MS PATEL: Thank you Honourable Chairperson, the matter on the role for today is that of W B Mdletshe, application number 3543/96.
MR NADASEN: Honourable Chairperson, I appear for the applicant, my surname is Nadasen, initial S.
CHAIRPERSON: What does it stand for Mr Nadasen?
MR NADASEN: It stands for Sagie.
CHAIRPERSON: Can you spell that please?
CHAIRPERSON: Are you an Advocate or an Attorney?
MR NADASEN: I am an Attorney, consultant to the firm Siven Samuel & Associates.
CHAIRPERSON: Are you ready to proceed?
CHAIRPERSON: Is that the applicant?
MR NADASEN: Yes, that is the applicant.
CHAIRPERSON: Thank you, you may be seated. Yes, Mr Nadasen?
EXAMINATION BY MR NADASEN: Thank you Honourable Chairperson. Mr Mdletshe, are you currently serving a prison sentence of 12 years?
MR NADASEN: For what are you serving this prison sentence?
MR MDLETSHE: For the crime, the murder crime that I committed.
MR NADASEN: Is it correct that you committed this murder on the 29th of March 1992?
MR NADASEN: And is it correct that you are serving this sentence from the 31st of March 1993?
MR NADASEN: I want to go back to the period March 1992, and I want you to tell us at that time, in which place were you living?
MR MDLETSHE: I resided at Mona.
MR NADASEN: And with whom did you live?
MR NADASEN: How old were you at that time?
MR MDLETSHE: At that time I was about 19.
CHAIRPERSON: Can you remember when you were born?
MR NADASEN: Can you tell us when you were born?
MR MDLETSHE: I was born in 1973, 8 February 1973.
MR NADASEN: At that time, had you completed your schooling?
MR MDLETSHE: No, I had completed standard 3 at that time.
MR NADASEN: Were you working at that time?
MR MDLETSHE: No, I was still at school.
MR NADASEN: Were you a member of any political party, roundabout that time?
MR NADASEN: Which party was this?
MR NADASEN: And for how long had you been a member?
MR MDLETSHE: I can say right from the time when I was young, because my family were also IFP members, but I joined the IFP when I was 14.
MR NADASEN: So you were a member of the IFP?
MR NADASEN: As a member of the IFP, did you get involved in any of its activities?
MR MDLETSHE: Yes, I attended all meetings.
MR NADASEN: Where did you attend these meetings?
MR MDLETSHE: At Ulundi, in Johannesburg as well as Stanger, I attended all meetings that were held.
MR NADASEN: Besides attending meetings, did you do any other work for the IFP?
MR NADASEN: Did you help them to get people to come to meetings?
MR NADASEN: In the area where you lived, were there any other political parties there?
MR MDLETSHE: In my area I was only aware of the IFP at the time.
CHAIRPERSON: Just tell me Mr Mdletshe, where is Mona?
MR MDLETSHE: Mona is in the Ndwedwe area.
MR NADASEN: I want to come back to my question, as far as you were aware, where you were living, the only party there was the IFP, is that correct?
MR MDLETSHE: In my section, there was IFP, but the ANC was present in other sections.
MR NADASEN: Good. Now, what was the relationship between the members of the IFP and the members of the ANC? Did they get on?
MR MDLETSHE: Are you referring to my area or ...
CHAIRPERSON: Just from your experience, not in your area, any area, but your experience?
MR MDLETSHE: The relationship between the ANC and the IFP was not good, because the ANC used to attack us.
It used to attack IFP members.
MR NADASEN: Now you say the ANC used to attack us, can you give us more detail of that, did they attack people in your section?
MR MDLETSHE: In the Mona area, this did not happen. I started having problems when I went to Driefontein, where I had gone to visit friends.
MR NADASEN: We will come to the question of Driefontein, I just want to establish something about the area where you lived. Are you saying that in the area where you lived, there was no problems between the IFP and the ANC?
MR NADASEN: Now, did you personally have any problems with members of the ANC?
MR MDLETSHE: No, I did not have any ill feeling towards the ANC members.
MR NADASEN: Did you witness or did you hear anything about problems between ANC members and IFP members in terms of fighting?
