Amnesty Hearings

JUDGE POTGIETER: Mr Mkhize, would you just remain standing. Give your full names for the record.

MOSES MOSIGAISAN MKHIZE: (sworn states)

JUDGE POTGIETER: Thank you, you may be seated.

CHAIRPERSON: Sorry, before ...(indistinct - no microphone). Can we have the last witness back for one moment.

RECALL OF MR KWEYAMA

CHAIRPERSON: Mr Kweyama, did you fill in an application form for amnesty?

MR KWEYAMA: Yes.

CHAIRPERSON: And did all of you do this while you were in the same cell?

MR KWEYAMA: Yes, because we were in one cell.

CHAIRPERSON: And were they all handed to a prison warder for him to send on? Is that the normal practice?

MR KWEYAMA: Yes.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

JUDGE POTGIETER: Mr Panday, your client is sworn in.

EXAMINATION BY MR PANDAY: Thank you, Mr Chairman, sorry about that.

Mr Mkhize, is it correct that on the 22nd of April 1993, you together with Mr Shangase, Mr Kweyama and two others had robbed a gun shop in Isipingo?

MR MKHIZE: That's correct.

MR PANDAY: Is it also correct that you were then convicted and sentenced for seven years?

MR MKHIZE: That's correct.

MR PANDAY: And which sentence you've already completed.

MR MKHIZE: Yes, I have.

MR PANDAY: Now Mr Mkhize, we need your help here. Whilst you were in prison, did you apply for indemnity of the act committed?

MR MKHIZE: Yes, I did.

MR PANDAY: Can you recall approximately when you had made this application, which year?

MR MKHIZE: I cannot recall the year, but I did submit that application.

MR PANDAY: Okay. Did you submit this application with others, or by yourself?

MR MKHIZE: We were together.

MR PANDAY: When you talk about "we were together", who are you referring to?

MR MKHIZE: I'm referring to Phinda and Nkosinathi Shangase.

MR PANDAY: And after having filled out the application for indemnity, did you later on also apply for amnesty relating to this incident?

MR MKHIZE: Yes, we did.

MR PANDAY: Now after having applied for amnesty to the TRC, did you receive thereafter any correspondence from them?

MR MKHIZE: No, we did not, we only received correspondence after our release from prison.

MR PANDAY: Okay. Now Mr Mkhize, is it correct that you are residing in the kwaMakutha area?

MR MKHIZE: That is correct.

MR PANDAY: And more specifically, on the 22nd of April 1993, you were still resident in the kwaMakutha area.

MR MKHIZE: Yes, I did reside in kwaMakutha.

MR PANDAY: Now when you were in kwaMakutha, did you belong to any political organisation?

MR MKHIZE: Yes, that's correct, I was a member of the ANC.

MR PANDAY: How long were you a member of the ANC?

MR MKHIZE: I've been a member of the ANC for quite a long time.

MR PANDAY: And more specifically in 1993, were you still a member of the ANC?

MR MKHIZE: Yes, that's correct.

MR PANDAY: Now Mr Mkhize, Mr Shangase has testified that on the 22nd of April 1993, himself together with you, Mr Kweyama and two others had robbed the gun shop in Isipingo, is that correct?

MR MKHIZE: That's correct.

MR PANDAY: And you were acting under the orders of your Unit Commander.

MR MKHIZE: That's correct.

MR PANDAY: Do you know the name of your Unit Commander?

MR MKHIZE: Yes, Sipho Mgadi.

MR PANDAY: Now on the day in question, Mr Shangase also testified that you together with two others entered the gun shop whilst he stood on the outside.

MR MKHIZE: That's correct.

MR PANDAY: Now who decided that you would have to go inside the gun shop?

MR MKHIZE: It was ordered by the Commander.

MR PANDAY: And on the day in question were you armed?

MR MKHIZE: Yes.

MR PANDAY: What were you armed with?

MR MKHIZE: I was armed with a 9mm.

MR PANDAY: And of the two others that went in with you, were they armed?

MR MKHIZE: Yes, they were.

MR PANDAY: What sort of weapons did they have on them?

MR MKHIZE: One had a firearm and the other had a handgrenade.

