killed him, they should have taken him to the police station. After all they had the diary, that sort of thing.
MR BRINK: Of course had they not killed the deceased they wouldn't be applying for amnesty today so one knows that happened. And the question then arises: under which of the subsections of section 20 may apply. With respect, I think it is common cause that section 20(2)(b) does not apply. If you have a look at section 20(2)(f) any person who on reasonable grounds believed that he was acting in the course
and scope of his authorities or implied authority, if they had the subjective belief that their conduct might well have been approved by their superiors, my problem with that is all very well had the diary been kept, but the diary was thrown away and they concealed all the evidence and never reported the matter.
MR BRINK: Under (a)? The question arises whether there has been the full - sorry 2(a), I beg your pardon, yes. The political organisation of course is the AWB which they then supported, or the policies of which they then supported. They certainly weren't supporters of a liberation movement, unless one can say in a strange way the AWB was a liberation movement.
MR BRINK: Yes, indeed, I accept that. I accept they would have tacitly supported Inkatha, even if they weren't members yes, certainly, yes, I accept that. I don't dispute that. I don't challenge that at all. (CHANGE OVER TO TAPE 3B)
JUDGE NGOEPE: ... the applicants are lying with regard to the discovery of the diary, of what significance would be that lie? It may be that they introduced that aspect as an attempt to bolster their case, to try and show that the murder was politically motivated because here is somebody with a diary in which he mentions having killed IFP people and the like. You know they might have unwisely introduced that element with the false hope that it would bolster their case. But if one finds that they were lying, what damage, if any, can it do to their case?
evidence given is suspicious. We know the search took place. Everyone has confirmed the existence of a diary and it seems to have been accepted by the trial court that there was a diary or pocketbook.
JUDGE NGOEPE: I have my own views about that, that is why I am asking you the question. That's why I am asking you to consider the question at the hypothetical level at which I am putting it to you. Because I am not sure one can rule out the possibility of a finding that there was no diary.
MR BRINK: I find that quite extraordinary, Mr Chairman, because the diary was mentioned in the trial court. But the Appellate Division decision to which I referred you at page 109 halfway down - it is page 248 of the judgment but 109 of your papers, of the bundle - after dealing with the basic background to the appeal, the court merely said the appeal, however is really concerned on the basis of the following findings
"At Jama's searching nothing was found and nothing further happened as far as justifying his arrest".
JUDGE NGOEPE: But they were told the same thing, that nothing was found. We were told the same thing that he was searched and nothing was found on him. Anyway, it is by the way. I am not getting into a debate about it.
ADV DE JAGER: Mr Brink, I'd like to say that the result was that the court was not able to resolve all the points of dispute satisfactorily, but the appeal was considered on the basis of the following findings. So all disputes were not resolved satisfactorily.
MR JASSAT: Mr Chairman, my client has heard the applicants' request that she forgive them. But she is not able to do so because she doesn't believe a word of what they have said in their application. She doesn't believe that they have been frank with this Committee, and effectively the question of their political motives is basically an excuse to get out of gaol.
Her belief is that the only reason why her son was arrested was simply because he put his hand in his pocket and the fact that the had an ANC shirt. If the applicants were bent on their political objectives, then we fail to understand why the 10 people that were in the group who were members of the ANC, were not all taken into custody and done away with. Why Jama was selected. And it seems that the deceased got killed simply because he put his hand in his pocket.
Her belief is, and she is merely speculating, because this inquiry is merely about who is speaking the truth, she believes that her son was so badly assaulted by the police that they couldn't let him live in case he went to the authorities. Having been found out they now use politics as an excuse for having done him in.
Her one difficulty is the following. That it appears from the evidence that the deceased was killed because he said something about the KwaShange incident. She knows as a fact that her son was with her in Richmond at the time of the KwaShange incident and he could not have known about it or taken part in it. So therefore the explanation tendered by the applicants for killing him, she cannot accept that. The other aspect that worries us is the fact that these applicants - some of them testified that Major Terblanche had given them an undertaking that if they got themselves into trouble he will be there to protect them. But at the
time when the deceased was murdered, Major Terblanche was no more around, he was already dead. So who was going to protect them? I don't know what the role is of the commanding officers who were in charge of their unit after Major Terblanche was murdered, because I wasn't here, but it seems that their story that they did this with a political motive must be rejected. They are basically rogue policemen who just got out of line and committed a crime and are now using the provisions of the amnesty in order to get out of prison.
CHAIRMAN: Mr Jassat, yesterday when we adjourned, it was understood that you would be afforded an opportunity at half past nine this morning to be here. We haven't had a word from you as to why you have shown this Committee the courtesy of an explanation as to why you were not here or to apologise for your non-attendance this morning. It was arranged that you were going to be allowed to question witnesses at half past nine this morning and members of my Committee would like to know why.
MR JASSAT: I am sorry that I haven't apologised. As you know, I came into this matter at the last minute, as I indicated to you yesterday. I had other commitments, we had to be in court this morning, and I was trying to get out of a case this morning, but unfortunately it proceeded and finished at eleven o'clock. Immediately that finished I had no way of contacting the Committee because I did not have a telephone number and immediately I got a call I arrived at this hearing. To that end I don't want to be disrespectful to this Committee, but I must apologise again.
MR JASSAT: I was on my way. The other difficulty of course I've had is that in preparing for this hearing I had no documentation, I have come completely blind into this hearing and I've come here merely to assist Mrs Jama.
CHAIRMAN: I don't think that is the problem; that's not the problem. The problem is that it was arranged at half past nine this morning that you would be here. Yesterday we knew that you had no documents, you made that point yesterday. We are talking about the fact that you did not attend this morning, nor was there any explanation offered for your not being here.
MR JASSAT: I have tendered an explanation, Mr Chairman. I was asked to address this Committee in response to the application. Had I been asked at the initial outset as to why I was not here, I would have explained that. Now that you've raised it, I have explained it, and I hope you will accept the explanation. Unfortunately I had other commitments in court. It wasn't appointments, it was a court matter which should have been adjourned but ....(intervention).
questions this morning. You weren't told. You yesterday applied to be able to question this morning, do you remember that? Do you remember asking if you could stand down for this morning to put your questions?
MR JASSAT: Mr Chairman, I didn't have my diary with me. I had come in as a last minute legal representative for Mrs Jama. I've come here to assist Mrs Jama and to that end I hope I have achieved that. But I've had appointments made in respect of court matters, those are fixed long before this hearing. Had adequate notice been given to Mrs Jama and had she consulted me there wasn't a question of probably double-dating so to speak.
MR JASSAT: Yes, he was going to go to school. The reason why he left Richmond was because of the problems that were taking place in Richmond and he had to flee, and that is the reason why he came to stay in the area near Edendale.
MR BANADE: Mr Chairman, just to make sure. I would just like to hear from you if you have finished with these three applicants and if we can leave for Bloemfontein at this stage. Very briefly I would like to know if you intend to proceed with the next applicants.
CHAIRMAN: Before commencing with the next matter, that of Mr Mzimela, have we ascertained whether the relatives of the deceased or his next-of-kin are present and, if so, what their attitude is to this application?
MS THABETHE: Mr Chairman, I have had an opportunity to consult with the victims, they are here. It is the wife of the deceased and the brother of the deceased. Basically what they said to me is, as long as the applicant makes full disclosure of the truth, they don't see why they should oppose the application for amnesty.
But I outlined to them the function of the Amnesty Committee as a whole and the fact that it might appear from the applicant's evidence that the whole incident was political. They then said to me they are not aware of such a fact and their only concern with the application for amnesty on behalf of the applicant, and if he is granted amnesty, is their safety. They are concerned about that.
MR MZIMELA: From 1990 when the political organisations were being unbanned, the IFP as a political organisation that existed at the time, we stay in the rural areas at the Chief's place and we believed that other political organisations were not supposed to exist and some people got involved with different political organisations and there was a conflict among these political organisations especially with regard to IFP and ANC. And Mr Gumede was the Chief's councillor. He was one of the prominent members of Inkatha in that area. And as from 1990 there were certain occurrences that took place because on one particular day there was a meeting at the Chief's place Nchinga, and Montunkosi Gumede, who was a soldier, died. Montunkosi was an ANC member. Because on that particular day that he died they said that he apparently said he was an MK soldier and they were nothing, that's why they killed him. And we have a belief that the followers were doing
MR MZIMELA: The community believed that there were certain people from Eskhwani(?) who were shown by the local residents that this was the man. Whether he did utter those words or not I am not clear, but he was apparently against the IFP.
MR WILLS: Mr Mzimela, I would like you to listen very carefully to the questions I am asking you. Was there a belief that a certain political party was behind the killing of this individual, and if so, which political party?
