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Type AMNESTY HEARINGS
Starting Date 13 July 1998
Names VICTOR MTHANDENI MTHEMBU
Case Number AM 1707/96
Matter SEBOKENG ATTACK, BOIPATONG ATTACK
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MR BERGER: Thank you Chairperson. As from today, Advocate P G Malindi: M-A-L-I-N-D-I will be assisting in the representation of the victims. As soon as we have finalised the list of which victims are represented by Advocate Malindi, Ms Cambanis and me, we will hand those lists up to the Committee so that we can have finality on who is being represented by whom.
CHAIRPERSON: The one matter that was outstanding as from Friday was the issue of whether or not Mr Berger can make use of a confession in cross-examining the applicant, Mr Mthembu. Mr Strydom was going to indicate to us this morning the basis of his objections to that line of cross-examination.
MR STRYDOM: Mr Chairperson, Mr Berger indicated to me that he only wanted to use the one confession of Mr Mkhize and I have had insight of the confession and apart from stating that that confession was made not freely and voluntarily but under duress, on behalf of the applicants we will have no objection is that document is used during cross-examination.
MR BERGER: Chairperson, there are two points I wish to make. The first is that I informed Mr Strydom on Friday that Mr Mkhize's confession was the only confession from amongst the applicants that I had in my possession at the moment that I intend using but that I do have other confessions of people who are non-applicants whose I intend using. In fact I think I made that clear during the proceedings as well on Friday.
The second point is Chairperson, that after I showed Mr Strydom the confession on Friday after we had adjourned, he read through it and I asked him what his position was and he informed me that he was objecting to my use of that confession. I'm somewhat taken aback by his attitude considering that I spent time having to research this point and I would have appreciated it if I could have been notified in advance.
CHAIRPERSON: I suppose you should be thankful of the fact that he has reflected on the matter properly and he has withdrawn his objection to the matter. In regard to the other confessions perhaps we will follow the same procedure and that is make them available to your colleagues but I think whilst one doesn't want to curtail the cross-examination of the applicant and the use of any document that might be relevant for the purposes of cross-examination, I think one also has to reflect on what would be the fact of putting a confession by somebody else on these applicants and what would be the value of that evidence if any.
CHAIRPERSON: I think one has to bear that in mind in the interest of shortening the time and not burdening these proceedings with undue documents which in the end may or may not give any assistance in arriving at the decision which we have to reach.
MS PRETORIUS: Mr Chairperson, before we proceed, may I just suggest that before these confessions are used, whether we may have insight into them as well the statement of the witnesses that Mr Mthembu was cross-examined on Friday and who were nameless witnesses. We do not have copies of those statements and I would like to ask Mr Berger if he can give us copies of those statements.
MR BERGER: I have prepared copies for my learned friends and for the Committee. Perhaps this would be an appropriate point to hand them up. The first document is a copy from Mr Mthembu's identity document. You will recall Mr Mthembu said he had a licence for two guns, this copy shows that he has a licence for three guns. If I may hand them in. Chairperson, I believe the last exhibit was Exhibit B so this would become Exhibit C.
Another document which will then be marked Exhibit D is the confidential memorandum from which I got the information that someone had deposed to an affidavit concerning hitsquads that were operating from the Kwamadala Hostel. If I could hand that up. It will be Exhibit D, Chairperson.
MR BERGER: My submission is that it's a question of principle or it's a question of law whether or not these confessions are admissible in these proceedings and that it doesn't depend on the contents of the confessions, so I'm quite happy to hand in the confessions when I put them to the witness but I would be loathe, unless the Committee directs me to do so, to hand over all the confessions now because that would take away some of the advantages of cross-examination.
CHAIRPERSON: I think what everyone who is involved in these proceedings must realise is that the purpose of these hearings is to get to the truth as far as that is practical. It is highly undesirable that this should be turned into either a criminal trial or a civil proceeding. We will not as a Committee countenance any attempt to convert this inquiry into those proceedings because we do not believe that it is in the interest of everyone involved here that that should happen. If there are documents that will be used, those documents must as far as is possible be made available to all the legal representatives so that they can prepare.
CHAIRPERSON: Yes, very well. Is there a way the contents of these confessions can be put to the witness so that we don't have to go tediously through each and every confession or to they not lend themselves to that procedure?
MR BERGER: Chairperson, as far as possible I will attempt to summarise what the confessions say but the whole point of the confessions is that they do say different things and that's what I want to canvass with Mr Mthembu.
Mr Mthembu, on Friday we were dealing with the reason that you gave for attacking Boipatong and one of the things that you said was that two people had been killed in Boipatong and you mentioned a person by the name of Gazu and a person by the name of Mbatha. Now I'm putting to you that no person by the name of Gazu and no person by the name of Mbatha was killed in Boipatong before the attack. Do you have any comment on that?
"We realised that we partook in the massacre of people, some of whom were my family and friends and I feel very bad about this"
MR MTHEMBU: Because of the fact that we never broke up I think she is still my girlfriend but we cannot see each other anymore and I don't know where she is now and she also doesn't know where I am now.
MR MTHEMBU: Please try to understand that I was not only referring to the person I was in love with or the family members thereof but I was speaking generally about the attack on the people of Boipatong and I feel badly that people were killed and I ask for forgiveness for everything that happened, from the family members of the people who were victimised.
MR MTHEMBU: As far as I know I do not have knowledge of that. What I know is that prior to the attack many IFP members had left the township because they were being terrorised there and they fled to Kwamadala Hostel.
MR BERGER: Isn't it correct that the people who had been chased out of the township were people who had been accused by the community of being criminals who stole, who raped, who stabbed and who killed people? Isn't that why they were chased out of the township?
MR BERGER: Alright. Let me refer you then to the confession of one of your co-applicants, Mr Bhekinkosi Mkhize. This is the man who you say took the decision or one of the people who took the decision to attack Boipatong, do you remember that?
MR BERGER: If you look at his confession which he made on the 11th of July 1992 very shortly after the massacre, if you'll turn to page four you'll see there he describes what happened on the night of the 17th and if you look in the middle of the page ...[intervention]
"I was at my room at the Kwamadala Hostel. I liver there in room 8. That Wednesday at that time I was at the stadium inside the hostel. I and other people at that hostel decided that the people are preventing us from going outside of the hostel to the shops. We then decided to attack the people who lived in the vicinity of the hostel"
CHAIRPERSON: Do we know how then they were prevented? Were they prevented by being told: "Don't go out of your hostel" or were they being prevented by killed if they're out or if they've been prevented by being harassed? I mean do you we know?
CHAIRPERSON: So do you think therefore it's fair to put to the witness that he doesn't say so, in view of the fact that the confession you've just read doesn't indicate, all it says they were preventing people from going out of the hostel.
CHAIRPERSON: What you put to this witness is that Mkhize makes no mention that the attack was in retaliation of the people who had been killed in Boipatong, of preventing them from going ...[intervention]
CHAIRPERSON: I'm saying that it's a bit unfair because from you've put to the witness by way of, from this confession is that people were being prevented. There is no indication from this confession as to how that occurred. Did it occur by way of killing people, harassing them, one doesn't know. That is why I'm saying that it may well be that that's what it was, they were prevented by being killed but one doesn't know.
MR BERGER: Chairperson, the point that I really wanted Mr Mthembu to comment on was that one would have expected Mr Mkhize, if IFP members were being killed and that that was the reason for the attack, one would have expected Mr Mkhize to say so in a confession which ultimately would have been something exculpatory.
CHAIRPERSON: I think what Mr Berger wants to emphasise is that if the attack on Boipatong was indeed in retaliation of the people who had been killed in Boipatong given the fact that this was a confession dealing precisely with what the attack on Boipatong, one would have expected Mr Mkhize to have said so in so many words in this confession, namely that: "We went to attack them because they had killed". Do you understand the point that Mr Berger is emphasising?
MR MTHEMBU: Even though I may not say whether that is the reason or not but the main reason is that our people were being killed in Boipatong. I think that is the reason why a decision was taken because people realised that people were being killed.
"Mr Vanana Zulu was staying at Boipatong and the comrades chased him away and burnt his house at Majola Section in Boipatong. This they did after they had discovered that Vanana Zulu was a member of the IFP"
MR BERGER: Well was it a week before the attack on Boipatong, a month before the attack on Boipatong, a few months before the attack on Boipatong? Can you give the Committee some idea of the time that had lapsed between the burning of Mr Vanana Zulu's house and the attack on Boipatong?