MR MDLETSHE: The ANC used to terrorise us at that time. For instance, they would lock us from going to shop at Tongaat, they would lock us from riding on buses, but we did not take a decision at that time, to kill them or attack them.
MR NADASEN: Was anybody assaulted by anyone?
MR MDLETSHE: The IFP members were assaulted, but in such instances, they would go report these matters to the police.
MR NADASEN: Was anybody killed?
MR MDLETSHE: Killed by the ANC? They would be assaulted, they were being stopped from going to the shops.
MR NADASEN: So as far as you were aware, there were no killings between - ANC killing IFP, or IFP killing ANC?
MR MDLETSHE: No, I was not aware of such.
MR NADASEN: Okay, now I want to go to the 29th of March 1992, and let me confirm is that the day on which the murder took place?
MR MDLETSHE: Yes, I will say that is the date.
MR NADASEN: The morning of that day, can you remember where you were?
MR MDLETSHE: I left my home to visit my friends, Fani and Nkondana.
CHAIRPERSON: Just hold on, these names, I would like to take them down. Just give us the names again, what are their names?
CHAIRPERSON: Yes, and how do you spell the second name?
INTERPRETER: Nkondana and their surname is Ngwane.
INTERPRETER: Their surname is Ngwane.
CHAIRPERSON: That is Nkondana's surname?
CHAIRPERSON: Yes, just spell that surname?
ADV SIGODI: Sorry Chairperson, I think the name Nkondana is spelt with an "i" at the end, not an "a".
INTERPRETER: My mistake, I am sorry.
CHAIRPERSON: Yes, now where did you go to visit these friends?
CHAIRPERSON: Yes, do carry on.
MR NADASEN: How did you go to Driefontein?
MR MDLETSHE: I walked because it was not too far. It is a few kilometres.
MR NADASEN: How long did it take you to get there?
MR MDLETSHE: I left my home at about eight, and I arrived there at ten in the morning.
MR NADASEN: After you met both Fani and Nkondani, what did you do?
MR MDLETSHE: When I went there, my intention was to actually go see my girlfriend who lived in that area, and normally I would ask them to go call her from her home.
MR NADASEN: Why was it necessary to ask them to call her?
CHAIRPERSON: No, he said normally, but on that day, let's hear what happened on that day.
You went to visit your girlfriend, and so, what did you do?
MR MDLETSHE: They told me that my girlfriend may not be at home, she may be in a meeting that was being held in the area, and as an IFP member, I also went to that meeting and I saw her there.
ADV SIGODI: Did you say that the meeting was an IFP meeting?
MR MDLETSHE: Yes, it was an IFP meeting.
CHAIRPERSON: Who told you this, that your girlfriend was not at home, and was at a meeting?
MR MDLETSHE: It was Nkondani. He told me that there was a possibility that she was at the meeting, and I left immediately thereafter, and proceeded to the meeting and I did find her indeed.
MR NADASEN: Where was this meeting taking place?
MR MDLETSHE: It was held at a school, on the grounds.
MR NADASEN: Was that near Fani and Nkondani's home?
MR MDLETSHE: No, we proceeded from Fani's home and went along the road, towards the school.
MR NADASEN: When you came to the school, what happened?
MR MDLETSHE: After the meeting, I talked to my girlfriend and then Alfred requested the three of us to accompany him to his home, because he wanted to discuss something with us.
CHAIRPERSON: Tell us, when you say Alfred, the three of us, who are you talking about?
MR MDLETSHE: Myself, Fani and Nkondani. We were requested by Alfred to visit him at his home, because there was something that he wanted to tell us.
CHAIRPERSON: Just to get the picture clear, were Fani and Nkondani also at the meeting?
MR NADASEN: Let me just go back a little bit, when you came to the school, the meeting was still in progress, is that correct?
MR MDLETSHE: It was at the end of the meeting when I arrived.
MR NADASEN: What was taking place at the meeting when you arrived?
MR MDLETSHE: The people were already starting to leave.
MR NADASEN: Was anybody speaking by the time you arrived?
MR MDLETSHE: When I arrived, Alfred had been speaking, but at the time, people were singing closing prayers.
MR NADASEN: In your statement you speak about a Mr Mugadi, is Mugadi and Alfred the same person?