MR PANDAY: Right, now do you know the reason as to why the five of you were going to rob this gun shop?

MR MKHIZE: Yes.

MR PANDAY: Could you please state that to the Commission.

MR MKHIZE: It was for the reason that there was political violence in kwaMakutha, between the ANC and IFP. We were under attack from the IFP who were colluding with the KwaZulu Police. The situation was so bad that I also had to flee my home, then go into hiding. Therefore the reason we went to rob the shop was because we needed firearms. Were it not for the attacks we suffered we would have had no reason to do so.

MR PANDAY: Now before - you see, you again mention that you went in to obtain the arms, did the organisation have firearms before you went to rob the gun shop?

MR MKHIZE: No, we didn't.

MR PANDAY: Do you know where you obtained the firearms when you went to rob the gun shop? The ones you all used.

MR MKHIZE: No, I did not know.

MR PANDAY: Then how were you given a firearm?

MR MKHIZE: I was given a firearm by Sipho Mgadi and I do not know where he had obtained them from.

MR PANDAY: Now on the day when you were robbing the gun shop, you were the one that went inside with the two others, that's correct.

MR MKHIZE: That's correct.

MR PANDAY: Can you explain to the Committee what was taken from this gun shop.

MR MKHIZE: We obtained 11 firearms and 5 magazines.

MR PANDAY: Is that all that was taken?

MR MKHIZE: That's correct.

MR PANDAY: Now on page 28 of the bundle of documents there's a whole list of items, also including cash, that was taken, can you comment on that list? Do you want to turn to page 28?

MR MKHIZE: Yes, I can comment because I was inside the gun shop. No-one took money from the shop, we only took those things we had intended to rob and those were the firearms.

MR PANDAY: And when you were arrested did the police recover any firearms from you?

MR MKHIZE: Yes.

MR PANDAY: How many did they recover from you?

MR MKHIZE: One firearm.

MR PANDAY: One firearm. And do you know in total how many firearms were recovered?

MR MKHIZE: No, I do not know - or yes, I do, there were three in all. One that was in my possession and the other two were with Mr Shangase and Mr Kweyama, as well as one that was recovered from Mr Msani, but that was not obtained from the gun shop.

MR PANDAY: Now Mr Mkhize, when this gun shop was robbed, did you in any way benefit financially?

MR MKHIZE: No, we did not.

MR PANDAY: What sort of benefit did you derive by robbing this gun shop?

MR MKHIZE: It was obtaining the firearms.

MR PANDAY: For what purpose were these firearms being obtained?

MR MKHIZE: It was for the protection of our community who were under attack from the KwaZulu Police and the IFP. We were going to use them for self-defence and it was Mr Mgadi's suggesting that we should go rob that gun shop so we could acquire firearms for protection.

MR PANDAY: Thank you, Mr Chairman, that is the evidence.

NO FURTHER QUESTIONS BY MR PANDAY

CROSS-EXAMINATION BY MS THABETHE: Thank you, Mr Chair, just one question.

Mr Mkhize, when you were given a gun by Mr Mgadi, what were you instructed to do with it?

MR MKHIZE: I was told to use it for protection in case anything happened.

MS THABETHE: Thank you, Mr Chair.

NO FURTHER QUESTIONS BY MS THABETHE

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MR PANDAY: Mr Chairman, that is the evidence of the applicants. If you want to adjourn to get any feedback from our investigators.

CHAIRPERSON: ...(indistinct - no microphone) we had arranged to adjourn. Before we adjourn I want some more advice.

MR PANDAY: ...(inaudible)

CHAIRPERSON: 45 minutes.

MR PANDAY: ...(inaudible)

CHAIRPERSON: Quarter to, yes, because we get fed here, so it's - but I thought they made arrangements for all of you.

MR PANDAY: ...(inaudible)

CHAIRPERSON: If you discover they have you can run back and tell me and we can shorten the proceedings, otherwise of course till quarter to three.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr Panday, have you any further witnesses you wish to call?

MR PANDAY: No, Mr Chairman.

MS THABETHE: No witness, Mr Chairman.

CHAIRPERSON: Do you agree that on the evidence we have heard, we should come to the conclusion that all three applicants did apply for amnesty?