"was the sole proprietor of beer inside the hostel. The comrades discovered that one of the Boipatong Bottle Store owners sold Mr Mkhize some beer and then threatened to kill the owner. Mr Mkhize became angry and agreed with Mr Chonco to attack the residents of Boipatong"
So in response to the question of: "When was it decided to attack the residents of Boipatong", you identified two events, the one is the burning of Vanana Zulu's house and the second is when Mr Mkhize became angry because is supply of beer was threatened with being cut off. Those are the two events which prompted the attack on Boipatong, is that correct?
MR BERGER: You see because what I want to put to you is that this reason of Mr Mkhize's that you articulate in this paragraph is clearly a personal reason of his for wanting to attack Boipatong, would you agree with that?
MR BERGER: Chairperson, perhaps it could be marked F. Can I hand out while I'm going because it will just go a lot quicker. Exhibit G would be the confession of Musa Dlamini and then Exhibit H would be the confession of Njanelwa Ndaba.
MR BERGER: You see my point is, when you were asked the question: "When was it decided to attack Boipatong"?, you pointed to two events as being the trigger for the attack on Boipatong. The one was the burning of Mr Vanana Zulu's house which occurred before July 1991.
MR BERGER: In Exhibit F, this is the confession of Philip Mpena, he gives an explanation about what happened on the night of the 17th of June 1992. He says that you were called to the stadium, he was called to the stadium and then he says
"A man the name of Mkhize came in and he said we must attack Boipatong. We then went to Boipatong and we killed people there"
Again the point I'm making to you is that nowhere in this confession is there mention of the fact that: "we went to attack Boipatong because our people were being killed". And again I'm suggesting to you that if that were the reason and if someone was making a confession one would have expected him to say: "Yes, I confess I went to kill the people but I went to kill the people because my people were being killed". It doesn't say that. Do you have an explanation for that?
MR BERGER: I can just tell you again, in the next confession, Exhibit G of Muso Tokozani Dlamini, again he gives an explanation about the attack, again no mention of the attack, of IFP supporters being killed and that's why there was an attack. Silent on that aspect. Can you comment?
MR BERGER: Then I want to refer you to Exhibit H, the affidavit of Mr Njanelwa Ndaba. In paragraph 7 of that affidavit he gives a very interesting explanation for why the people of Boipatong were attacked. He says the following at paragraph 7 and I will translate. He says
"The reasons which were given to me why Boipatong was attacked by the residents of Kwamadala Hostel on the 17th of June 1992 and killed is as follows"
And he talks about two people who told him - I'll summarise this for you, about the residents of Boipatong being protected by people from Sharpeville but he says that in return for this protection these people from Sharpeville demanded money from the people of Boipatong. And then I'll read to you what he says in the last paragraph. He says:
"What I'm actually saying is that from conversations with people who live in Boipatong and who work at Iscor, also from conversations with residents of the Kwamadala Hostel who work at Iscor and in other places, the reason for the attack on the residents of Boipatong is as a result of the people who were protecting"
"Verder dat die persone wat Sirela, Boipatong, die nag van 17 Junie 1992 aangeval en gedood het soos reeds vermeld inwoners van die Kwamadala Hostel is en kon hulle blykbaar nie die sogenaamde bewakers van Sirela, Boipatong opspoor nie en het hulle toe besluit om nie met leë hande terugtekeer nie, met ander woorde gaan om mense aanteval en dan niks doen nie. Hulle het toe besluit om maar in Sirela, Boipatong integaan en wraak op ander inwoners te neem"
So he says that the residents of Kwamadala went out to attack the guards from Sharpeville and when they couldn't find them, instead of coming back with empty hands then they decided to exact revenge on the other residents of Boipatong. Was that the reason for the attack Mr Mthembu?
MR MTHEMBU: Mr Berger, as I have explained to you earlier on I am still maintaining that people were attacked because they were harassing our people. What you are reading from that statement, even though I do not know whose statement it is, but that's how perhaps that person sees it and I therefore cannot say something about something that I don't know.
MR BERGER: No, Chairperson, it just talks about: "wraak" but what the statement does indicate is that the attack was for one purpose and then when that purpose couldn't be achieved then it was decided well let's exact revenge on the people of Boipatong.
MR MTHEMBU: What I have said here before this Committee is the truth. If you dispute it maybe you can give me the truth because you know you were present and you have your reasons as to why you're disputing my truth.
CHAIRPERSON: Mr Mthembu, when counsel puts questions to you it does not suggest that he was present when the attack took place. The statements that he's putting to you as based on what he has been told by those individuals whom he represents, do you understand that?
CHAIRPERSON: So when he puts a proposition to you and you do not agree with it you must say so, either: "Yes, I agree with you, that is the reason" or "No, I do not agree with you", do you understand that?
MR BERGER: Mr Mthembu, the reason I'm putting to you, the reason I put it to you, that you haven't disclosed the true reasons for the attack on Boipatong is because all the statements I've referred you to come up with either different reasons for the attack or they don't mention your reasons and in particular when you were asked: "When was it decided to attack Boipatong"?, you give two reasons or two events, one being an event which took place more than a year before the attack on Boipatong and the other one which has only to do with Mr Mkhize's beer supply being cut off. That is why I'm putting it to you that you haven't disclosed the true reason for the attack on Boipatong.
CHAIRPERSON: In all fairness to the witness you must also put to him that in his affidavit at page 29 he does indicate that Boipatong was selected as a target for the attacks because they also threatened the residents of Kwamadala Hostel. They were not allowed to buy at Boipatong shops during the weekends and the residents who were IFP members were evicted from Boipatong. They also necklaced the IFP members. This he gives as the reason for the attack.
That's in response Mr Berger to the direct question: "Why was Boipatong selected as the target of the attack"? So I don't think you are being fair, as the Chairperson says, when you take the reason of the timeframe that's asked in 17.3, you don't add in the reason given in relation to 17.4 as well. I just think you're stretching a bit otherwise.
MR BERGER: Chairperson and Mr Lax, I have canvassed with the witness the reasons that he has articulated about people being threatened from, people being prevented from shopping, people being evicted from Boipatong, people being killed. I did that first. I was focusing on 17.3, not to say that there isn't 17.4 but to say that in 17.3 he was asked for when and he focused on two events.
CHAIRPERSON: I perfectly understand that but what we're trying to prevent is for you to put it as a fact that the only reasons he has advanced are those that you've just put to him. That is what we are trying to prevent because I think that's unfair to the witness.
MR MTHEMBU: Mr Berger, I could also see people being attacked. We kept burying people, burying the bones that had been, bones of people who had been necklaced at Boipatong and we also had meetings and they would tell us about a funeral where we had to go and bury a person and they were informing us about the death of the people at the hostel.
CHAIRPERSON: Perhaps for our benefit, is it an issue that there was animosity between the IFP and the ANC in Boipatong, in particular between the residents of Kwamadala Hostel and the residents of Boipatong?
MR BERGER: And Chairperson, so that I don't go wider than I intend to, not all the residents of Boipatong were ANC members or ANC supporters or ANC sympathisers, there were ANC members and supporters and sympathisers in Boipatong. There were ANC structures in Boipatong and there was animosity between ANC members in Boipatong and IFP members in Kwamadala. That is not in dispute.
MR BERGER: The words: "Attack on Boipatong", either as a possibility or as a reality was never discussed at any IFP meeting other than the meeting on the 17th of June in the evening in the stadium, is that correct?
MR MTHEMBU: What I heard was that our people had died in multitudes in Boipatong and it had come to a point where we had to show them that the people who had been killed were also human beings. Nobody should be killed without a reason.
MR BERGER: Chairperson, they were told to go and attack Boipatong, I'm asking him if they were told why they were going to go and attack, the reason for the attack and his original answer was that nobody told him about why they were going to attack Boipatong.
MR MTHEMBU: Sir, I hope you understand when I say that on the meeting of the 17th Damarra said that it had come to a point where we could not tolerate this anymore and we had to show them that we could not tolerate it anymore. That is what I've explained here.
MR BERGER: As far as you could see - well, let me ask you this then Mr Mthembu, when Mr Chonco said: "Our people are being killed in droves, it's time now, we must now go and kill them", what was the response of everyone else at that meeting?
MR MTHEMBU: The people who were there, even though I cannot recall what their response was, it became obvious to them that if the time had come for the people to be attacked then that be so. It had come to a point where it was no longer tolerable.
"A few minutes after the news I was surprised when the siren went and I noticed that they wanted all the people to go to the stadium where we used to hold meetings"
CHAIRPERSON: I think what he's trying to emphasise here is that he doesn't know whether all the people were there, there were people who were at work. Unless there's really something that turns on the fact that everyone was there, no-one had gone to work on that day, on that night.