MR MZIMELA: I don't think I will be able to be specific, but it was in mid-1990. Then in December an attack took place, another member of Inkatha, (name indistinct) Mzimela, was attacked and killed in his house together with his wife as well as his three-month old child. At that time the Chief had put one of his sons in his position. According to the information that we got it was discovered that he had been killed because he was a member of the ANC and he was mobilising the people in that area to be members of the ANC. And they said that he should be killed because
he was going to make people get aligned with the ANC. On that day that they attacked his place they went to attack a certain family by the name of Xila, whom it was discovered that they were also ANC aligned. His name was Xoto Xila. Luckily they couldn't find him at his place because he had visited a certain place.
MR MZIMELA: I think it is an open secret that the Chiefs had what was called the G3's who were keeping guard over them and on that particular day they were at Chief Lindilize Mzimela Tokosani Nguni. The guns were taken from them on that day. They were taken by an induna by the name of Gabathela Dhlamini. And we asked as to where the guns had been taken to. He didn't want to explain or elaborate and he was scared, so he couldn't do anything because the guns had been taken by the higher authorities and there was a certain man known by Thawo Xila(?) who was working for the KwaZulu Government and driving the cars. We discovered that he was one of the people who was driving the cars that had gone to Bongo Nkosi Mzimela's place to attack. Mlunzani Zungu was an Induna in Makolokolo. It was discovered later on that he was present as well as Mkhononodaka Gumede. They were all there and they convened a meeting before then and they used to have camps at his house before launching attacks. It is the deceased's house. They used to convene
MR MZIMELA: When this took place, when Bonkosi was killed, because they said he should not be a Chief because he was aligned to the ANC, quite a number of other people were his followers and I was also one of his followers. We were aligned to the ANC and it was clear now that the situation was no longer conducive to being an ANC member. It was difficult for us to hide ourselves and we ended up showing the community that we were ANC aligned and we did not believe that we had to be killed simply because we were members of the ANC. It continued. We spoke to the police, as I have already mentioned some names, but the police never went to arrest those people, not even a single one of them was arrested. The very same police, Togozani Mguni was arrested but he was released the following day and that was the end of it. Then in 1991 one comrade by the name of Lucky Mhlongo, who was at Sam's place they went to attack Sam's place and shot Sam there and killed him. The people who did that were the Indunas Gambaqana Zuma, Mandla Nkosi Jaba Mzimela, Douglas Buza Mzimela as well as other people were present, but they were the prominent leaders. So that's why I remember their names. The first problem that we encountered was that as ANC members we were going to be eliminated. And we remained being aligned to the ANC and we didn't want to have any conflicts with the IFP. We used to conduct our meetings in the forests because we did not want to be detected by the Chief because the Chief was an IFP member and we kept on mobilising the community and recruiting them in a clandestine manner and they were able
Then in 1992 the IFP was holding a march at Makolokola what they call Nqabani. They said that's where they made resolutions that they were going to harass the ANC people. One of them was Gerhard Vana Mzimela, who was mentioned as the leader of the ANC because in 1991 Harry Gwala and Chris Hani came to Empangeni Hall and he took some of the comrades and that's what made him to be on the wrong side of the Inkatha. We discovered that through Alfred Nutunhlongo, who was at the meeting that was held at (indistinct) Gumede. It happened that on the 22nd February 1992 Gerald was driving his car from Mhlangubu. Because the road was passing at that man's place, he saw the people who were in that meeting but he continued to drive and he proceeded to Maqegana and went to another person called Philemon Ndoda Mzimela to tell him that he had seen Inkatha members conducting a meeting and he said he saw Nontu and he came to warn us that we should take our children away because the Inkatha was going to launch an attack and he left and went to Mhlangubu to another comrade called (indistinct) Zondi. At about six that afternoon he got those people on the road where they stopped his car and they shot him, he died instantly, and they took his car out of the road and threw it out of the road. On that very same night another group of men who were armed went to the house of a certain man who was known as a person who mobilised the community. He also owned a tuck shop and there was a belief that all those people who went into his house to buy were also directly involved in mobilising the community. And whilst he was inside the tuckshop selling he saw a man who was standing at the
doorway and started shooting indiscriminately. He got under the counter to try and hide himself. Then he got a chance to escape, but he was not injured in any way. Unfortunately three people who were there died and some were injured in the attack. Jongula Mhlongu is one of those who died, Puma Hahlo Mzimela as well as his wife and the others got injured. And one of the people who got injured was an IFP member. But since he got injured he realised that the IFP had actually injured him so he changed floors and joined the ANC.
MR WILLS: Just for clarity, Mr Mzimela. On the 3rd of December 1990, where an individual by the name of Bongo Nkosi Panana Mzimela was killed, is it correct that this individual was in fact your brother?
MR MZIMELA: As I have already explained, he had seen an Inkatha meeting that was convened and he also saw Alfred Muntu Mhlongo. He is the one who told him that he was from the meeting and that a resolution had been taken that because he had taken certain comrades to the hall to speak with Chris Hani and Harry Gwala he was busy mobilising the people to be aligned with the ANC so he should be killed.
MR WILLS: Yes ... (inaudible) ... heard the evidence that the deceased, this Ndudaga Gumede was named by the witness in this regard. I am seeking to clarify the issue of where the initial meeting took place, and I think that will throw further light on this issue. Mr Mzimela, you must listen to the questions carefully and just answer the questions. I want to know the name of the person whose home the meeting that you referred to was held at.
MR MZIMELA: As I have already explained, that on the 22nd, one of my brothers, Gerard Mzimela, died. Then it was a weekend after the 29th, we were preparing for his funeral, and Saturday morning we took the bus and went to town to
prepare for the funeral. It was myself, my late brother, Sibani Mzimela, Mandlagayiso Mzimela also late, Philemon Dodo Mzimela also late, and we boarded a bus. At Mr Gumede's place, as I have already mentioned, that it was close to the road. The bus stopped at the busstop. We saw him at his place. Philemon used to call him Uncle, because they were distantly related, and he said there is the Uncle and he was giving us problems. So we saw that he was there in his house. I had a gun with me and it was my gun. Sibani, my younger brother, also had a gun we had borrowed from another policeman who worked for the Murder and Robbery Squad. We decided that he was very troublesome, and we decided this was the opportunity for us to get him and we got off at the next stop, that is Sibani and myself, and the other two went to town to try and get some things to prepare for the funeral.
We proceeded to his house and we had 9mm guns Parabellum. When we got into the yard we found his wife who was bending down and washing dishes and when she saw us she ran away because she saw the guns. And I heard the toilet flushing and we proceeded to the toilet. We found that he was taking a bath. I stood at the door and I shot him. The finished the first magazine and put the second one and I also shot him. And when Sibani tried to shoot his gun locked and got jammed and I took the gun away from him and I continued to shoot him. We picked up the empty or spent cartridges and we ran away. We went back to Umaqikani(?).
MR MZIMELA: As I have related what happened in that area, we were not in good terms, the ANC and the Inkatha. Inkatha didn't want the ANC in that area. As I've told you that Mr Gumede was the Chief's councillor in that area. He was together with the Booi Mzimela Kampaqele. All these people were involved in the killings of the comrades.
MR MZIMELA: As I have explained, that when all the liberal organisations were unbanned, that's when we started being active. We joined the ANC. From 1990 to 1992 we had an organisation committee and we launched our branch officially. There I was a general secretary on the Ongoye Branch, ANC Youth League.
MR WILLS: You have testified to the effect that there was a lot of violence going on in your area and that this violence was politically related. What steps did you decide to take at these meetings as regards this violence?
MR MZIMELA: (CHANGE OVER TO TAPE 4B) ... because we realised that the police were not caring a damn about it because most of the incidents we used to know who were involved and we were telling the police and the police were ignoring those things. Myself, I used to take care on that part because I was trained under the SNDF.
MR MZIMELA: As I have already explained, that they decided to kill Bongo Nkosi because he was aligned to the ANC and they decided that it was going to be a mistake if he takes over. And the Chief who was there was very sick and he was in Nqgwelizani Hospital and then he told his Indunas who must take over, so he told them it must be Booi. They knew that this was going to cause conflict because Bongo Nkosi was still alive, that's when they decided to kill him.
MR MZIMELA: I think it is because the late KwaZulu Government believed that every Chief should be Inkatha that's why then they chose Booi Mzimela my brother, because he was an Inkatha, that's when they decided that Bongo Nkosi wasn't going to be a right Chief because he was an ANC.
MS THABETHE: ... evidence by you in connection with your brother's death and in connection with the IFP/ANC wars in your areas. But what I am not clear about is why was specifically the deceased killed in relation to everything you've said? Can you explain that to the Committee?
MR MZIMELA: As I have explained that he was the leader of the Inkatha people. And they had a meeting and that's where they killed my brother who was also a soldier. As I've explained this went on until my brother Bongo Nkosi was killed and some people who attended those meetings used to tell us most of those meetings were held in his place.