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: And on the evidence we've heard, do you oppose that application?

MS THABETHE: Not at all, Mr Chair.

CHAIRPERSON: Is there anything in particular you wish to tell us?

MR PANDAY ADDRESSES: Mr Chairman, save to say that the applicants have fulfilled the requirements laid down in terms of this being a political act, as well as the full disclosure.

CHAIRPERSON: And it was committed in the conflict of the past, between two recognised political organisations.

MR PANDAY: Yes, Mr Chairman, that is correct.

CHAIRPERSON: And they have denied having taken any money. We have in the papers put before us, a statement that money was missing, but we have not heard any evidence to that effect.

MR PANDAY: That is correct, Mr Chairman, the applicants that stand before this Commission, they've been quite clear as to what they've taken and what they haven't taken. The applicants themselves have nothing to lose to come to this Committee, they have served their sentence, they have always maintained, even at court, that this is what they took, so why further investigations as to why their representation was not completed to the fullest to try and establish the veracity of what the Complainant said, and that we cannot comment on, but as it stands they have disclosed to the best of their knowledge. They could have very well dismissed and admitted, yes, we took everything and it would have made life much easier for everybody sitting here, but they are quite clear as to what they took. All three of them. And it is my respectful submission that they've been truthful, honest and they have disclosed ...(intervention)

CHAIRPERSON: What was the reference or page number of the pages of what was taken and found?

MR PANDAY: That was on page 28, Mr Chairman.

CHAIRPERSON: The only things on that that may possibly be stuff that was taken that they have not spoken about - no, the leather holster does not appear as one of the stolen articles, nor does the black plastic packet.

MR PANDAY: Yes, Mr Chairman.

CHAIRPERSON: So what was found was three stolen pistols and one other pistol that was not part of what was stolen.

MR PANDAY: Which was not part of the ...

CHAIRPERSON: None of the other, the oil or those things were found on them.

MR PANDAY: None on them, Mr Chairman.

CHAIRPERSON: Does that complete the hearing set down for today?

MS THABETHE ADDRESSES: Yes, Mr Chair, it does. Maybe in a way of submission as well, I would refer the Committee members also to page 40, 43 to 44 of the judgment where the Judge makes it clear or states it clearly that the accused or the applicants raised the aspect of having committed this act for political reasons and maybe in making the decision the Committee could consider that as well.

CHAIRPERSON: Thank you.

MS THABETHE: Thank you, Mr Chair. Further, Mr Chair, I just want guidance and direction, with Mr Kweyama there is a reference number that was given by our office, but this is - with regard to Mr Mkhize's application there's no reference number and I ...

CHAIRPERSON: That was something we were going to approach you about. Can you please obtain a number, because I don't think we can allocate a number, we'll find we've allocated somebody else's. So if you could communicate with the office in Cape Town and indicate that we have inserted another matter onto the roll, and allocate a number to it.

MS THABETHE: I'll do that, Mr Chair.

CHAIRPERSON: Is the same going to happen with any of the ones tomorrow?

MS THABETHE: Yes, Mr Chair, Mnyandu and ...

CHAIRPERSON: Perhaps you'd better as a safeguard, not that I've come to any decision in that regard at all, get some more numbers.

MR PANDAY: Sorry, Mr Chairman, just for confirmation the application of Hlangbanani Msani, is it taken that that matter is to be adjourned or to ...?

CHAIRPERSON: Adjourned. It seems to me, subject to anything that you may have to say or that you may have to say, that it is not a matter that demands a public hearing.

MR PANDAY: I accept that.

CHAIRPERSON: It is - well, what we've got, we don't know how brutal the highjacking was, it was an armed robbery, but I think it's a matter we can discuss with our Evidence Leader and if there was no injury inflicted and matters of that nature, it's a matter that could be dealt with in chambers.

MR PANDAY: As Mr Chairman pleases.

CHAIRPERSON: But we'll certainly let you know whatever we intend to do.

MS THABETHE: Thank you, Mr Chair.

CHAIRPERSON: I think we indicated 9 o'clock didn't we, to the other people. We'll adjourn till 9 o'clock tomorrow morning.

MS THABETHE: As the Committee pleases.

COMMITTEE ADJOURNS