MR MTHEMBU: Mr Berger, you should understand what I'm saying. That evening when I say all people went to the stadium I mean all the people who were present at Kwamadala Hostel that night. I actually referred to the people who were at the hostel at the time.
MR BERGER: I put it to you that many, many more than 300 people, some witnesses have put it between 800 and 1000 people attacked Boipatong that night, now it's your evidence that the men who were at the stadium then went to attack Boipatong. So I'm putting to you that those men in the stadium must have numbered far in excess of 300 men, somewhere between 800 and 1000.
CHAIRPERSON: What Mr Berger is putting to you is this, you've estimated the men who were there at between 200 and 300, what Mr Berger is saying, according to his instructions there were approximately between 800 and 1000 men present at the stadium. What do you say to that figure, do you agree with it or don't you agree with it?
MR BERGER: Mr Mthembu, you told the Committee last week that you were not targeting the residents generally of Boipatong but that you went to Boipatong to kill the members of the self-defence units, am I right?
MR BERGER: Well that's my point you see. You were a leading member of one of the IFP structures in the Kwamadala Hostel, you had access to the other structure, that's the Senior Committee, Mr Vanana Zulu was the Chair of that committee and you had access to other structures in the Transvaal at that time in the IFP, so if you were concerned that the ANC was killing members of the IFP, why did you not identify those ANC people and go to Boipatong to kill them?
MR MTHEMBU: Mr Berger, if you follow this up very carefully I will say that there was no time for us to go to those people, call upon them and talk to them because we too were afraid and one would not know when one was going to be attacked.
MR BERGER: I think what you're being asked is this, not every resident of Boipatong was responsible for killing IFP members or the residents from Kwamadala Hostel, now what you're being asked is why did you not go out into the township and only target those individuals who were responsible for the attack on the residents of Kwamadala Hostel or the IFP?
MR BERGER: Mr Mthembu, you can't run away from IFP structures. If you claim to have been a leader of the IFP you would know the structure of the IFP both in Kwamadala as well as in the Province as well as in the country, you would know what the various structures are, am I right?
MR MTHEMBU: Mr Berger, yes that is correct but I would like to explain that myself being Victor was not so much concentrating on the politics because many of us are not educated, we did not have the opportunity to acquire education and it is for that reason that I am saying I was not concentrating on political matters. There were other things that I had to do like looking after my family and my children.
MR BERGER: Well then if this was a political problem between the ANC and the IFP, you as a leader of the IFP would have known of the IFP structures that were available to you, that you could have gone to determine who in the ANC was responsible for these killings or at least who in the ANC was in control in Boipatong, you say that you couldn't have done that?
MR MTHEMBU: As I have explained Sir, there are things that I was supposed to know and I didn't have to know everything else. I was only leader, Vice-Chairman within the youth and I would not have known who was doing what and who was not doing what, that was not my responsibility.
MR BERGER: I'm putting it to you that you're not telling the truth and I'll tell you why. Mr Ernest Tsotso's house, the Chairperson of the ANC in Boipatong was attacked at a time when you were already an IFP leader in the hostel, how is it possible that you would not have known about that?
MR MTHEMBU: As I have explained Sir, that I was not concentrating on politics considering that I was not educated. These matters require educated people, not people like me and therefore I would not have known exactly how these things were happening.
MR BERGER: Are you telling the Committee that you went, you deliberately went to Boipatong to kill as many people as you possibly could in the hope that some of those who you killed would have been ANC members responsible for the violence against IFP members?
MR BERGER: It wasn't every ANC member that you wanted to kill, am I right? It was only those ANC members who were in the self-defence units that you wanted to kill because they were responsible for the death of IFP members?
MR BERGER: I might just tell you that there was no Dlamini who was killed in Boipatong so your evidence about your girlfriend and her family seems to stand alone but let me come back to my question. You only wanted to kill certain ANC members, is that right?
MR PRIOR: Mr Chairman, I'm sorry to interrupt but with respect, has this not been canvassed fairly fully before? We've had the witnesses answer, there was an attack, innocent people, when I say innocent people, those who weren't ANC might well have been killed but this has been dealt with at length by Mr Berger, with respect, and I don't where it's getting us.
Chairperson, we've made copies of this map. Unfortunately we haven't made enough and I would ask my learned friends to share. We have five copies of this map - the reason that it won't help to make copies of these is because we have coloured in in pink the houses where people were killed, we've indicated in green where people were injured and we've indicated in orange where houses were damaged but no-one was killed or injured. If I could hand this up as Exhibit I.
MR BERGER: Kwamadala Hostel is on the western side of the township, not depicted on this map. It's to the west, in other words to the left of the map and you can see in the middle of the township there is a street called Umzumvubu, do you see that?
MR BERGER: Now all the houses dotted in pink, those are houses where people were killed. The houses that are dotted in green, and some houses have both pink and green, the ones dotted in green are where people were injured but not killed.
MR STRYDOM: Chairperson, I'm sorry to interrupt. This plan was also handed to me. On the righthand side of the plan of the plan the informal settlements are shown, Slovo Part, and all those houses are marked pink. Now I can give the Committee the assurance that there were some killings but not in all those houses, that's not correct.
MR BERGER: Chairperson, I was coming to that. The reason is that not one house in Slovo Park was left unscathed. The houses - it's not possible to identify in which houses people were killed but the majority of people who were killed were killed in Slovo Park. I'm sure my learned friend will confirm that. It's not to suggest that in every house in Slovo Park someone was killed. We don't know in which houses they were killed but most people were killed there and not a single house was left unscathed.
MR BERGER: No. There are no streets and there are no addresses in Slovo Park so it's very difficult to say: in this house someone was killed and not in that house, but what we're trying to indicate is that most of the people who were killed were killed in Slovo Park and not a single house in Slovo Park was left unscathed, not to say that a person was killed in every house in Slovo Park. That is our difficulty.
CHAIRPERSON: It is misleading. Do you see what I'm saying? Because you are not saying and you cannot say that people were killed in each and every one of these houses because it's impossible to do that.
MR BERGER: No, Judge, Chairperson, we can't do that unless we colour them all in in orange and then say that just because they're coloured in in orange it doesn't mean that people weren't killed there. You see there's that difficulty. Perhaps what we should do ...[intervention]
MR LAX: Mr Berger, I'm hearing your problem but as the map stands it's misrepresenting the situation so what I'd like to suggest, subject to your colleagues being in agreement is that we ignore the colour pink there for the time being, that at the very least you colour them orange because you say not one house was left unscathed in the sense that they were all damaged and that you leave it as an open question as to which particular individual houses somebody got killed or injured in but that you at least put it to the witness that in those houses X number of people were killed and X number of people were injured. That you do - you can say with some degree of certainly how many people died in Slovo Park and how many people were injured in Slovo Park although you can't say in which specific houses they were killed, is that right?
CHAIRPERSON: Perhaps you should find another formula then of reflecting that because the houses that we accept that all these houses we damaged but in the course of that damage people may have been killed or may have been injured.
CHAIRPERSON: You can leave the pink except that you can indicate that pink reflects the houses that were damaged in which people could either have been killed or injured and then you can give us numbers in due course.
MR STRYDOM: To assist my learned friend, I've got the advantage that I was in the criminal trial and I've got certain schedules here and I've calculated that 16 people were killed in Slovo Park and the total of house where these people were staying in, I think one person stayed in a caravan but also in Slovo Park but that can also be called a house, it's approximately nine houses where people were killed in Slovo Park.
MR STRYDOM: I can also check that on this schedule of mine. I calculate three people that testified at the criminal trial on charges of attempted murder but I must say that in my schedule I have certain people, I can calculate them but I don't have an address and they may also be people staying in Slovo Park but I'll calculate those people as well. I've got 10 names here without addresses that may be people that stayed at Slovo Park at that time.
MR STRYDOM: No, the last 10 I don't know whether they're from Slovo Park, I just see on my schedule for some reason or another I did not add addresses and it may be because there was not a fixed address like one would expect in Slovo Park.
MR BERGER: Chairperson, our information doesn't seem to tally with Mr Strydom's. What we have is a schedule detailing all the victims of the attack, house numbers in Slovo Park, people who were killed, people who were injured, as well as people in Boipatong and perhaps we could make this available to the Committee.
CHAIRPERSON: But insofar as Mr Mthembu is concerned now, what is it that you want to canvass with him in regard to this, because it may well be that with the assistance of Mr Strydom who was at the proceedings, you can check his information as against your instructions and then perhaps in due course you could then submit to the Committee the revised key to the map which would indicate to us, on the basis of an agreed fax, that is the position if you can but if you can't then you'd have to present that conflicting information. I'm just concerned about the relevance of the figures. Are the figures really relevant to cross-examination of this witness?