MR MZIMELA: It is obvious and it was obvious at that time. People who used to attend those meetings. And in these meetings that's where decisions were taken that they should kill these ANC people, as I have already mentioned some of the meetings which were held at his house or his place. It wasn't everyone who attended those meetings who agreed with this, so they used to come back to us and tell us who said who to kill.
MS THABETHE: You refer to meetings of the IFP that were held at Chief Gumede's place, that is the late Gumede. As far as I know the tradition is if you are a Chief the meetings of the community are usually held at the Chief's place. Were there such meetings that were held actually, community meetings before?
MR MZIMELA: I think you are asking the right person if you are asking like that, because I know most of the meetings were held at Chief's place, at my father's place, and these meetings were different. In the old KwaZulu Government, all the Chiefs were Inkatha members. Mr Gumede was a Chief's councillor and the councillor has the right to call a meeting and these meetings were to ... (break in recording) ... so he like to further the aims of the organisation.
MR MZIMELA: I think you are asking me, like I explained to you, all these incidents which took place at the area, no single one where the police took a stand we reported. I even explained to you that a policeman who was guarding a Chief, one of them was taken by us to the police to explain and all the people who were implicated in the police never did a thing about it. Police never arrested anyone. Also in Gerald's incident, I was there, and he was killed on Saturday evening. The next day, Sunday, we told the police, we explained everything to the police, we gave the police e every information we had, but nothing was done. And after the meetings people were telling us whatever decisions which were taken there and we used to tell the police all this. And were told that there were guns which came by a Citi Golf from Ngwelizane. One guy's name was Makothombani and he is well-known because he was a killer. Police were told about this, nothing happened. The following week my brother was killed. Even though we reported before time to the police, nothing was happening. I think even if you are lying to the police the police must prove if you are lying to them.
MR MZIMELA: As I have explained, a mob was there and Mr Gumede was there and he was a leader as well. Makhothlom Gumede from Ngwelizane and he is Gumede's son. He went to fetch him from Ngwelizane to do what he did. There were many people. Some of them I don't remember their names.
MR MZIMELA: It was Saturday morning on the 29th. I was with my late brothers, Sabani Manglagayiso Philemon. We took a bus to Empangeni. We were going to buy some stuff which we needed for the funeral of Gerald. The bus stopped next to Mr Gumede's house and I saw Mr Gumede outside his yard and then I told my brothers that there he was, Mr Gumede. Because it was difficult to see Mr Gumede and since he was killing comrades I told my brothers this was a convenient time for me to go visit him. I had a gun, a licensed gun and Sabani, my brother, also had a gun
belonging to another policeman. We agreed that we must go and see Mr Gumede and then we said we must go and try to kill him because people were scared of killing him. We went there. We passed his house and then we used the back entrance. We took our guns out. We went inside his house and his wife was washing dishes and then she ran away. I heard a toilet flushing. I went there. When we arrived there that's when I started shooting at him. I finished the first magazine and Sabani, my younger brother, tried to shoot him as well, and he failed and then I put another magazine. I finished it. I took Sabani's gun. I finished that magazine as well. That's when we ran away back to Maxigani, at Sabani's house. I will be lying if I can tell you how much because one magazine had 15 and then the second one only seven rounds were left. And then another one had 15 as well. I think only one was left.
MR MZIMELA: The only person who had rights to call meetings was the Chief. The Chief will do this by telling the Chief's counsellor. The Chief's counsellor also had rights to call meetings. He used to call meetings at his house. Like I have already told you that decisions were taken at his house as to who must be eliminated.
MR MZIMELA: People who never attended these meetings received letters from Mr Gumede. He used to tell them that they must choose whether they want to stay in that area or to leave the area. For example, Beki Xhosa, who was our chairperson, his house was targeted by Mr Gumede. He used to write these letters to his house.
MR MZIMELA: Mr Gumede used to write these letters to people who never attended his meetings. He used to tell them they must choose whether they want to stay there or to die. And one family, Xulu's family, received that letter and they left that place and people don't know where he went.
MR MZIMELA: Mr Gumede's death is really disturbing me. I never had any aim or object to kill someone, but the way the IFP was killing people in our area, we had no choice. We had to defend ourselves because they were killing us,
MS THABETHE: Mr Mzimela, I am not saying amnesty will be granted to you and I am not saying amnesty will not be granted to you. But should amnesty be granted to you, are you going to go back to that area you were staying in?
MR MZIMELA: I will be very much happy if this Commission can grant me amnesty. As to going back to that area, I don't think I will. I will go back to Eskaweni and only if the situation down there is cooled down that's when I will go back, but now I am scared.
MR MZIMELA: With all due respect to your Committee, Mrs Gumede is my witness, she was at her yard that day. I didn't say a thing to her because she didn't do anything to me. The person I was after was her husband and I don't have anything against Mrs Gumede. It will be a mistake if today I can go back and want to kill her. I don't have any reason why to go after Mrs Gumede and in all this incidents which happened, Mrs Gumede wasn't involved at all.
MR MZIMELA: To all the family members, I would like to tell them that I am very sorry and unfortunately I don't know his children and the only person that I can talk about in all these incidents is Mrs Gumede and I don't have a reason to go after her.
MR MZIMELA: There were some meetings which were called by Mr Gumede and he received those instructions from my father and there were some other meetings where he himself will just call those meetings.
It is not easy for me to talk on behalf of my father because he never told me, but what I believe is that he couldn't have taken such decisions that his sons must be killed. Things started changing when my father elected Booi to take over. But I don't think he is the one who said Bongo Nkosi must be killed. And what I am sure of is that these (indistinct) were taken. I don't know why the police who were safeguarding my father had no guns that night.
MS KHAMPEPE: Isn't it a fact that you were adversely affected by the conflict in your area. Your family was in fact divided into two, with some family members supporting the IFP and some family members supporting the ANC.
MS KHAMPEPE: And isn't it a fact that the meeting which were convened by the Chief counsellor, the late Mr Gumede, wherein various decisions were taken to eliminate your brothers, were in fact convened at his own instance and at his residence and not at your father's residence?
MR MZIMELA: Like I explained, that we used to get reports about these meetings and these reports used to come back with decisions as to who to eliminate and all those meetings were held at Mr Gumede's house, not at my father's house. At Mr Gumede's house, that is where the decisions of eliminating my brothers were taken.
MR MZIMELA: There was no improvement, it got worse. Because it was for the first time that the IFP lost someone who was a leader. It got worse than before because the IFP experienced this for the first time, losing someone who was a leader.
MRS GUMEDE: I want to say that I saw the applicant coming to my place and he had come to kill my husband. I heard him say yes, and when I looked up, because I was looking down, I saw him firing. He fired twice and that's when I ran away.
MRS GUMEDE: At the time I didn't know him, but when the police came to investigate the matter I told them as to what he was wearing and I further conveyed that I did not know him. They went to look out for him but they couldn't get him. They got two men and I said these were not the ones. And the second time they brought him.
MRS GUMEDE: What I want to know is, I did hear his testimony as he spoke, but I personally as the person who stayed with my husband, I am going to deny all that the applicant has said as he mentioned certain meetings where resolutions were taken for certain people to be eliminated. As he was not present he could say that because he did not know what happened in those meetings. My wish was that this applicant should know that whatever he did, he did it because of the people who hated my husband. The brothers that he is referring to, in the first place my husband was at Ngwelazani Hospital at the time that they died. He was there admitted for three months, and the other ones, that is the two following, especially the one who died at Mzimduzu, I was at my place together with my husband and we heard some gunshots beside the road and I was inside the house, I was cooking. I went out and ran to my husband. After quite some time we heard screams from the Mhlongo family of Mhlongo Place.
MRS GUMEDE: The meetings that used to be held there according to my own knowledge, were meetings with regard to the Chief's monies or Chief's collections, meetings where people had brought their matters to be solved or problems or cases. And the Chief would deal with those cases and they were passed on to the Induna. That is all I know about the meetings that took place.
MRS GUMEDE: Yes. I would like to point out and clarify to the applicant that he killed my husband for no particular reason. As he has already explained, we heard the attacks but my husband was not present. We saw a car coming from Nqewani and this car wanted to pass through a bridge and when the other car which was coming from International came and it took a U-turn and went back to the other car which was standing at that time and that is where they started fighting. And when there was quiet the other car went back and we were watching the attack that took place between these cars. When the other cars came to pass through the bridge and some came to watch the incident and the police also came, I want to clarify that my husband was not present at that time. The applicant was misled by certain people who hated my husband.
MR WILLS: Mr Gumede, you have seen me prior to this day in the court proceedings at Matubatuba. Mrs Gumede, both my client and myself are very sorry for the incident that occurred and I don't want to and I don't intend to in any way show any disrespect towards you by cross-examining you on the evidence before this Commission. I don't think it would be appropriate. But on behalf of my client I am instructed to convey his wish that there can be real peace in the area and that this violence can stop. Thank you.