MR NADASEN: Honourable Chairperson, may I just point out something, Mr Mdletshe, Mr Alfred Mugadi, did he also appear with you in court on this charge of murder?
MR MDLETSHE: Yes, he did appear in court on the same charge.
MR NADASEN: Honourable Chairperson, at page 26 of the documents, reference is made to a Mr Alfred Sipho Ngema, whom I understand then is the same person whom the applicant identifies as Alfred Mugadi.
CHAIRPERSON: (Microphone not on) Yes?
MR NADASEN: After the meeting, you indicated that Mr Alfred asked you to go to his house, the three of you to go to this house, is that correct?
MR NADASEN: How did you get to his house, did you in fact go to his house?
MR MDLETSHE: We did go to his house.
MR NADASEN: How did you get there?
MR NADASEN: Did he offer to take you, give you a lift in his car?
MR MDLETSHE: No, he did not offer us a lift. He just asked us to come to his home. His home was near the school.
MR NADASEN: So, is it correct that the three of you, you, Fani and Nkondani, the three of you went to Mr Alfred's house?
MR MDLETSHE: Yes, the three of us went there.
MR NADASEN: When you got to Mr Alfred's house, what happened?
MR MDLETSHE: When I got there, I asked him for money to buy cigarettes. He normally gave us money, he would actually give money to anybody who asked for it.
He took me inside the house and he gave me a R10-00 note, and then I went to the shop to those cigarettes. When I returned and tried to give him the change, he said I should keep it.
I remained in the house. He then asked amongst the three of us, who was just brave.
MR NADASEN: Now Mr Mdletshe, he gave you money to buy cigarettes, and you said he gave you money in the past, is that correct?
MR MDLETSHE: Yes, he did give me money before, he used to give me money before.
MR NADASEN: In your statement you also said that, is it correct that you regarded him, Mr Alfred as your leader?
MR NADASEN: Why did you regard him as your leader?
MR MDLETSHE: Because at that time, he was in charge of the area Driefontein and he was being assisted by Mosa Khuzwayo.
MR NADASEN: Now, did he hold any office in the IFP?
MR MDLETSHE: From his behaviour and also for the reason that he used to recruit people for the IFP, I came to the conclusion that he must have a position in the IFP, although I never questioned him about it.
MR NADASEN: Did other members of the IFP, do you know whether other members of the IFP, regarded him as a leader?
MR NADASEN: Did he ever ask you in the past, before the 29th of March, did he ever ask you to do things for the IFP?
MR MDLETSHE: He last spoke to me on the 29th of March, about that issue. He never said anything to me thereafter.
CHAIRPERSON: The question was before, isn't that what you are trying to say?
CHAIRPERSON: All right, now we understand, it seems as if 29th of March was the first time.
MR NADASEN: Now Mr Mdletshe, after you bought the cigarettes, you went back to Mr Alfred's house, that is correct?
MR MDLETSHE: Yes, that is correct.
MR NADASEN: Tell us what happened when you came back to the house.
MR MDLETSHE: I found him sitting close to the door, and he had a home made firearm with him. He asked who amongst the three of us, was brave.
He asked this in a very jocular manner, and then Nkondani said he was the one who was brave. Then he took the gun and gave it to Nkondani and told him that he should go and shoot Kechla.
ADV DE JAGER: Could you kindly go slower.
MR NADASEN: Mr Mdletshe, your evidence has to be translated, and the Honourable members also have to record what you are saying. You must speak slowly and you must pause when you say, maybe speak a sentence and pause and look straight ahead of you. When you feel that everything has understood, then you speak again.
CHAIRPERSON: You said Mr Alfred asked who among us was a brave person, and Nkondani said that he was brave. What happened after that?
MR MDLETSHE: He then gave the firearm to Nkondani, then Nkondani took the firearm, went out, but he returned immediately thereafter. He didn't leave the premises, and returned the gun and said he had been joking when he said he was brave, because he was still young, he could not shoot anyone.
After his return, Alfred gave the gun to me and said I should have the gun because I am older than the two, and he said I should go. I asked him why he wanted Kechla to be shot.
CHAIRPERSON: Hold on, we are hearing the word Kechla for the first time.