Mr Mthembu, coming back to this map in front of you, leave out of account for the time being Slovo Park. Now in Boipatong itself, what you see as orange, those are the houses that were attacked, pink is where people were killed and green is where people were injured. Do you understand this?
MR BERGER: Now, you will notice that there is a large section of Boipatong that was not touched by the attack. You can see the lefthand side of the map and about two thirds of the way up you will see that there is no orange, no pink and no green which means that those houses were not attacked. Do you see that?
MR BERGER: It's then difficult to understand, if the attackers surrounded Boipatong and then everybody went in to attack, how it is that there is a whole section of Boipatong that is not affected by the attackers. Would you agree it's quite strange?
MR MTHEMBU: As I explained earlier Mr Berger that the amount or the number that I've explained, the 200 or 300 people I referred to, if you look at this map it shows the area of Boipatong and it is not possible for the number of people that I mentioned to surround the entire township as reflected on the map.
MR BERGER: But you yourself entered the township from Umzumvubu Street. Now you can see that the entrance to the township, that entrance that you're came in on is on the lefthand side of the map in the middle of the page, that's where you entered to the township. You can see it's written there: Umzumvubu.
MR BERGER: Well you told the Committee that you entered on Umzumvubu Street. I'm just pointing out where that is on the map. You can see it half way down the page but on the extreme lefthand side of the map, you see there Umzumvubu.
MR BERGER: Now my point is this, if you and many of your co-attackers entered the township at that point to kill people, to damage their houses, to destroy their property, why is it that there is no destruction at all for approximately one kilometre into Boipatong, all the way along Umzumvubu Street until you get to Lekwa Street, you can see there's a park in the centre, all the way down to Bapedi Street, Majola Street, Barolong Street, Mosheshwe, going up from Umzumvubu, Mpeka Street, Batswana Street. It's only when you get to Batswana Street you can see two houses there that were attacked. Do you see that?
MR MTHEMBU: Mr Berger, I think I told you before that I did not know Boipatong well. What you should note is that where it's written "Kwamadala" on the left-hand side of the map, did you say this is where houses are burnt down? What you must understand is that, as a person who doesn't know Boipatong, this is where we gained entrance into Boipatong, where houses and some people were injured.
MR BERGER: No, Mr Mthembu, you told the Committee that you entered Boipatong on Umzumvubu Street and you knew it was Umzumvubu Street because you saw the sign. Now, we can see where Umzumvubu Street is.
MR MTHEMBU: I see it, Mr Berger, but what you should know, I am trying to explain this, that as a person who doesn't know Boipatong well, if I say we went through Umzumvubu, I am trying to explain that this side of the township we went in through, from Kwamadala Hostel it is obvious from the map that which side we would enter through.
CHAIRPERSON: You see, what is being put to you is that when you testified, you suggested in your evidence that you entered Boipatong, that is you personally entered Boipatong through Umzumvubu Street, do you understand that?
CHAIRPERSON: Now what's being put to you is, if one accepts that you entered Boipatong through Umzumvubu Street, as you can see in Exhibit G, okay, there is nothing on the map which indicates that there is any damage to any of the houses near Umzumvubu Street. The first, at least damage to the house only occurred as from Bapedi Street. Do you understand that?
MR BERGER: Mr Mthembu, you must have an explanation for how that happened, because, according to you, you were simply told at the stadium, "We're going to attack Boipatong", no other plans were discussed at the stadium, or at any time, according to you?
MR MTHEMBU: In other words, are you trying to tell me that, as we are going to attack, there are many spaces in that map reflecting that there were people who were not attacked, are you trying to tell me that we should have attacked this area?
MR MTHEMBU: Are you dividing this area into two? What I know is that people were attacked in Boipatong. If you ask me why we didn't attack some people or some of the area, I do not have a response to that.
MR BERGER: And I can tell you that his house was in this area of Majola Street that wasn't attacked, and that in this area of Boipatong, the residents were mainly Zulu and Xhosa speaking. Wasn't this area deliberately left alone?
MR BERGER: And you see the strangest thing of it all is that Mr Tsotso's house is also in Majola Street, in fact it's almost across the road from where Mr Vanana Zulu's house was, and his house, Mr Tsotso's house, also wasn't attacked.
MR BERGER: The point is, Mr Tsotso was the chairperson of the ANC in the area, his house was left untouched because he was living in an area where there were predominantly Zulu and Xhosa speaking people.
MR BERGER: Mr Mthembu, can I ask the questions? What I'm putting to you is that, if you were targeting the ANC, you would have targeted Mr Tsotso's house, but you didn't, you left his house alone, because he was in an area of people that you knew might be sympathetic to the IFP.
MR BERGER: If you were targeting the ANC, Mr Mthembu, can you tell the Committee why it is that three year old Mita Moleti, that little girl who's in the wheelchair today, why she was stabbed, in fact her skull was hacked with a panga, can you explain that?
MR MTHEMBU: Mr Berger, what I can say is the residents of Boipatong were being attacked, we did not discriminate, it was not discriminated against as to who was being attacked, how old they were, all in all the residents of Boipatong were being attacked.
MR BERGER: And I take it that you would give the same answer for five year old Agnes Malindi who was killed, five year old Poppie Mbatha who was killed, eight year old Sibusiso Mzibe who was killed, seven year old Mthombe Vikile Nonjoli who was killed, same answer for all of them, "a snake gives birth to another snake", and that's why they were killed?
MR BERGER: There was no nine month old baby that was killed in the township by members of the Self Defence Unit or any ANC member, the only nine month old baby that was killed was Erin Matope, who was killed by you and your fellow attackers.
MR BERGER: So, if I understand your evidence correctly, Mr Mthembu, it didn't matter how young the babies were, they were to be killed because it was possible that their parents might have been ANC members, is that correct?
MR MTHEMBU: Mr Berger, ANC people were attacked and they had children, young children who were innocent, therefore if a baby was killed, that could have happened because of the situation in the township and the community at large.
MR BERGER: Well then let me ask you this, Mr Mthembu, if it was your desire to kill all the snakes in Boipatong, no matter even if the snakes were nine months old, why do you say that you hid two little children under the bed in the house that you went into?
MR BERGER: You told the Committee, when I asked you why was a nine month old baby killed, you said, "A snake gives birth to another snake". If that is so, why did you not kill the two little snakes that you found, or that you say you put under the bed?
CHAIRPERSON: What is it that you want to establish from this witness? The record speaks for itself. People were killed there, regardless of their age, whether they were young or old, it didn't matter, they were there to kill anyone. His evidence is also that he personally decided to tell those two young children to get under the bed because he didn't want to kill them, because as he has told us, he has children too. That's what appears in the record. It seems to me you can't argue with the witness, it's an argument that's being addressed to us. The record speaks for itself, the point has been made.
MR BRINK: Mr Chairman, also from a point of view of clarity, can we get on the record whether or not it's Mr Berger's instruction that the applicant was responsible for the death of the nine month old child and the, I think it was a three year old, whether he was responsible himself, personally responsible? I'd like that on record.
MR BRINK: Thank you, that was all I wanted, because if it was suggested that he was responsible for those two murders of those two children, then of course no doubt he has evidence to that effect, but if he's not suggesting it, then it makes things clearer.
CHAIRPERSON: But that's a matter for argument. All that Mr Brink is raising is raising at the factual level whether is it intended to be alleged that Mr Mthembu killed those two young children you mentioned, and your answer is no, he didn't, you don't have those instructions.
MR BRINK: Mr Chairman, it wasn't by way of an objection, it was to get clarity, that was all, because the way the cross-examination was going seemed to suggest that this applicant was responsible for those deaths and the snake killing the snake and that sort of thing, but now it's been made clear, that's the end of the matter.
CHAIRPERSON: As I understand the line of questioning, it seems to suggest that even though he did not personally kill any one of the other persons, he is nevertheless legally responsible for their death. Is that the point you want to make?
MR BERGER: Chairperson, perhaps I should get direction from the Committee. Am I not supposed to examine this particular witness on the deaths of old people, young people and babies, because I can't say that this witness actually killed all of them?
CHAIRPERSON: No, no-one is suggesting that. All that we are saying to you, all that Mr Brink was saying to you is to indicate whether it is alleged, it would be alleged by the victims that he personally killed those persons. If that is not the allegation, you are free to cross-examine the witness in regard to his legal responsibility to do that.