MR MZIMELA: Mrs Gumede, I respect you very much. I just want to say how deeply hurt and regretful I am because you have lost your husband and a friend. That was not my aim to just kill your husband. It was the situation that forced me to behave in the manner that I did. As I have already pointed out before, that I wish that you could be free because you were present when this took place. You saw that you were not directly involved and I could not find any reason to attack you and I do not have any plans to do so in the future. I wish to express my sincere apologies to you. I thank this honourable Commission for having granted me the chance to address Mrs Gumede.
MRS GUMEDE: According to my observation I think he was a member of Inkatha and he was prominent. And I don't know how to put it. I think this whole thing was some sort of excitement. I don't know whether he knew the significance of being a member of Inkatha.
MRS GUMEDE: Yes, I have heard. May I say something with regard to this Commission? I do hear him apologising and saying that he wanted to be granted amnesty. I am not the only one. His brother is also present and I want to say that this amnesty, I personally as the widow of Mr Gumede, I am under the Chief, I cannot come here and say that you may be granted amnesty, because I fall under the Chief and therefore cannot represent myself and I have children who are not going to school now because of the shortage of funds and my husband did not have any relatives. Now I do not know as to what should happen. And I do understand that he wants to go and maintain his kids because his brothers were
ADV DE JAGER: Mrs Gumede, could I ask the members of the Rehabilitation and Reconciliation Commission, there is one of them sitting next to you, could you kindly give a full statement to them to explain what your financial position is and what's the position of your children so that they could report back to the Commission in order to see whether anything could be done to assist you.
MRS GUMEDE: I will explain that they are not attending school. I don't have a place of abode and I can't keep head above water. My house was burnt down. And where I am working I only get R200 per month and my busfare is R70.99 per month and I only have R100 to take home and I cannot maintain my children on that amount. (BACKGROUND NOISE)
CHAIRMAN: She has already been told the person sitting next to her represents a committee. If she thinks that she requires assistance from that committee she must give details and whatever particulars are required to the members of that committee. Does she understand that?
MR WILLS: Mr Chairperson, my submissions will be very brief. I submit, with respect that the evidence before the honourable Commission is such that ... (CHANGE OVER TO TAPE 5b) ... The applicant has satisfied the requirements for the granting of amnesty in respect of the deed that he committed. I submit that he has fully disclosed his involvement. He has answered questions honestly and without 5B - 11.2 any/...
any attempt whatsoever to evade his own responsibility for these actions. At no stage has he attempted to blame anybody else and he has been truthful as regards the fact that this was not committed on the orders of any other person, but that it was his own decision.
In addition, Mr Chairperson, I am of the view that the evidence before the Committee is such that it is clear that this incident arose directly out of the political conflict that has ravaged this part of the country and it is my respectful submission that had this conflict not existed then this incident clearly would not have taken place.
ADV DE JAGER: Suppose he was misinformed about the involvement of the deceased, and that the deceased was not at all involved in the killings of his brothers, could that have any bearing on his own motivation?
MR WILLS: Motivation is, with respect, obviously something which is a personal appreciation. If he had been misinformed, with respect, his motivation would have still been political but it would have been made on a misinformed basis. I think, however, that there is evidence before the Commission which indicates that it is improbable that he was misinformed, and to that extent I cite the evidence of the deceased's widow who indicated that her husband was a prominent Inkatha person. I also ask the Commission to take note of the fact that in the area at the time, particularly in rural areas in northern KwaZulu/Natal, it was in fact very difficult to organise for the ANC and that prominent members of the Inkatha Freedom Party did in fact restrict the political freedom of association of the ANC in those
MR WILLS: That was a question I thought myself for some time. Clearly there is that element where unfortunately his brothers were killed in the violence. However, there are two reason why I think that it was not simply a personal revenge.
The first is that the very nature of the conflict in the area had in fact divided the Mzimela clan along political lines. And had it not been this political division, his brothers would not have been killed in the first instance.
The second point that I wanted to make is that he has testified to the Commission that he was involved in organising for the ANC generally and that the deceased in this matter he saw as a major obstacle towards this organisation. With those two factors I submit with respect that there was more to his actions than simply revenge, be it personal or political.
JUDGE NGOEPE: And also I think twice, on my counting, he had said, rightly or wrongly, I don't know whether that is true, but twice on my counting he has said that the deceased had killed many comrades. I don't know whether the accusation is true, but the applicant on two occasions has said that the deceased had killed many comrades.
MR WILLS: Yes, Mr Chairperson, that is indeed so. I submit that as a result - the close relationship that existed between the applicant and his two brothers, he must have been very traumatised by their death. However, in view of his political involvement, and the general political situation that pertained in that area, particularly emphasising the fact that the applicant was one of the first organisers for the ANC in that area, he was one of the prime movers which later in 1992 resulted in the formation of a branch structure, a formal branch structure. I think that his evidence to the effect that his concern far exceeded the personal aspects of this tragedy.
JUDGE WILSON: Isn't it also a case, as one we've had before, where one must not overlook the tribal politics involved. One must not overlook the fact that he and his brothers were the sons of the previous Chief, were the
people who would in the ordinary course of events have become the Chief and that there was apparently a deliberate attempt to kill the whole line. Three of his brothers had been killed, including the elder brother who should have been the heir. So it was not only just a personal family it was the line of the Chief's sons and that is one of the reasons I think he said he wanted to stop this killing.
MR WILLS: Yes, that is indeed so, Sir. I think this is a particular tragedy in that it is a clear example of where different political persuasions have caused dramatic divisions within a family and line of Chiefs and obviously this has added to the intensity of the problem.
On the question of whether we can have evidence as to whether the deceased was involved in the killings of ANC, it is a fact that we may never know. And we have no evidence to the contrary. Even though the applicant was not acting under any orders, we cannot ignore the fact that unfortunately in the northern KwaZulu/Natal areas IFP and
MS THABETHE: Members of the Committee, the two applicants who appear before us today are applying for amnesty regarding events that occurred at Mdaleni Magoda and Townlands areas where seven kraals were attacked. It happened on 23 June 1991.
JUDGE WILSON: I have great difficulty. He there says: "What I did resulted in my arrest, namely murder and I committed this crime". It would appear there he is referring to a single crime ... attempted murder and six counts of murder. But as I read it Zuma was also convicted of robbery with aggravating circumstances. Is he applying for amnesty in respect of that? Aren't these matters that must be clarified before the application can be heard?
MS THABETHE: As I said before, I was going to clarify that when I lead evidence what crimes are they applying for, because from their applications they are talking of crimes that they did, but it is not clear which ones they are referring to.
CHAIRMAN: I think in fairness, so that their own minds are focused when they are giving evidence on the crimes for which they are in fact applying for amnesty, that you should take those details from them now before we start the hearing. Take the particulars of the people who were involved, the victims and the circumstances. As things stand, when we have before us among the papers, part of their application form in one of the official languages and part of it translated into English, and yet there does not seem to be sufficient clarity on precisely what offences because if we are required to give amnesty we can only do so in respect of specific offences. I think that should be cleared up before you start leading evidence and you can then tell us before you start leading evidence as to what the offences are in respect of each one of them. Will you do that?
ADV DE JAGER: And could you kindly enquire too whether they have in fact been informed of their right to be legally represented and that they have a right to legal assistance through the Legal Aid Board.
JUDGE NGOEPE: This happened many years ago and the applicant and others were charged on a number of counts and most probably they won't even know the names of the individual houses. What you could do is to look at page 61, you will see a complete indictment.
JUDGE NGOEPE: The counts and the victims in each count. Maybe you should discuss it with him along those lines. In all probability he is applying for amnesty in respect of those specific counts set out in the indictment.
MS THABETHE: Members of the Committee, I have spoken to the applicants and they don't have legal representation. After discussing with them and after finding out that they do not have the relevant documents to represent themselves, we decided that it is going to be in their best interest to postpone the matter.
I have gone further to speak to Mr Hlengwe, who is supposedly their attorney, to find out if the problem is the time today that he can't appear for them or he won't be appearing for them in any case and he said to me the problem is he cannot appear today. He can try tomorrow or on Friday. So I want to put forward to the Committee, if it is possible.
MS THABETHE: As far as I know he hasn't consulted with his clients nor has he got documentation to be ready for them today. But what he says to me is he can get the relevant documents and he can represent them tomorrow or on Friday.
CHAIRMAN: Speaking for myself, I think it will be a futile exercise to expect the attorney to come the next day or the day after without having had any consultation with his clients without any concept of the enormity of the matter and the importance of it for him to be adequately prepared so that they can have their case sufficiently well presented.