MR NADASEN: Mr Mdletshe, let's go back to the time when you were given the gun. Who gave it to you?
MR MDLETSHE: Alfred gave the gun to me.
MR NADASEN: When he gave you the gun, what did he tell you or ask you?
MR MDLETSHE: He gave me the gun and told me to go shoot Kechla.
MR NADASEN: Who is, who was Mr Kechla?
MR MDLETSHE: Kechla Ntshingila, the victim.
CHAIRPERSON: Spell that surname again.
MR NADASEN: Did you know who Mr Kechla was?
MR NADASEN: Did you have any dealings with him in the past?
MR MDLETSHE: Please repeat the question.
MR NADASEN: Did you have any dealings with Mr Kechla in the past?
MR MDLETSHE: No, we did not. I knew him from a distance, but I knew him because he was from the area.
MR NADASEN: Did you know whether he belonged to any political party?
MR MDLETSHE: Yes, I knew that he was an ANC member, because he and others used to attack us.
MR NADASEN: Now, let's explore that a bit.
ADV SIGODI: Sorry, attack you in what way?
MR MDLETSHE: The attacks would not happen in the open, if say for instance, they met an IFP member, they could assault them just for the sake that they were IFP members. They would call us names like clover and so forth.
CHAIRPERSON: I understand that as far as you were concerned, you had had no dealings with him and at no stage had he attacked you, that is clear, isn't it?
MR MDLETSHE: Yes, that is correct, he had never attacked me personally, but their group used to attack us because on one instance, I also came under attack from his friends, and they also attacked people from that area, who later fled to Mona.
ADV DE JAGER: Could you tell us of the instance when you say you were attacked? What happened, where was that and who attacked you?
MR MDLETSHE: At Driefontein, that happened in January of 1992. They used to attack us and people actually fled the area, they were running away from Kechla because they used to assault people, calling them clover, that the clover are not needed in that area.
CHAIRPERSON: I understand quite clearly, please correct me, you said you once was attacked by Kechla's friends, it wasn't Kechla who was there when you were attacked, is that right?
MR MDLETSHE: He was also around. It is not only the friends, he was also around when they were actually assaulting me.
CHAIRPERSON: When you were attacked, Kechla was there, is that what you are saying?
CHAIRPERSON: Earlier on you said in your evidence that he had never attacked me?
MR MDLETSHE: Kechla at that particular time, had never attacked me. He attacked me on January when such an incident occurred.
CHAIRPERSON: Could you just clear that up? My notes indicate, my note says that he had never attacked me, in January 1992 Kechla's friends attacked him.
MR NADASEN: Mr Mdletshe, we need to clear something up. Originally you said that Mr Kechla never attacked you personally, do you remember saying that?
MR MDLETSHE: Yes, I did say that.
MR NADASEN: And now you say that in January 1992, Mr Kechla and his friends, attacked you. Can you explain, first you say he didn't attack you and now you say, explain that.
MR MDLETSHE: Yes, I will try and explain that. Kechla, when he was doing it, when that incident occurred, then he was with the friends, I was walking on the road, he himself, he did not hit me, it is the friends who actually hit me, but he was amongst those people. Not that he personally hit me.
I did not actually blame him, put the blame on him, because the friends did that while he was around, but he did not personally hit me.
MR NADASEN: So what you mean is that because he was with his friends, you understood that to be that he attacked you, because he was just in their company? Is that what you are saying?
MR MDLETSHE: Yes, I did take it like that, that he knows, he has the idea about it, because he is amongst the people who usually hit people. However, as time went on, I realised that I have never entered into a quarrel with him, I actually thought that by myself after the incident, when I was in hospital.
ADV DE JAGER: Were you hospitalised after the attack?
MR MDLETSHE: Yes, at Cindy Zweni.
MR NADASEN: I want to go to the point where you indicated in your evidence that Mr Alfred gave you the gun and told you to go and kill Mr Kechla.
MR MDLETSHE: I asked Alfred as to why should this person be killed and he said because that person is an ANC, then I did not question him further, I just carried the task as a person who was my leader, and I couldn't actually argue with him.
As my leader, I actually carried out the action because I knew that Kechla and them are troublesome, they used to attack people.