MR BERGER: Chairperson, if any of the residents of Boipatong were able to identify a particular person as killing a particular loved one, then I'm sure they would have given evidence at the trial to that effect. The conviction was on the basis of common purpose precisely because people cannot say who killed who, and that was apparent at the trial stage. Well I've asked you about the children... (intervention).
MR MTHEMBU: Sir, as I have explained that we went to attack the ANC's at Boipatong. I know that children were injured, we were not necessarily looking at the age and it is therefore for this reason that we were not looking at a person's age.
CHAIRPERSON: Mr Mthembu, that we understand perfectly well, but what Mr Berger wants you to reconcile is your conduct in telling those young children to get under the bed because you didn't want to harm them, because you're a parent. How do you reconcile that with the attitude of the attackers that everyone in the Boipatong township had to be killed regardless of the age? Do you understand the question? Would you want me to put the question in Zulu to you?
CHAIRPERSON: (Puts question in Zulu). When you arrived at the house where these two children were killed, you have told the Committee that as a parent, you did not want to injure the children and you instructed them to hide under the bed, and now you are telling the Committee, when Boipatong was being attacked, you were not discriminating child, father, young and old, everybody were going to be killed. I am saying to you, would you please explain this?
MR MTHEMBU: Sir, the two children were instructed to hide under the bed because I was sympathetic, I realised that they were still young, they knew nothing. People who had to answer had already fled, but these two young children knew nothing.
MR BERGER: I can give you the names of all the young people, but I'm sure it won't make any difference. Let me ask you this, old people were also killed, I can give you examples: at 1183 Mosheshwe Street a 63 year old woman, Nellie Kugu, was stabbed repeatedly in the upper thighs and shot three times; at 45 Majola Street, 62 year old Belina Lerobane died, after receiving multiple stab wounds and being shot four times in the neck. There are other examples of old people who were shot and stabbed. Is your answer the same, it did not matter how old or how young, if you were a resident of Boipatong, you were a target to be killed?
MR BERGER: And it's not that people were just shot once or stabbed once, there are numerous examples of people who were repeatedly shot and repeatedly hacked and stabbed. One woman in fact was so badly stabbed, a middle-aged woman, so badly stabbed that you couldn't even count the number of stab wounds on her body. Do you have any explanation for why people were butchered in this way?
MR MTHEMBU: Mr Berger, I understand and believe that - Mr Berger, we went to attack people, it was a fight in a war situation, and yourself, as Mr Berger, if you were fighting someone, really, I don't know how you would go about doing that, we were actually fighting these people, and I won't know how many times a person was stabbed, etcetera.
MR BERGER: Many people were killed while they were sleeping. I can tell you a woman, Elizabeth Malindi, she was stabbed 15 times in her bed while sleeping, and there are plenty of other examples of people who were sleeping when they were killed. Again, if I understand you correctly, they were fair targets as well?
MR MTHEMBU: Mr Berger, I wouldn't explain really how that happened, but myself as Zulu, as far as I know, I discovered that, I think you too know history, there was a time when Shaka attacked people and he would confiscate the cattle, their cattle, as a sign of his victory.
"We could recognise each other even at night, because we had white bandages around our heads in order to distinguish our partners. We continued to kill the residents of Boipatong until we came to the end of the township. Others stole the property inside the houses, like two plate stoves, TV's and blankets, because it was winter time and it was very cold inside Kwamadala Hostel. Maybe we took an hour or half an hour, I cannot remember."
MR MTHEMBU: As I was explaining here, I was explaining in terms of the tradition, that Shaka would conquer his enemies and confiscate the livestock. We did not necessarily take these things as an indication of victory over these people.
MR BERGER: I'll give you an example, at 805 Bafokeng Street, there was a family who lived there, Victor Mkwana and his family. When the attackers came, they ran into a back room and they barricaded the door and the windows with all the furniture that was in the room, and fortunately they survived, and after the attackers had left, they came out of the room, they found the sitting room had been smashed completely, the front door had been broken down, the chairs had been slashed with pangas, wall unit broken, from the wall unit the attackers had taken a portable television set, a large colour television set, a video cassette recorder, dinner service and so on, ornaments, and food from a locked cupboard which had been forced open. There were bullet holes inside the house, a grandfather clock was stolen, the Disa telephone was stolen, more food in the sideboard was stolen, the dining room door was smashed, all the food in the fridge was stolen, in the main bedroom, blankets, duvets, pillows, linen, shirts, shoes, an overcoat and numerous other items of clothing were stolen.
CHAIRPERSON: Mr Berger, perhaps you should give us a list of all the items that were stolen. Seek an agreement from your colleagues to find out whether they are taking issue with whether or not food and all the other items that you are enumerating were stolen.
MR BERGER: What we'll do, Chairperson, is we will put together a list of not only things that were stolen, but people who were killed and how they were killed and all of that, we will put it to our learned friends, ask for their agreement and then hand in a memorandum to the Committee.
MR BERGER: You do know, Mr Mthembu, do you not, that a vast amount of loot, by that I mean blankets, television sets and so on, all the kinds of things that I have described, were stolen from Boipatong by the attackers that night, you know that, am I right?
CHAIRPERSON: I think what, as I understand the question, what is being put to you is this, do you accept that in the course of the attack at Boipatong certain items were stolen by the attackers, such as food, television sets and a whole variety of other goods, a list of which will be handed to us in due course?
MR MTHEMBU: As I am explaining that I am giving you an example about what I learnt in the history of Amazulu. Yourself as a white person would not understand this thing. For example, women would also be abducted to become Shaka's subjects after the conquest, he would confiscate the livestock so that he could feed his people.
CHAIRPERSON: Well perhaps you should try and find it now, so that we can, because we, you know, we've been going on with this witness for a long time, I think at some point we, you know, we have to come to the end of the cross-examination, so we'll give you time to look - to find the passage and go on with your cross-examination.
"By that time, I heard the sound of ambulances. I knew they were then taking all the people who were injured to hospital. I was so tired, because it was the first time that I had done such things. I went to sleep because I was doing day shift."
MR MTHEMBU: Mr Berger, what I know was discussed there was that it was no longer possible for hostel residents to go to the shops in the township. There were many police blockading the streets and people could no longer go to work. That was what was discussed.
"We came from an easterly direction to Boipatong, and we started breaking windows and doors. All property inside the homes had to be broken. If we came across a human being, we had to kill him or her with pangas and spears. We killed even young children, because these impis were now angry and this anger was caused by the intelezi(?) that was sprinkled on us. We did not know how many people we killed or injured during that night of the attack."
MR BERGER: If one goes to Boipatong and one looks at Slovo Park and Boipatong, the distinction is very, is not very clear, there's one street on one side of the road is Boipatong, on the other side of the road is Slovo Park, and Slovo Park is a very small area. So what I'm saying to you is that you were part of the attackers that started on the eastern side of the township and you made your way through the township, isn't that right?
MR MTHEMBU: I will not be able to say that they came from different directions, but from what you have explained, this is the route taken by the attackers, but I cannot comment where they came from, or the route that they used.
MR BERGER: You see because if you look at the map in front of you, some of the attackers started or came from the east, that is in the area around Slovo Park, and those attackers, after they had finished with Slovo Park... (intervention).
MR BERGER: It's not indicated on the map, Chairperson. I'm putting to the witness the areas from which the attackers came and I'm asking him to look at the map so that he can orientate himself. If it will assist the Committee, we can put arrows onto the map, just to indicate the directions in which we say the attackers came. Some of the attackers moved down into Slovo Park, others moved across the northern side of Boipatong, and eventually exited out Bafokeng Street, do you see there at the top there, the second street is Bafokeng?
MR BERGER: And then a third group of attackers came from the southern side of the township, entering the township via Lekwa Street, it's at the bottom in the middle there, and moving along different streets towards the east and towards the north, and then also making their way out along Bafokeng Street?
MS PRETORIUS: Mr Chairperson, I don't think there has been any evidence before this Committee that there were three groups in the township that night. If my learned friend put it to him and asked him whether there were three groups, then I agree, but you put it to him as a fact. I don't think that is correct.
MR BERGER: What I can say, Chairperson, is that if one analyses the houses which were attacked that night, and that analysis has been done, certain routes, also on the basis of eye witness accounts of people, certain routes were plotted, and there... (intervention).
MR BERGER: Mr Mthembu, it appears that the attackers struck, I'll put it this way, the attackers struck from three main areas, three different main areas, one being in Slovo Park, one being along the northern side of Boipatong and the other being from the southern side, moving east and north. Can you help the Committee as to whether or not there were in fact three groups of attackers?