MS THABETHE: Members of the Committee, one more concern that was raised by the applicants to me is the fact that if they miss this opportunity they don't know when they are going to get an opportunity to appear in front of the Committee. I stressed that it is not going to be in their best interest to appear without legal representation.
MS KHAMPEPE: May I take this opportunity to address you, Mr Zuma and Mr Gumbi, to just explain to you that this opportunity that you have been given today is a very important opportunity, but that does not mean that if your matter is not dealt with today and is postponed, you will not be able to get another chance before this Commission. It is very important that you be made aware that the legal requirements that you must meet to show that your deeds or your transgressions are with regard to political activity or your past political activity. So if your legal
representative is not present who will be able to help you in rendering your testimony and telling this Committee with regard to those political activities, and that the legal requirements that govern this Committee should be met fully or should be dealt with extensively. That this opportunity
When you come before this Committee you see how many papers or how much documentation we have in front of us and this documentation as you are sitting there you must also have it. You will not be able to relate to this committee with regard to the offences if you do not have the necessary documentation. Even your attorney, if you do get one, should be furnished with the necessary documentation and be able to conduct a consultation with you so that he can be able to represent you fruitfully. So you must not be in a hurry to go on with the matter without legal representation. We realise that it would not be in your best interests for us to do so. We hope that whatever I have explained to you is clear.
MS KHAMPEPE: So that if the matter is postponed there should be some efforts that you get legal representation, Mr Hlengwe, or whoever is going to appear on your behalf, will be able to be notified and you will also be notified on a date that is going to be set for the hearing.
CHAIRMAN: The matter will be adjourned for the very, very sound and good reasons that have been given to you. Every effort will be made to find a suitable date without too much delay though it is not possible today for me to tell you when that is going to be. You will be given adequate notice of it and steps will be taken to ensure that you get legal assistance.
MS THABETHE: Members of the Committee, they have been present from yesterday because this matter was supposed to be heard yesterday. I want to take this opportunity to apologise to them for wasting basically their time yesterday and today, but it is something that we could not foresee. As they have heard for themselves that the applicants were thinking that somebody is going to come on their behalf, but it transpired today that this person is not here.
MS THABETHE: He wasn't aware of it and he wasn't aware that his legal representative has withdrawn. As a result, he heard of that yesterday and he says in the meantime he has contacted a legal representative to act on his behalf, but whoever he has called doesn't have the relevant documentation and that person hasn't consulted with him yet.
ANSWER: No, I haven't seen another attorney, besides the fact that I spoke to a certain attorney and said that maybe we have some minor disagreement, but he said to me he would come back to me although I did explain that I am supposed to appear today.
ANSWER: I wouldn't be able to represent myself. I think I do need a legal representative and I would appreciate it if Mongezi could represent me because he is the one who knows a lot with regard to this matter and if I take another attorney I would have to start afresh.
CHAIRMAN: We will adjourn this matter as well. From what you tell us there might have been some misunderstanding between you and Mr Shongweni and I have no doubt that you will take all the necessary steps to clear whatever differences there are or misunderstandings you have with him.
CHAIRMAN: It means that your application cannot be heard now and it will have to be postponed to another day. Can you tell us whether you will be taking the necessary steps to ensure that you will be legally represented?
inconvenience of not being able to hear Mr Hlophe's case because Hlophe's attorney wrote us a letter to say that he will not be able to represent Hlophe today and he further stated that Hlophe said he will not be able to appear before the Commission, as you have already heard Hlophe speaking. There was some misunderstanding between himself and his attorney and therefore I apologise to members of the family of the victims. This was beyond our control and it was unforeseeable.
For the record I want to mention that the victims are not here and there is no way that we can find out if they are on their way or not. But one thing for sure they do know that they are supposed to be here today.
MR KHANYILE: During 1990 when we were at school, the ANC organisation was already existing at that place and the IFP members felt that they were not going to be governed or ruled by the Xhosas, so the conflict started there and they
would come to our school to launch attacks during school hours. And we kept on running away from the place because in 1990 we could not write our June exams and some of us school kids went back to write the exams, but we could not go back. The following year we went back to the same school.
Then in March 1991 they came back to launch another attack and that's where they started shooting us and we ran to Durban and an office in Natal got us a place at Inanda where we stayed together with other comrades. We stayed the rest of 1991 and we discussed as to how we were going to get a suitable school because we wanted to go back to school. And the offices of the ANC said they would try in 1992 and get us a school. So we stayed for the rest of 1991 without going to school.
The Southern Natal office sent Mr Nduli to accompany us so that we could look for a school. Then we went to the school and they gave us a car to transport us as members of the ANC. We got to the school and Mr Nduli went to the headmaster. We were inside the car at that time.
After quite some time members of the IFP came to that school. They were armed and at that time Mr Nduli was speaking to the Headmaster. They wanted to shoot at us and the driver kept on pleading with them not to shoot at us and the driver actually was able to dissuade them from launching an attack upon us. Then the Headmaster came out and told them that they would rather shoot him than shoot us and they ultimately were persuaded ...
when he came out he discovered that the IFP members were now threatening us and they were chasing us out of the school yard and we were not able to go and register for that particular year. So we left that place and went back to Inanda.
MR KHANYILE: Then we convened a meeting together with other comrades that we should get a suitable place where we could stay and also attend school. Then we planned together with the ANC office and they advised us that they did have a place where we could stay and they also borrowed us a car that would take us and we were left at Xele's place. That's where we stayed together with other members of the ANC. It is at Bamshayela Oswatini. The village is called Bamshayela but the place is Oswatini.
MR KHANYILE: It was in 1992, February the 28th. We stayed there and we waited for the beginning of the year so that we can register and there were some other members of the ANC in that place. They went to the Headmaster to try and negotiate so that we could start our school term the
MR KHANYILE: That is correct. They shot in the air but nobody was injured. They came back on the following day, that was on the 11th May and they attempted to attack Xele's place. And at that time there were many of them, members of the IFP.
MR KUBONI: ... speak about the incidents before the attack and if you are not sure about the dates it is not necessary to disclose the dates, but what is most important is what happened before the incidents that led to the attack on Nqobofemile.
MR KHANYILE: Then a fight broke out and they were attacking us and Mr Xele went out and he came back to tell us that we must come and see, there was a large group of people approaching and this large group was attacking Mr Nqobo's place. And we went out. And when we went to the yard, the members of the IFP started shooting. And this happened up until one o'clock during the day. They ran away and we also came back. Then the following day they came to attack in the afternoon. They even burnt Mr Xele's house. That is where we were staying and they shot, we ran for our lives. We went to report to the police station that we were being attacked. The police took us in a van to go and investigate the matter. They left us along the road, but they did not go to the Xele house. They went back without investigating the matter. They didn't help us in any way and on that day
we did not sleep in the house. Then on Saturday whilst we were at the mountains hiding, certain people came and they said we should go and have a look because there was dead men and when we went to look, we found out that he was one of us. And the police came at that time and said that we should help them carry the corpse in to the car.
MR KHANYILE: After we had put the corpse in the car the police took the corpse with and we stayed in the mountains because we didn't know where to go. Then on Sunday morning, the very same week, we went to see Mr Xele's house. And just as we were trying to collect our belongings to see whether we still had any left, we discovered that there was nothing left except for ashes. One member of the ANC came to report to us that another group was attacking his house. I went together with him. We went to his home to see what damage was being done and when we got there we discovered that the house was in flames and we saw three members of the IFP who were burning the house and we started fighting and shooting at each other. The IFP members ran away. They got to Nqobo's house. These members of the IFP who were running got into Mr Nqobo's house and they were actually shooting at us from inside the house and we shot back; after quite some time we stopped shooting at each other.
After I had stopped shooting, proceeding home, two kids came out of Nqobo's house. I was having the gun in my hand. I asked them as to where the people who were shooting were and the children did not answer me. I could see that they
MR KHANYILE: He said he got them from the organisation, but he did not elaborate. He said he was not allowed to tell us all the details because they were going to be arrested. I am referring to the ANC organisation.
ADV DE JAGER: He has been telling us about the two children coming out of the house and speaking to him. Isn't that relevant because you are now speaking to an attack on the house. I don't know if you can hear me. He has been telling us about two children coming from the house and he enquired something from them and then you interrupted him and now you are asking him about the attack on Nqobo's house. Isn't the story about the children relevant?
is that there was an exchange of fire and then the people whom they were following, whom they were fighting with were inside the house. So when the kids got out of the house they wanted to find out from them whether these people were still inside. So I think the question of the kids really feature that way. In fact, the reason why I came in at this stage, I wanted him to clarify some of the issues relating the attack before he can go on with his testimony.
MS KHAMPEPE: Mr Kuboni though, I think the witness was still explaining. I think his evidence was to the effect that he asked the children the names of the children who were inside the house and who were shooting and he was still going on with that evidence when you interrupted him. So he has not yet furnished us - because I would imagine that the children must have responded to his enquiry with regard to the names of the people who were in the house.