MR NADASEN: Mr Mdletshe, let's just go back a bit. Did you agree immediately to what Mr Alfred said or did you object, did you object at all?
MR MDLETSHE: No, I did not object, I just carried the task immediately because they used to attack us.
MR NADASEN: Did he, did Mr Alfred ever say anything, or what would happen to you if you did not carry out the task?
MR MDLETSHE: I said that for the statement in court, that I questioned Alfred.
MR NADASEN: Now, what statement are you referring to?
MR MDLETSHE: I am referring to the statement that you are talking about, what I am telling now is the truth, but in court, I told lies, because I wanted to be released.
MR NADASEN: What statement are you referring to, tell us what you said in court, that you now say is a lie?
MR MDLETSHE: In court I said I asked Alfred why is this person to be killed, and then I tried to refuse. I asked him is the ANC person to be shot and then I said Alfred said I should choose whether I should kill, whether I am killing Alfred or I was going to be killed. I had to choose.
Sorry, I had to choose whether I kill Kechla or I was to be killed. That is what I said in court.
ADV SIGODI: In other words, sorry, can I just clarify this, you were saying that in court you said that you acted under duress from Alfred?
ADV SIGODI: And you are telling us now that that was not true?
MR MDLETSHE: In court, I was telling lies, telling them that I asked Alfred questions.
ADV SIGODI: In other words, I just want to simplify it, you did not receive any threats from Alfred before killing Kechla? Is that the truth?
CHAIRPERSON: Tell us, when Alfred asked you to kill Kechla, do I understand that you did not ask him any questions at all as to why you should do it, is that what you are now saying?
MR MDLETSHE: Yes, that is the truth. I did not ask him questions, I carried forward the task.
CHAIRPERSON: Did you say anything at all to Alfred when he said you must go and kill Kechla, did you say anything at all to him?
MR MDLETSHE: I just asked him why are we going to kill him, I must kill him because he is an ANC, because I wanted to be assured, and indeed I went to kill Kechla. I came back with the gun and actually took the cartridge, I came back with the cartridge.
CHAIRPERSON: Just hold on. I think you are going a bit too fast in your story. After you asked him why must you kill Kechla, is it because he is ANC, what happened then?
MR MDLETSHE: I went to kill Kechla. Yes, I went with Nkondani and Fani, however, they didn't do anything. I am the one who did something there.
CHAIRPERSON: Where did you go to?
MR MDLETSHE: We went to kill him, it was just nearby, nearby Alfred's place, and then we came back with the cartridge and the bullets. He gave me four cartridges, I only used one bullet and then I came back and gave him everything.
I took one bullet and then I flushed the used one in the toilet and he told me that the three ...
CHAIRPERSON: Please, I think that he is going a little too far.
MR NADASEN: Mr Mdletshe, please go slow.
ADV DE JAGER: We don't want to hear at this stage what happened after you returned, and how many bullets you came back with.
You are on your way now with the four bullets and the gun, to the house of Mr Kechla. Tell us where did you find him, was he sitting on the stoep, was he in the house, what did you do, did you call him? Tell us exactly what happened there?
CHAIRPERSON: How many times did you shoot him, where did you shoot him?
MR NADASEN: May I come in here? Mr Mdletshe, perhaps you should answer my questions. We are now at the point where you have the gun and you say that you were taking orders, you were going to carry out orders.
Now tell us, you have the gun, what did you do?
MR MDLETSHE: I went with the gun on the road, nearby the stop, by the rank. We found him there with his friend.
MR NADASEN: Were you alone, were you alone, did you go alone?
MR MDLETSHE: No, it was myself, Nkondani and Fani.
MR NADASEN: Did you know where you would find Mr Kechla?
MR MDLETSHE: From where we were, we could actually see him where he was, because if you are at Alfred's house, you could actually see where he was standing. He wasn't that far away.
MR NADASEN: Where was he standing, where was he standing?
MR MDLETSHE: There was Alfred's house, this side and he was on the road.
MR NADASEN: How far away was he from Mr Alfred's house?
MR MDLETSHE: What I can say, I can say it is on the outside, I can actually estimate that Alfred's house is nearby that bench outside, nearby that office.
MR NADASEN: Now you saw him and you went ...