MR MTHEMBU: Mr Berger, you are telling me that there were indeed three groups. What I can say is, according to your map, or rather as reflected in your map, I think people have told you how the attackers conducted the attack, you were not there. Hearsay and what you see for yourself are two different things.
CHAIRPERSON: It's being put to you, either as a fact or as a suggestion, is that there appears to have been three groups or attacks from three directions. What do you say to that, do you have any personal knowledge of that?
MR BERGER: I want to read to you what your lawyers said on your behalf at the criminal trial. Chairperson, I'm reading from page 78 of a document, the heads of argument which were submitted on behalf of the accused at the trial. It is said there on your behalf
"Ten eerste is dit duidelik op die totaliteit van die getuienis dat die aanval gepaard moes gegaan het met uiterste fyn beplanning en met militêre presisie uitgevoer is."
MR BERGER: There was evidence led, and I'm sure that that evidence about who was killed and where they were killed and so on is not disputed, and your lawyers said on your behalf that it was clear from that evidence that the attack must have been preceded by very careful planning, if my translation is accurate, and that it was carried out with military precision. Now, I want to ask you, or I want to put it to you that your evidence cannot be true that you were simply called to the stadium and told, "We're now going to attack Boipatong" and there was no planning, all that happened was, you all got your weapons and off you went to kill as many people as possible, that is not the way it happened?
CHAIRPERSON: At your trial, your lawyers submitted that, on the evidence in court that had been led before the Court, it was clear that the attack on Boipatong had been planned, well planned, and was executed with what was described as military precision. Do you understand what your lawyers said on your behalf at the criminal trial?
CHAIRPERSON: Given the submission made on your behalf by your legal representative at court, which was based on the evidence in court, your evidence before this Committee that you were simply called onto the stadium without any prior knowledge and told to go and attack Boipatong is simply not true, is that what you... (intervention).
MR BERGER: You cannot explain how it is that the attack appeared to have been carried out with military precision, you just say, "We went along with no planning and killed people at random", am I right?
MR BRINK: ...requested by one of the interpreters to draw the Committee's attention to the fact that when Mr Lax asks questions, having to share a microphone with you, Mr Chairman, his questions aren't easily audible, and if possible, when Mr Lax does want to ask a question, if he could take your microphone and put it in front of him?
MS PRETORIUS: Mr Chairperson, I just would like to report, I did speak to the State advocate, unfortunately they do not have the map at hand, he'll try and get hold of it, but he doesn't think he'll be successful, but he will let me know as soon as he can get it.
CHAIRPERSON: Let me emphasise that, Mr Mthembu, that when the question is put to you, if you can answer the question with a yes or no, please do so, but more importantly, if you do not understand the questions, you've got to say so, so that the question can be repeated to you. Do you understand that?
MR MTHEMBU: As I have explained before, I did not have the opportunity to go to school, but I think that had I had the chance to go to school, I would have tried to come up with a solution so that the conflict between the two organisations is addressed, bring the leadership of the two organisations so we can resolve the matter.
CHAIRPERSON: Let me explain the question to you, in your application for amnesty, you've stated that the attack on Boipatong was politically motivated, do you understand that, in other words it was associated with politics, do you understand that?
CHAIRPERSON: What Mr Berger wants to know is, he's directing this question to you specifically, what political objective did you hope to achieve by killing all the residents of Boipatong? Do you understand the question now?
MR BERGER: Mr Mthembu, you've told the Committee that there were no meetings prior to the one on the 17th of June at which the attack was discussed. Isn't it correct that a week or two before the attack, the possibility of an attack on Boipatong was discussed at the Kwamadala Hostel?
MR BERGER: ...the witness doesn't seem to have difficulty with that description. A minister from Durban, either a religious minister or a minister in the Kwazulu government, do you know of any such minister who would have sent Mr Dlamini to the Kwamadala Hostel?
CHAIRPERSON: You've told us that you know Mr Dlamini as the IFP representative in Vereeniging, but what's being put to you is that, all of this flows from the question of a meeting that was held on a Sunday a week just before the attack on Boipatong. What is being put to you is that Dlamini was there, having been sent to Kwamadala Hostel by a minister of the IFP?
"On the Sunday before the Boipatong massacre, Themba Khosa and Dlamini came to address a meeting of the people in the stadium. Other residents of the Kwamadala Hostel were present. Only the men of the Kwamadala Hostel were present. Dlamini was accompanied by a member of the Kwazulu police, Gabelo, who was his bodyguard."
" Who is Dlamini, who you allege was present during this meeting, and what is his position in the IFP?"
"He is an honourable man who was sent by a minister of the IFP from Durban to look after the members of the IFP in the Vaal Triangle as a whole."
" You state that you were present at the general meeting held in the hostel approximately a week before the attack?"
" Did Mr Mbeki Sene Mkhize personally address and warn hostel dwellers during this meeting to be prepared because of the pending attack?"
Now it seems as though there were two meetings, there was one meeting on the Sunday, which was addressed by Mr Themba Khosa, and there was one meeting held in the hostel approximately a week before the attack, where Mr Themba Khosa was not present, and which was addressed by Mr Mbeki Sene Mkhize, who warned hostel dwellers to be prepared because of a pending attack.
MR MTHEMBU: Mr Berger, now I have just indicated to you this happened a long time ago, the meeting that was held, I want to say the meeting was held at that time because there was going to be an attack. There used to be meetings and Themba Khosa used to come to address people if something was going to take place wherever, he would come to inform us about those meetings pertaining to the organisation. He did not necessarily come to the meeting that day because there was to be an attack on Boipatong.
MR BERGER: Mr Mthembu, is it your evidence that there were two meetings, one that was addressed by Mr Mkhize approximately a week before the attack, and one that was addressed by Mr Themba Khoza on the Sunday preceding the attack?
MR MTHEMBU: Maybe you were told about these, sir, but I will tell you that the meeting that was attended by Mkhize was the one held on the 17th of June 1992, not that the meeting held on Sunday was with an intention of explaining to us what we should do, as you have just explained it.
CHAIRPERSON: Well, as far as you can recall, there was a meeting on a Sunday preceding the attack on Boipatong, which was addressed by Themba Khosa, and there was no other meeting after that, other than the one on the evening of the 17th of June 1992?
MR MTHEMBU: Yes sir, that was my assumption because I too did not know Mr Dlamini and when he arrived he was introduced to us in one of the meetings where it was indicated that he is coming from Durban. I would say... (intervention).
MR BERGER: I suggest to you, Mr Mthembu, that you are being selective again in your memory. You have been through the documents, your affidavits, recently with your advocate and there are certain things here, I'll take you, for example, to paragraph 12, page 8, where you deal with the role of Mr Dlamini. You say there that he said
"There was a meeting because our people were dying. They were being killed by the ANC people and Umkhonto we Sizwe. Dlamini said this problem must be reported to Buthelezi."
MR BERGER: It's less than two years since you wrote these words, Mr Mthembu. How is it that you have forgotten anything about this meeting? Is it perhaps because it was at this meeting that the attack on Boipatong was discussed by Mr Themba Khosa and Mr Dlamini?
MR MTHEMBU: Mr Berger, if there was something that I knew, I would tell you, I would not hold it back, and I've just indicated to you that I cannot remember certain things, how then do you expect me to change, I just cannot bring my memory back.
MR MTHEMBU: How many Buthelezis do you know, Mr Berger, because here they were talking about the IFP minister, Mr Mangesoto Buthelezi, really I don't know which Buthelezi you want me to talk about now?
MR BERGER: Well, amongst two of your applicants there are two people named Buthelezi, that's why I asked the question, but you've clarified it now that the Buthelezi referred to in paragraph 12 is Minister Mangesoto Buthelezi.
MR BERGER: So would it be correct then to say, Mr Mthembu, that the problems of the hostel residents in Kwamadala were known through the ranks of the IFP all the way up to Minister Mangesoto Buthelezi?
MR MTHEMBU: Mr Berger, I wouldn't know that, I wouldn't know whether they knew or not, but what I know is that Mr Dlamini was the IFP representative in the Vaal Triangle, I think he is the person who is most suitable to answer that question as to how many people knew and how many people did not know.
"He was also angry at the killing of his people and said if the people came and attack you, you are supposed to fight back and kill them."
MR BERGER: I take it that you also won't be able to say what Mr Themba Khosa meant when he said you are supposed to fight back and kill them? All right, you can't answer that one. Let me ask you this, surely if there was going to be an attack on Boipatong, you, as an IFP leader, when you heard it on that Wednesday night, would have realised this could have terrible consequences, or it could have great consequences, this attack on Boipatong, did you realise that?