CHAIRMAN: Let's be more specific. He told you about two children who came out of the house. They were in a state of shock. He asked them some questions, you then went and asked him where did you get your gun from. There was a break in sequence. You should take his story about what happened after he spoke to the kids, what happened next?
MR KHANYILE: We asked the children who were coming from the house as to where the people who were attacking us are, did they get into the house or run away. They did not answer me. I could see that they were in a state of shock, so I could not go into the house because I did not know as to
MR KHANYILE: No, we never went into the house. Then from there we left to our place. We stayed for quite a few moments and then later on police came and they called out a list of names and in this list my name was also there and I did not realise that where we were, there were people who were injured where we attacked, there were people who were injured or who died. I stayed for three days and the detectives from Greytown came who were investigating that matter of murder and robbery. That is when I got to know that the Nqobo family members had been shot and I was told that it was three people. I told them that I have no knowledge thereof because I never went into the house to discover the corpses. As a result I did not know what had happened inside.
MR KHANYILE: Yes, I am the one who shot. When I was at the police station the detectives from Greytown came and I explained to them that I had no knowledge that people had died and they thought that I was hiding something. And I proceeded to tell them that we were shooting from the outside and we did not go into the house and after the shooting stopped, only two children came out of the house and I asked these children as to where the people were who were attacking and the children did not answer me. From there we left without getting into the house to see how much damage had been done. They asked me about guns and we had hidden the guns, but the police could not get the guns, even after having assaulted me, then we proceeded to the case. Up till such time the matter was referred to the Supreme Court at Mtunzini. That's where they accused me of having killed three people and apparently there were people who survived the attack and I was convicted at the Supreme Court in Mtunzini. I really regret this because the people who got injured were not the ones that we were chasing. These were innocent victims who were not involved in the whole conflict between the ANC and the IFP and I would like to sincerely apologise to the Nqobo family that I killed the members of the family.
MR KHANYILE: What I did was not my intention but it was the situation that prevailed, that is the conflict that took place between the respective organisations, that is Inkatha and the ANC. I did not aim to kill the Nqobo family.
MR KHANYILE: When the members of the IFP came, that is the ones who had burnt Mr Luthuli's house, that's when we were called and we were chasing them, and when we were chasing them they ran into the Nqobo house and at the time that he was in the yard he shot at us and they got Skwayi Nqobo, that is Mr Nqobo's son who got into the house. He was an IFP member.
MR KHANYILE: Yes, we were chasing the members of Inkatha who had launched an attack on us and now we were launching a counter attack. They ran into Nqobo's house and they shot from the inside of the house. Our aim was that we wanted to kill the IFP members who had shot our many members.
MR KHANYILE: They were shooting at us from the Luthuli place, they got into the yard and they got into the house. That is where they started shooting, not in the yard and that is why we shot into the house, because whoever was shooting at us was inside the house.
MS THABETHE: According to the judgment the accused said there were two groups, one entered the kraal and then the other remained outside. But today you are saying that the six of you remained outside. Can you explain that to the Committee?
MS THABETHE: I want to clarify that when we are talking about the kraal, I understand that the Nqobo Kraal includes the yard. I mean we are not talking about the cattle kraal. We are not talking about the kraal for the cattle, we are
JUDGE NGOEPE: I am sorry, I personally find this confusing. The witness, when he speaks of the kraal, he means a cattle kraal and there is a house and there is a yard. I assume the house is inside the yard, maybe it is a fenced yard. Now you want to introduce a further concept of a kraal other than a cattle kraal. How are you going to fit that in? Do you want to distinguish between a yard, a cattle kraal and then kraal in another concept? Is this not just becoming complicated now? I don't understand this.
JUDGE WILSON: Isn't one of the problems the fact that in the judgment the Judge refers to this witness giving evidence that they went via the Zulu kraal to the Nqobo kraal. That clearly is not a reference to cattle kraals. That is just a kraal as a housing unit, isn't it?
that. It is clear to me that when the judgment speaks of a kraal it is not talking about a cattle kraal. I understood the concept of the yard to be synonomous with the kraal. I wouldn't try to distinguish between a yard and a kraal. You see what I mean. Now I thought you were trying to distinguish between a kraal and a yard. Is there a difference between somebody's yard and somebody's kraal?
MS THABETHE: That is what I thought I should clarify. That a kraal includes a yard and house and then you have a kraal which means it is the whole area. What I wanted to find out is by saying they entered the kraal, did they enter the yard but not the house, or what does he mean? We are not talking about the cattle kraal because it is not relevant here. That is not where the attacks occurred. So I thought maybe it is important for us to clarify what we mean by kraal.
MR KHANYILE: Thandazani and Peter went out through a certain door, but I do not know whether when they were running they got injured inside. I don't know what injured them because nobody went inside. But what I suspect was that probably when they were trying to escape they were either cut by something but we did not participate in stabbing them because we had guns.
MS THABETHE: Maybe I should rephrase my question. According to the judgment Peter saw you shooting at a close range. He saw you firing at all those present in the room. So can you explain that to us? Are you saying he was lying, since you didn't get into the house? Can you explain how that happened?
MR KHANYILE: I was shooting from the outside. I was close to the window, but I did not see the people who were inside because they were inside, shots were coming from the inside of the house and I was firing into the house. And Peter came, after I had stopped shooting, because the people who were attacking us from inside had also seized the attack on us. So I asked him as to where the people who attacked us were but he did not answer me.
JUDGE WILSON: But what is being put to you is that the evidence that was led, according to the judgment, is that he said he saw you come into the doorway of the room and saw you firing at all those present in the room, that is from the doorway of the room. You heard that evidence at your trial didn't you?
trigger and the firearm wouldn't go off at a stage and then you said to him that he was lucky that he had been saved and thereupon you left. Did you ever speak to him and say to him that he has been lucky to be saved?
MR KHANYILE: I think Peter was confused. I asked him as to where the people who were attacking us were. But he did not answer me. That is when I saw that he was in a state of shock, so I never went on further to ask any questions. He saw the gun that I was having. I was pointing towards the house because I thought at that time the people were still in there and they were going to come out. Maybe he thought I wanted to shoot him.
JUDGE WILSON: If you were chasing these people who shot at you as you say at the Luthuli kraal, why did you tell the trial court that you heard gunshots from inside the kraal which surprised you greatly?
MS THABETHE: ... explaining to the Committee. You were looking for these men and you knew exactly who they were and you knew exactly which house they were in. Why didn't you get inside the house and get them? Can you explain that to the Committee?
MR KHANYILE: I have already explained that I wasn't paying attention to some of the things, because of the fact that whilst I was launching the attack I was also keeping a lookout as to whether there was any person coming.
MR KHANYILE: They were inside the house and their bullets went through the door and I kept on ducking and when I saw the bullets coming through the door I would duck to another direction. When I saw them coming out of the window I ducked to the opposite direction.
MR KHANYILE: I did hear some noise, but it was from these children who were actually screaming, the two children that I referred to before. But when the shooting was still taking place I could not hear any noise in the house. I only heard the noise after the shooting had ceased.
MS KHAMPEPE: Mr Khanyile, in your evidence you have stated quite clearly that you saw amongst others Skwayi and the Zulu person whom you found burning the Luthuli house. You gave chase after them and in the process you fired at one another. So you knew that there were three people inside that house.
MR KHANYILE: I was not able to shoot them because I was outside the house, they were inside and I was just returning fire thinking that I would hit them or I would be able to get one of them or two of them ... (CHANGE OVER TO TAPE 2A) ... It was the Luthuli household.
MR KHANYILE: The other guns which were available were far too big and the other two small ones had been taken by other members of our group. So the big ones were hidden because the police were troubling us.
MS KHAMPEPE: Mr Khanyile, I have only one question to put to you. I want to know whether it was the modus operandi of the ANC in your area to launch retaliatory attacks against the IFP indiscriminately.
MR KHANYILE: We were not attacking indiscriminately. We were attacking Inkatha members and the situation actually forced us to actually defend ourselves when we were being attacked by Inkatha members.
number of houses or rondawels and when we got there I thought or generally thought that they had got into that particular house that I attacked. As a result I thought probably the other members of the family were in the other rondawels.
MS KHAMPEPE: I am asking you again Mr Khanyile which you have not answered. Could you not have foreseen that there might be a possibility of small children and women being in that house which you attacked?
MR KHANYILE: No, it never occurred to me that there could be children and women, because the members of the IFP who got into that particular rondawel shot from the inside so I thought they were all by themselves. That is why they were able to shoot at us.
MR KHANYILE: As I have explained before, that on Friday we were attacked and the house was burnt. That's when we ran away. And after they had burnt the house we went to the police station where we were not helped by the police, then we went to the Nqobo place to launch an attack because the police were not helping us.