MR MDLETSHE: Yes, it is a road, it is the road and then Alfred's house, okay.
ADV DE JAGER: Sorry, he was standing opposite the road?
ADV DE JAGER: About 20, 30 paces?
MR MDLETSHE: I wouldn't know about paces, it was just nearby. I could see what a person was wearing, even the shoes, you can even identify the shoes that that person is wearing. You can even see that he was on the yard, because it was so close by.
MR NADASEN: How long did it take you to get from Mr Alfred's house to where Mr Kechla was?
MR MDLETSHE: I didn't have a watch and I cannot estimate, it did not take me that long.
CHAIRPERSON: (Microphone not on), an estimate of the distance please. Carry on in the meanwhile.
MR NADASEN: Thank you. When you came to where Mr Kechla was, what was he doing?
MR MDLETSHE: He was standing there with the others, Tembiso Mnyando. On our arrival ...
MR NADASEN: Just answer my questions. Were they facing you?
MR NADASEN: Did you say anything? Did you say anything?
MR MDLETSHE: You mean to Kechla?
MR MDLETSHE: No, I did not say anything.
MR NADASEN: Did Mr Kechla say anything?
MR MDLETSHE: He also didn't say anything. I just drew the gun, and pointed it at them. The others ran away and then I shot him, and he also ran away after I shot him.
MR NADASEN: Now, you say that Mr Kechla was standing with some other persons, how many other persons?
MR NADASEN: Then you withdrew the gun and you just shot him, is that correct?
MR NADASEN: At which part of his body did you shoot him?
MR MDLETSHE: Here in front, and he ran away immediately. He ran away.
CHAIRPERSON: Where did you shoot him, where on his body?
CHAIRPERSON: (Microphone not on)
MR NADASEN: He points to his chest Chairperson.
MR MDLETSHE: When I was, can I please explain that, when I was shooting Kechla, when I shot him, on the chest.
MR NADASEN: How many times did you shoot Mr Kechla?
MR NADASEN: Did he say anything after you had shot him?
MR MDLETSHE: No, he just ran away.
MR NADASEN: Did his friends say anything?
MR MDLETSHE: They ran away and I actually saw them in court.
MR NADASEN: Now, when you shot Mr Kechla, you said he ran away. Did he fall down first or did he just ran away?
MR MDLETSHE: He just ran away.
MR MDLETSHE: I picked up the cartridge that I used and then I went to Alfred. The three of us went to Alfred and then we gave Alfred the gun.
MR NADASEN: Now you went back to Alfred. Where was Alfred?
MR NADASEN: Did you tell him anything?
MR MDLETSHE: Yes, we told him that we have killed Kechla, but he did run away and then he congratulated us that we have done a good thing.
MR NADASEN: What exactly did Mr Alfred say?
MR MDLETSHE: He congratulated us that that was a good thing, and that was a good thing that we have done.
MR NADASEN: After he congratulated you, did you return the gun to him?
MR NADASEN: What did you do with the remaining bullets?
MR MDLETSHE: The three remaining ones, I gave it to him.
MR NADASEN: And what did you do with the cartridge?
MR MDLETSHE: I gave it to him, he took it to the toilet.
MR NADASEN: Did he take it to the toilet?
MR MDLETSHE: He, himself, Alfred took it to the toilet.
MR NADASEN: And after that, what happened when he came back, what did the four of you do?
MR MDLETSHE: He congratulated us and said that was a good thing that we were able to kill him, because our people had actually suffered because of him, because they were assaulting people and burning their houses. That was good that there is a list ...
MR NADASEN: So, he congratulated you, he said things about people being assaulted and then he spoke about a list. What list did he speak about?
MR MDLETSHE: The list that Alfred showed me of the people who were supposed to be killed. But he did not actually say who will kill them, he said there is a list of people who should be killed and actually said those names.
I actually took it in my hand and I actually had a look at that list.
MR NADASEN: The names that you saw on that list, were you able to identify who those persons were?
MR MDLETSHE: I can remember some of them, some I cannot.
MR NADASEN: Were they members who were involved with any political party?
MR MDLETSHE: Yes, they were ANC.
MR NADASEN: After he showed you the list, what did you all then do?