MR BERGER: Did it not occur to you, as a leader of the IFP, on that Wednesday night, to discuss with your other leaders whether or not this has the blessing of the senior structures of the IFP, for example the provincial structures or the national structures of the IFP?
MR MTHEMBU: Mr Berger, if a meeting is called here at the time during which the meeting was called, I think you too would not have had an opportunity to go and discuss with your colleagues with the discussions about that.
"After a few minutes, Mr Quanqua told all of us at the meeting to go and fetch our traditional weapons. We did as he told us because there was no-one amongst us who could disagree with him. All of us were afraid of him."
"We did as he told us because there was no-one amongst us who could disagree with him, all of us were afraid of him."
"We did as he told us because there was no-one amongst us who could disagree with him. All of us were afraid of him"?
I should have listened to him, because he was my elder. I regarded him as a respected person because he was my elder. When he said something, I should have listened to him because he was my elder. I think that when Mr Berger's father talks to him, he listens, because he is older than he is.
MR BERGER: The very road that you took to Boipatong. You said you came out of the front of the hostel, you walked along that road, under a bridge, to Boipatong. That road is used 24 hours a day and it is lit at night.
MR BERGER: There are security personnel who patrol the area on a 24 hour basis, and the Vaal Commando also patrols the area, that's the army, and they, the words used here are "begelei skofte", they transport or accompany, accompany shifts who are coming off from work to and from the hostel, in other words there's constant activity, the Vaal Commando is there, the security personnel from Iscor are there, you can't dispute any of that, am I right?
"...gevolg sou gewees het deur die aanvallers. Veel eerder sou 'n klandestiene roete wat deur die agterkant van die hostel kon gelei het gevolg gewees het of daar sou by 'n voorafgereelde plek byeengekom gewees het."
"Verder sou veel eerder gebruik gemaak gewees het van voertuie wat aanvallers aan die agterkant van Slovo Park kon aflaai."
CHAIRPERSON: What he is putting to you and what you must answer is that he's saying you are not telling the truth when you say that police motor vehicles were not used to transport the attackers. What do you say to that?
MR BERGER: And you are not telling the truth when you say that the police, the defence force, and I'm going to add as well, as though you haven't said it, Iscor, were not aware of the fact that the attackers were moving from the hostel towards Boipatong?
MR BERGER: Well, let's take Iscor. On your number 330 heavily armed men with pangas and axes and AK-47's, come out of the main gate of Kwamadala Hostel and move in the direction of Boipatong, and they go directly past a 24 hour security, Iscor security, are you saying that you could not have been seen, or perhaps the security might have missed you?
MR BERGER: You see, Mr Mthembu, it was argued on your behalf at the trial that the attackers could not have come out of the main gate, because if they had done so, they would have been seen by the security personnel, by the Vaal Commando, by any number of security forces, that's what was argued on your behalf.
MR MTHEMBU: When we exited through the main gate, or when we exit through the gate, we did not pass the security guards from Iscor. I can see that the honourable sir doesn't know what he is talking about.
MR STRYDOM: Can I just intervene here, I just want to set something correctly? I think if we get the photographs, the position will be made clear. If one leaves through the main gate, you get to the tar road, and about 300 metres back on that tar road, away from Kwamadala, you get the security gates, so you don't really pass the security gates. What was argued as a probability during the course of the trial was that there was activity on a 24 hour basis and it's highly improbable that if a group of 300 people moved along that tar road, that they would not have been seen, that was the argument during the trial.
MR STRYDOM: Yes, it's only on a probability basis, because our instructions were that Mr Mthembu, for instance, was not part of the attack, so we just argued on probabilities at that stage, and I can also mention these probabilities were rejected by the trial judge because the accused at that trial were convicted.
MR BERGER: Well one can't, with respect, have one's cake and eat it. What was submitted, and on the basis of evidence, was that it was "uiters onwaarskynlik", that it was not just improbable, that it was highly, highly improbable, that a group of 300 attackers would not be picked up.
CHAIRPERSON: But the difficulty that we have here is that we don't have the benefit of that argument, I mean of the evidence that was before the trial court, on the basis of which those submissions were made, so we are not in a position to comment on the probability or otherwise of whatever submission was made, you know, at the trial, but I understand the point that you're making.
MR BERGER: Whether or not you would have been picked up or discovered, there was always the risk, I put it to you, of discovery by either Iscor, the Vaal Commando, the police, someone else, and what I want to ask you is, how could you, as one of the attackers, have followed such a blatant route, such an open route, without fearing that you would be discovered by one or other of the security forces? Do you understand my question?
MR MTHEMBU: At that time, whether we were going to be caught or not did not matter. After we had decided that we were going some place, we would go. If the police discovered us, that would be their duty to do so.
MR BERGER: Do you know, if you're looking at Boipatong standing on that little bridge, one has to go, you have to go another 900 metres south, and then a further 900 metres west, I beg your pardon, east, to get to Lekwa Street, in other words it's almost two kilometres from that footbridge to get to Lekwa Street to enter into the township. What I'm putting to you is that to get people at the footbridge entering into Umzumvubu, to get people at Lekwa Street entering into the township, to get people right up at the top near Slovo Park into the township, and to co-ordinate all of that so that the attack starts at the same time, you need planning and you need vehicles, that's what I'm putting to you?
CHAIRPERSON: Well in short what is being put to you is that to get to the point of the attack, you had, two things had to have occurred: one, there had to be prior planning; and secondly, you had to be transported to that point. Is that in a sense what you... (intervention).
MR BERGER: At page 82 of the heads of argument, it was submitted by your lawyers on your behalf that there were army vehicles at the robot at the crossing of Frikkie Meyer Boulevard and Nobel Boulevard, that's the northern entrance to Boipatong. It is then submitted on your behalf that if any, and the word "enige" is underlined, if any of the attackers had made use of that road, that tarred road, to go in the direction of Kwamadala, then they must have been seen at least by members of the army. It's your evidence that when you were going back to Kwamadala, you were seen by the army and the police, and none of them attempted to stop you, is that correct?
MR BERGER: Let me also tell you that there was evidence at the criminal trial that people had gathered in the veld behind the hostel and that that grass had been pushed flat. Do you know anything about that?
MR MTHEMBU: What was discussed in the trial and what we are talking about now are two very different things. The lawyers who represented us may not be here and I don't know if you expect me to go summon them and explain what they were saying.
CHAIRPERSON: And that on your way back, it was there, well probably, when you were in Boipatong and on your way back it was only then that you saw the police, the Casspirs I think you said, here near the robots?
MR MTHEMBU: I will not explain whether they were there or not, because maybe I would have seen them if they were there, I would not know whether they were there or not, I cannot make a fair comment on that.
MR MTHEMBU: As I've explained earlier, it is possible that they may have been there when we went into Boipatong, or they may not have been there, but I did not see them, because I was concentrating on where we were going.
MR BERGER: You remember this meeting, but you don't remember the meeting less than a week before, in fact five days before, where Mr Themba Khosa said if people come to attack you, then you must kill them?
MR BERGER: Is it also correct that Mr Themba Khosa said that we must hide all those weapons and spears, together with the clothes which had blood on them, in order to stop the police from gathering their evidence?
MS PRETORIUS: Mr Chairperson, I do not think that this applicant can tell the Committee what Mr Themba Khosa meant by those words. He can tell the Committee what he understood by them, but I can't see that he can tell the Committee what Mr Themba Khosa meant.
MR BERGER: I'll ask it that way then. When Mr Themba Khosa said you must co-operate with the police after you've destroyed all the evidence, you understood Mr Khosa to mean that you must tell the police lies?
MR MTHEMBU: Mr Berger, with reference to what you're saying, I think that when Mr Khosa said what he said at the meeting, he did not direct us as to what we should do step by step, he did not direct us as to what we should do first or do second and then do whatever last. The police were there, they surrounded the area, we could not go out to the shops to buy food, how could we then let police in, into Kwamadala Hostel? Themba Khosa told us that we should remain calm and co-operate with the police and listen to what they had to say and let them search if they wanted to search the place.
MR BERGER: Well, Mr Khosa gives an instruction on the Friday, the hostel was searched by the police shortly after that, is it correct that between the giving of the order and the search of the hostel, that all the stolen goods, as well as the bloodied clothes, were burnt?
MR MTHEMBU: Mr Berger, I think that on a Thursday after the attack on Boipatong, police arrived in large numbers, they searched the place and confiscated even traditional weapons for testing, ballistic tests, to see if they were not connected to the attack in Boipatong. What I am trying to explain is that the police would come to the hostel even before Themba Khosa arrived there.