MR KHANYILE: Yes, we went to the Zulu kraal after they attacked Xele's place, then we went to Zulu. That was on Friday, not on Sunday. It was after the event of burning the Xele's house, we went to the police and we couldn't get any help, therefore we went to the Zulu kraal.
"On the morning in question small boys came and reported that the Luthuli kraal was burning. The Luthuli's were also ANC supporters. They were told that one Skwayi Nqobo and one Mkupeni Zulu were responsible for this".
"They then set off in pursuit of these men. In his evidence in chief he said "we ran to find them". They went via the Zulu kraal to the Nqobo kraal".
is you) aimed the firearm at him and pulled the trigger a number of times, but the firearm would not go off. The accused said to him that he was lucky that he had been saved. Thereupon the accused left". Do you agree with this version, or don't you agree with this version?
MR KHANYILE: I don't agree. I would like to put it this way. I was outside. I never got inside the house. I didn't realise that I shot Thandazani. I even left there without knowing. I only heard about it in court.
MR KHANYILE: Peter saw the gun in my hand and then he thought that I was going to shoot him. The only thing I asked Peter was that where were those guys who were attacking us from inside the house. Maybe he thought I wanted to shoot him.
MR KHANYILE: I didn't observe them that well because I had a problem. My concentration was on those guys who were inside the house. All I asked them was where were those guys and they didn't answer me back and I realised that they
MR KHANYILE: I was shooting at different directions because I didn't know which part of the house they were occupying. I would estimate that if the firing came from a certain direction then I would point my firearm towards that direction.
MR KHANYILE: At the time I had no knowledge as to what room they were occupying, so I was just shooting at random at times and at times I would wait for the fire to see as to which direction it was coming from.
JUDGE WILSON: Two and a half metres. And yet in this indiscriminate shooting you say where you were shooting through curtains, not knowing what you were aiming at, you managed to hit the one person six times, the other two people three times each and a little boy who was being pulled under a bed, you shot him through the arm. Is that so?
MR KHANYILE: As I have already explained, that I didn't know in which room they were. Whether they were maybe below the window or next to the door, they could have been somewhere there, maybe that's how I got them. Because I could not see anybody inside the house at that stage.
JUDGE WILSON: I think I must indicate to you Mr Khanyile, that was far as I am concerned I do not think you are being honest or frank with the Court in this regard and that you are accordingly not complying with the provisions of the
CHAIRMAN: Before you resume re-examining this witness, you will have gathered by now the problem that is confronting us as far as your client is concerned. There seem to be some serious improbabilities in his evidence, from which one may draw the conclusion that he has not made a full and frank disclosure.
JUDGE NGOEPE: Before you re-examine, can I just also deal with another problem which you may wish to address when you re-examine. Mr Khanyile, your evidence before us is that when you and your friends followed the three people, you were the only one who was armed amongst your friends.
MR KHANYILE: The one I was actually aiming at was Skwayi Zulu and he was also returning fire and Mqupeni did have a firearm. He was also shooting, but apparently he was not shooting at me. I think he was attacking the other two members with which I was travelling.
JUDGE NGOEPE: ... if it was only yourself that was armed, and you and your friends were pursuing these people, how did you hope to engage people amongst whom two are armed, and in your group only one person is armed?
There was no exchange of any fire between you and these people. You only received a report that these were the people who had been responsible for the burning down of Mr Luthuli's house and you never saw them yourself and you never exchanged any fire with them.
JUDGE NGOEPE: ... speaking for myself, it looks a little bit improbable to me that you could have dared to engage people who had two firearms and you people had only one. You went so far as to pursue them and follow them.
MS KHAMPEPE: Mr Khanyile, before your attorney re-examines. There seems to be a little discrepancy in your evidence with regard to how big a group you were. I think in your evidence today before the Committee you indicated that you were a group of six, and in the evidence before your trial you indicated that you were a group of 12. Now in response to questions put by Judge Ngoepe to you you stated that Mqupeni was shooting at the other two persons in your group. Now if you were six, where were the other three persons who were supposed to be part of your group?
MR KHANYILE: I said the two were having guns and shooting back. We were six when this happened. That is when I was shooting at Mqupeni Zulu and his friend. The other five were also with us. I was the sixth one. I was referring to the IFP members that they were three and the two were shooting at us.
MR KUBONI: One member of the Committee, Judge Wilson, spoke about the bullets to Nomekemeza Nqobo, which were plus-minus eight and the bullets also to a two-year old and also to the 37-year old. When did you hear about the eight bullets that penetrated them?
MR KHANYILE: I never got to know as to how many bullets penetrated their bodies. I only heard when the police told me that there were people who had died from gunshots, and as to how many bullets penetrated each person is the first time that I am hearing before this Committee.
MR KHANYILE: I did pursue them and they got into the Nqobo household. That is when they got into the house and they shot us from inside the house and I shot whilst I was outside the house. I never went into the house.
MR KHANYILE: Nobody gave us any instructions. We were just sitting there waiting for whoever was going to launch an attack so that we would also launch a counter attack. That is what we discussed amongst ourselves that we would defend ourselves whenever there was an attack.
MR KHANYILE: I have no knowledge thereof. As I have already explained that I had gone to the house for the first time. I don't know whether there was a back door or another door through which people could escape.
MR KHANYILE: They were keeping watch for our assailants, but I never actually asked them as to whether there were any other doors. They were just surrounding the house to see if there wouldn't be any escapees because there were IFP people who went into the house.
MR KHANYILE: Yes, I was shooting through the room that was opposite me. The other room, I was shooting through the two rooms, that is the one which was opposite me as well as the other one that was next to the door.
JUDGE NGOEPE: My note said from the inside, but maybe you are right. I am not so sure. I could be wrong. But how can the outside appearance of a house indicate to you that the house must be having four rooms if you never entered into that house?
JUDGE NGOEPE: Houses in the township can never give anybody doubt as to what the walls are made of, how they are structured. They can never give anybody the impression that the wall might be corrugated iron inside and plastered from inside.
MR KHANYILE: As I have already explained, I told myself it is a four-roomed house, because the structure resembled that of the houses I built in the townships. I don't know whether it was divided or not ... (CHANGE OVER TO TAPE 3A) ... To me that is a four-roomed house. I saw only one door, the one that I've referred to before. The one that was next to the window.
MR KHANYILE: Yes, it is true, I wanted Skwayi and Mqupeni Zulu because they had shot a lot of comrades and they had launched a number of attacks upon us. But it was not my intention to kill innocent victims.
MR KHANYILE: No, I never made an attempt to get into the house because I was not sure whether they were injured or they had died. So I was scared to get inside the house because they might have been drawing me into the house by ceasing to fire then they would shoot me when I got into the house.
CHAIRMAN: You are once again afforded an opportunity to put questions arising out of what has been put to him by members of the Committee, but before you do that. Ms Thabethe, are there any questions you wish to put to this witness at this
MR KUBONI: I am not sure whether I can get hold of some of the people who were there, Mqupeni Zulu and Skwayi Nqobo, because I am told that some of them are passed away. I am not sure about the timetable of the Committee ...
MR KUBONI: No, they did not give evidence at the trial. Maybe I must take instructions just on that one whether it is possible to get hold of them otherwise it is pointless ... As I have suspected, that is the problem that I had that the witness in fact, since it is a long time ago that he left the area, it will be very difficult to get hold of those witnesses. So under the circumstances I do not have any intention to call further witnesses.
MS THABETHE: In summing up I would like to summarise whether I think in my submissions the applicant does require with the requirements of the Act with the question of full disclosure. My opinion is that the version given at the trial court is very different from the version that we are told today, but the applicant explained that he had no obligation to tell the truth at the trial. Still though, with the evidence which that he has given us today, there are a lot of inconsistencies. And the applicant hasn't come out clearly to explain factors and questions put to him.
And just on the question of the children coming out and talking to the applicant. I don't think it is very likely that children who are in the house, a house that has just been shot at, can be so courageous to come out and actually speak to the person who has been doing the shooting. But I don't know, it is just my opinion. As I said before, the applicant does not seem to be a good speaker, if I may put it so. It is like he is unable to explain himself and the sequence of events clearly. So it is very difficult for me to make an opinion whether a full disclosure was made or not. It is not convincing that it was, but I may be wrong.
is nothing which shows the connection or a causal link between the offence committed, that is the shooting of the two females and children, and the political objectivity sought to be achieved. There is no connection between the two.
At the same time the applicant indicated that their purpose was to kill three IFP people who had attacked the Luthuli kraal. However, I don't think that would justify the killing of the Nqobo family and children. I am not clear as to what the political objective was.
MR KUBONI: Chairperson, at this stage what has to be decided is whether the Act has a political objective and whether the applicant has made a full disclosure. It is my submission that the question of a full disclosure and the question of political objective are in a way interlinked.
In my view, the applicant has done all in his power to disclose the events which took place on the day in question. The question boils down to the question of probability of his version. And the improbabilities that are pointed out is the question of shooting. The improbabilities in his version mainly have to do with the question of the bullets that penetrated the children. The child was there and also the two females were there.
In my view if the version of the applicant is accepted that there was a shooting from inside, surely it cannot be said with reasonable certainty which bullets that penetrated the deceased were really from the applicant.
JUDGE WILSON: Are you seriously suggesting that we should have regard to the possibility that these people who were in the room were shot by other people in the room? By their relations, not by a hostile group? Are you seriously suggesting we should accept that as a possibility?
MR KUBONI: What I am saying is, you cannot overrule that possibility, but in any case it is farfetched. But given that there was turmoil or there was an exchange of fire, so they might have been caught in the cross-fire. But what is obvious is that with the indiscriminate shooting of the applicant, anything is possible. If the people who were being pursued, that is Mqupeni Zulu and Skwayi Nqobo, if they got into the house running, surely I don't think really that they would have time - they would have time to warn the people who were inside or also to check in what positions they were in, so surely they must have directed their attacks at the people who were inside, so the possibility really of shooting the people who were inside, it is not a possibility that we can completely overrule.
JUDGE WILSON: You must bear in mind that it was light enough outside before they came to the house for the applicant to recognise the people he was pursuing. There was sufficient daylight for him to do that. So we are not talking about a black, dark room. This was in the morning
MR KUBONI: Yes, it was in the morning. What is obvious from this version is that since there was this shooting the possibilities that - since there was this shooting, he didn't foresee that the three deceased were inside the house. Their political aim was to kill the people who were there.
CHAIRMAN: He has been found guilty of murder; he has already been found guilty of shooting those people and the probabilities and the possibilities of their death being caused in some other way is now an academic issue, is it not?
MR KUBONI: In my view, when he shot, he just shot indiscriminately. So therefore the probability is there that six bullets could infiltrate the deceased and it is possible that also the children could be shot the way he was shot. Therefore, I am saying, in my view he has made a full disclosure in that regard because he stated that when he arrived there he started to shoot all over the house.
MR KUBONI: If you look at the time, if you look at the judgment it was round about 6 am and it is in March. Maybe by that time it is still dawn so to say and there are some huts and other houses in the yard. Anything was possible. The other possibility is that they are still in the other houses. The other possibility is that they were there, but in their view they were chasing those people who had got into that house. They believed whom they were chasing were in that house. It must also be taken into account that the situation was tense in the area. There was tension in the area. So there was no time really to think about the fact that maybe there must be children there in this house, there must be innocent women in this house.
As the judgment stands today there are some references to the evidence of the children. I submit that maybe it is very important to if the version of the applicant is weighed against he version of the children, it must be taken into account that when the incident took place they were still very young and it a known fact that with young children they have got a tendency to imagine things that they never took place. For that reason I submit that the version of the applicant, when he says they got out of the house and he was still having his gun, and when he asked the kids about the
JUDGE WILSON: Why? These two children, one of them had just been shot. Their grandmother had been shot in their presence. The other woman was dead in the house. You are suggesting it is probable that they would have gone out and spoken to this man who had just done the shooting?
MR KUBONI: The evidence is that after the shooting had stopped, then the children got out of the house. If they got out of the house, anything is possible there. They could have got out of the house simply because they thought the assailants had gone out. Maybe they were going out to ask for some assistance and when they saw these people who were having these guns and when they asked them the questions, surely that is why they did not respond. Because I think it was still ...
ADV DE JAGER: But wouldn't they ask assistance from the three people in the house, the people who fled into the house, Zulu and Skwayi, rather than go out and ask assistance from the persons standing outside shooting into the house? If those other people were in the house at all?
CHAIRMAN: We realise the limitations that you have. It is quite clear from your client's version that he had intended to get hold of these assailants whom he called IFP people with the view to shooting them because of what, in his
opinion they had done to his comrades. Now it transpired that he killed two innocent women and children. And I would like you to address us on whether, whatever political objective he may have had, is proportional in any way to the offence that he has committed.
MR KUBONI: In my view it is. In the sense that the area by this time was divided into the IFP supporting members and the ANC supporting members. In the house, they just shot, and when they shot in fact their objective was to ensure that they eliminate those people whom they regarded as IFP supporters. (CHANGE OVER TO TAPE 3B)
Ms Thabethe has raised the question of the causal link between the attack and the political objective. In my view the applicant, when he shot at these people, he was mostly concerned with eliminating the IFP members who were inside there. The people who got shot were caught whilst they were going on with their mission of ensuring that the people they were pursuing had been eliminated.
I submit that the applicant has made a full disclosure of what took place and sometimes it is very difficult to remember each and everything because this incident took place as far back as 1992. That's all I would like to submit at this stage.
We are talking here about the relationship between the shootings on two females and two children. That is the relationship between that commission of the act and the objectivity pursued. What I was saying is, there doesn't seem to be proportionality between the act that was committed and the objective that was perused. I don't see how we can say then the requirements of the Act were met.
MS THABETHE: I would say if the political objective was to kill the IFP members for what they had done at the Luthuli house, but in turn two females and two children were killed, and the applicant ... that there were innocent women and children in the house. I don't see how it justifies the political objective.
MS THABETHE: From the applicant's evidence I don't think that's what he said. He didn't say their aim was to kill everybody. They wanted to kill these two people and they didn't know that there were women and children in the house. If he had said that then maybe I would say something else.
CHAIRMAN: What do you say about the fact that a house belonging to ANC people was burned down, that is the Luthuli's house. There had been other raids on ANC supporters and so on, and he and his friends decided that they must defend themselves and one of the ways in which they thought they would defend themselves would be to shoot and kill the perpetrators. Whether they succeeded or not is another matter. But the decision to shoot and kill those who have been harassing and injuring and killing their kind,
MS THABETHE: I would say it is a political objective, giving the setting at that place he is talking about, Bamshela, where there was unrest between ANC and IFP and people took it upon themselves to defend themselves. I would say in that context there is political objectivity. But my problem is whether it was pursued as they had planned to and they had aimed to.
CHAIRMAN: The offence was aimed at people whom they regarded as Inkatha. Unfortunately the wrong people got killed, but the aim and the objective was to attack Inkatha. MS THABETHE: I would say the objective is political but the relationship between the act that was committed and the political objectivity, I am not sure about that one.
JUDGE WILSON: I have a problem which has suddenly come to me. Perhaps you can assist me. Is there any evidence, any reference in the judgment to the fact that these three men they said they were chasing came to the house or not? I can find no such reference. I don't know if the question was ever raised. I don't know if it was raised at the trial.
"They then set off in pursuit of these men. We ran went to find them. They went via the Zulu kraal to the Nqobo kraal".
MS THABETHE: I don't know, but my opinion would be that if they were chasing the people and they could see where they were going, I would assume that they went to the Nqobo kraal because they saw them, they were chasing them and they went there because they saw them going in there. I don't know if it can be assumed that they went to the Nqobo kraal because they saw these two people that they were chasing go into the Nqobo kraal. That would be my assumption.
JUDGE WILSON: And the trial Judge did not, it appears, which I hadn't had full regard to before, convict on the basis that he believed the evidence of Peter that the applicant fired shots from the doorway. He convicted the applicant on the basis of common purpose. Can we now reject the applicant's evidence as to how he fired the shots and say Peter's evidence must be preferred, that he was in the room, he wasn't firing blindly through the window?
MS THABETHE: I am not sure if it would make any difference whether he was firing inside the house or outside the house. The fact is he fired and people were shot. And as to the question of whether they went inside the house, I think that is what we can never know, maybe we can assume, it is probable that they went inside the kraal that is in the yard. But we are not sure because there were so many houses, if maybe they went into the house that the applicant thought they were going into. I think that's what is not clear.
JUDGE WILSON: If they merely fired thinking they were firing at the people they had been pursuing and by chance they hit these other people, isn't that an act with a political objective? If they fired thinking they were firing at the IFP enemy.
JUDGE WILSON: Yes, but I was suggesting to him when I was questioning him on the bullets and the injuries that it can't be true that he merely fired blindly. He must have been aware of what he was firing at. Once one can find that he was aware of that, or that he is not being frank with the Committee on that, then one rejects the application. But is that a valid conclusion, in the light of what I put to you?
CHAIRMAN: ... if he stood in the doorway without going into the house and he could see the people in the room, he could see there were women and children and he opened fire on them, that would be the end of any political objective,
MS THABETHE: Yes, it would. On the other hand, if he says he stood outside because there were shots coming inside and then he shot because he was supposedly shooting at the people who were shooting at him, then I am not sure if it doesn't discard political objectivity.