MR BERGER: Mr Mthembu, it's not a requirement for amnesty, but you were led on this right at the beginning of your evidence, you said, well through your counsel you said that you were sorry. Now, at page 41, paragraph 15, you say
"To conclude my statement, I would like to say to the community of Boipatong and to the residents who lost their loved ones, I am very sorry and I am asking them to forgive me because today I am behind bars and I realise what a dreadful thing we did that night."
MR MTHEMBU: Sir, I explained this earlier on, that I am sorry, not just because I am behind bars, but even if I was free, had I had such an opportunity I would have come before this Committee and said the same thing.
MR MTHEMBU: As a convicted person, I cannot just go to the TRC or Mr Tutu, Bishop Tutu, and say that I am seeking amnesty for the people that I killed. I have to follow certain procedures, like acquiring legal representation and so forth, to be able to apply for amnesty.
MR BERGER: All of your co-accused who were convicted are the ones applying for amnesty. Those who were not convicted, or who were never caught, are not saying that they're sorry, they haven't come forward, and isn't that where you would be... (intervention).
MR BRINK: Sorry, Mr Chairman, again to interrupt, is this getting us anywhere, because we know that remorse is not a requirement in terms of the Act, so it doesn't really take it further, with respect.
MR BERGER: I prefaced it by saying that it's not a requirement, but if I can then, on a point of relevance, say, Mr Mthembu, if you are truly sorry for what you've done, would you be prepared to sit down with your co-accused and compile a list of the names and present whereabouts, if known, or if the names only, then that will also do, of the 300 people who participated in the attack on Boipatong?
MR BERGER: I'm inviting you, during the lunch breaks, and on your own and then to come together to compile a list of all the people, the 300 and more people who were involved in that attack on Boipatong, and the reason I'm inviting you to do this is because I've been instructed to tell you, on behalf of the victims, that they will not begin to consider forgiving you until you tell the whole truth, and the whole truth includes the names of all the people involved in the attack.
MR MTHEMBU: I understand that you are inviting me, but what I and my co-accused think may be different, and we are not in one area, we do not see each other often, even during the lunch breaks we must do other things, like eating.
MR BERGER: During the lunch breaks, and this has been my last comment to you, Mr Mthembu, during the lunch breaks, you and your co-applicants can get together, if you are truly sorry, and put together a list of all of the people who were involved. After all, it's a requirement for amnesty that you do so.
MR MTHEMBU: I understand what you're saying. In other words, you are telling me that I and my co-accused are not here to seek forgiveness, you only realise that we are here to seek forgiveness only when you invite us to do what you have suggested. Is that what you are trying to tell me, Mr Berger?
CROSS-EXAMINATION BY MR MALINDI: Mr Mthembu, when you look at page 3 of the bundle, under paragraph 11, you give the names of Mr Thebi Mkhize and Mr Quanqua as the people who gave you instructions to conduct this attack. What authority did Mr Mkhize and Mr Quanqua have to give these instructions?
MR MTHEMBU: As I explained earlier on, sir, that Damara was a person residing at Kwamadala, whom we respected and listened to, and furthermore our people had been killed in the township, I think that is why they proposed this attack.
"The issues discussed at this meeting was that everybody was tired of what was being done by the Comrades to our people, that is they were necklacing our people and burning our people to ashes, that is the reason why they decided to attack the residents of Boipatong."
MR MALINDI: Could you please look at page 29 of that bundle, at paragraph 17.1. You mention Mr Vanana Zulu and Mr Mkhize as the people who made a decision to attack the community of the Vaal, that is Boipatong.
MR MALINDI: Mr Zulu, one of the people who gave you instructions, as you say under paragraph 11 of your amnesty application, are you including him as a third person, or not? If you look at page 3 of that bundle, paragraph 11 of the amnesty application, you mention Mr Mkhize and Mr Quanqua as giving instructions, my question is, in view of what is on paragraph 17.1 on page 29, are you adding Mr Vanana Zulu as the third person who gave you instructions?
MS PRETORIUS: Mr Chairman, I just have one problem with Mr Malindi, my learned colleague here, is he asking the questions on behalf of the same victims, or is he asking the questions on behalf of different victims, because if it's the same victims, it's my contention that the applicant cannot be cross-questioned by two people regarding the same victims. If it's different victims, I have no problem.
CHAIRPERSON: I think in putting the question to the witness, please bear in mind that this issue was canvassed earlier on, and then in paragraph 17 there's reference to the one that you've just put to the witness, and that is 17.1, where he says
"To the best of my knowledge Mr Vanana Zulu and Mkhize made the decision to attack the Vaal community."
CHAIRPERSON: But this sentence, because it seems to me it may well be capable of being, you know, of meaning that he may have known about the meeting or he may have known that the residents of Kwamadala Hostel were afraid of Quanqua and that they were forced to attend the meeting and that's why he went home.
CROSS-EXAMINATION BY MR DA SILVA: Mr Mthembu, you gave an explanation about how the attack took place on the 17th of June 1992. I understand from your evidence that at a stage you moved away from Kwamadala Hostel and you crossed underneath a bridge, that is your evidence, is that not so?
MR DA SILVA: I understood your evidence to be that when the group moved away from Kwamadala Hostel towards Boipatong, that you saw no members of the police and no members of the Defence Force, is that correct?
MR MTHEMBU: I am not in a position to do that, because you are talking to me, I am the one who saw them, I was walking past, going back to my place, I therefore did not estimate what time it took for us to observe these people as we were walking past, we just walked past.
MR DA SILVA: That's exactly why I'm asking you the question, because I wasn't there, and you were there, that's why I'm asking you to tell the Committee how long you kept these people under observation?
"You mentioned that you saw a police armoured vehicle outside Boipatong on the eve of the attack. Is it possible that this vehicle you saw could have belonged to the SADF?"
"On the night of the attack I saw a Casspir of the Stability Force Police, such as a V12. I am very sure it was a South African Police Casspir."
MR MTHEMBU: I would not know, because you have just enumerated a number of things. You also indicated to what other names used for the V12, I just know that these vehicles were for the police and the other one for the army.
CHAIRPERSON: You see, your attention is being drawn to the question that was asked of you, and the answer that you gave to that question. The question was, is it possible that this vehicle that you saw there belonged to the South African Defence Force, that is the question that you were asked. Do you understand that?
"On the night of the attack, I saw a Casspir of the Stability Force Police, such as a V12. I am sure it was a South African Police Casspir."
MR DA SILVA: Mr Mthembu, you made several affidavits in your application for amnesty, and the first affidavit I understand deals with the incidents that took place at Sebokeng. Now if you look at your subsequent affidavits, look at the first one, it runs from pages 36 to 42... (intervention).
MR DA SILVA: As it pleases you, Mr Chairman. My instructions are, Mr Mthembu, as contrary to what Mr Berger put to you, that the South African Defence Force did not provide 24 hours service at that stage, during June 1992. Do you have any comment in that regard?
MR MTHEMBU: There is nothing I can say, sir, because there was violence in the Vaal Triangle, we used to see police and army vehicles coming to the spa shop near Kwamadala Hostel, they would make a turn there.
MR DA SILVA: My instructions are further that immediately before the attack and during the attack, no members of the Defence Force were aware of this attack. You can't make any comment in that regard, can you?
MS PRETORIUS: Yes, but Mr Berger put it to you that if you stand on the little bridge, you can see 900, it's 900 metres, that little bridge that you can stand on and see Boipatong, is that a footbridge or is it a bridge for vehicles? I'm talking about the second bridge, not the bridge you came under from Kwamadala Hostel, the one that you said you had to cross to go to Boipatong and to get back from Boipatong.
MS PRETORIUS: Can I refer you to, I have copies for all the members of the Committee, as well as the members, of the Sunday Star dated the 28th of June 1992. It was an article written by a Mr Riaan Malan, I believe, and it reads, on the inside look out, there is a paragraph, I can tell the Committee it's just above the last paragraph with the big T, the capital T, which says
"...in February he went to meet his mother in Boipatong and he wound up in Intensive Care with a bullet in the spine. A month earlier one Bongani Mbatha made the mistake of wearing an IFP T-shirt on an outing. He was stoned to death. In May a boy named Tapelo went shopping in downtown Vereeniging, presumed to be safe territory, he was abducted and burnt alive."
CHAIRPERSON: In view of the lateness of the hour, the members of the Committee will put their questions to you tomorrow morning. We propose to commence tomorrow morning at nine o'clock. Do you have a problem with that, Mr Berger?