MR MDLETSHE: Thereafter he gave us the gun, he gave me in particular the gun and said I must protect myself because I have just done such a crime.
MR NADASEN: Did Mr Alfred give you anything to drink?
MR MDLETSHE: Yes, he did give us a drink and we had it, and then we left. He used to even at Tongaat, he used to buy everything for us, even liquor or even if we visit him ...
CHAIRPERSON: No, no, just let's talk about that day.
MR NADASEN: Let's just talk about that day. There is something that I need to clear up Mr Mdletshe. Is it correct that you killed Mr Kechla because Mr Alfred told you to do so, is that correct?
MR NADASEN: Now, when you made application for amnesty, do you remember filling out certain forms?
MR MDLETSHE: Yes, I do remember.
MR NADASEN: Honourable Chairperson, I am referring to page 15 of the bundle of documents.
Mr Mdletshe, one of the questions that you had to answer was this, was the act committed in execution of an order or on behalf of or with the approval of the organisation? Let me complete, that was the question, and this is how you answered the question, Honourable Chairperson, I am actually reading from a translation of the original.
CHAIRPERSON: Page 15 is the translation, yes.
MR NADASEN: This is how you answered it, you said no one sent us to do this, but we just decided upon doing it. Now, is that correct?
MR MDLETSHE: No, it is not the truth. I was saying that for the court. Everything that you are saying now, that we took it upon ourselves, I was saying that in court. I don't deny that, that was the court thing.
MR NADASEN: But Mr Mdletshe, you must make something clear to me now, you had already been sentenced to 12 years imprisonment, not so? Is that correct?
MR MDLETSHE: Yes, it is the truth.
MR NADASEN: And now you are applying for amnesty?
MR NADASEN: Can you explain to us, why didn't you say to that question, why didn't you answer that I was acting on the instructions of Mr Alfred?
MR MDLETSHE: I said that because I asked somebody and I explained to him, I asked somebody to do it for me. This person, I was in jail with him, I asked him. I did explain to him that it is Alfred who said we must do this because these people were attacking us, because we were attacking each other.
MR NADASEN: When you signed the affidavit, did you read through what your answers were?
MR MDLETSHE: It was read to me and the police officer did ask me who had ordered me or sent me to do this act, and I explained that it was Alfred.
ADV SIGODI: Sorry, the Zulu form, whose writing is this, who filled it in for you?
MR MDLETSHE: I would like to see it, but I do not remember having filled a form. I think I asked an inmate to do it for me.
No, that is not my handwriting. I had requested an inmate to fill in the form for me.
ADV SIGODI: You requested an inmate to fill it in for you?
MR MDLETSHE: Yes. I did so because my handwriting is not legible.
ADV SIGODI: But then, I mean, didn't you say to this inmate, (no translation), didn't you say that to the inmate?
MR MDLETSHE: No, this is not how I explained it. I said I was actually fighting for the rights of the IFP, because the IFP was under constant attack at the time.
CHAIRPERSON: Where are you reading from?
ADV SIGODI: From the Zulu, it is on page 7. The other application, is the interpretation, paragraph 11(a) on page 7.
ADV SIGODI: Where would the inmate have obtained this information from? Why would your inmate write this?
MR MDLETSHE: I would not have knowledge, because what I am explaining here, is what I know. I have explained that I was ordered by somebody else to do it.
CHAIRPERSON: No, let's just answer the question. You filled in a form or an inmate filled in a form for you, because your handwriting is not good?
CHAIRPERSON: You told him everything that he wrote down?
CHAIRPERSON: And after he wrote it down, it was read to you and you signed it? Just answer the question, is that correct?
CHAIRPERSON: You didn't sign it?
MR MDLETSHE: I do not remember signing.
CHAIRPERSON: Will you just show him his signature please.
MR MDLETSHE: I do not remember signing a Zulu form. I can request a pen and paper, so that I can sign my own signature, this is not mine.
MR MDLETSHE: As I am saying, I can write for you now.
CHAIRPERSON: No, I don't want to know all that, I want to know who signed your name on page 9?
MR MDLETSHE: I can say that because this is my name signed here, I can say then it was me, but I do not remember signing it.
CHAIRPERSON: There is a distinction between not remembering whether you are signing and denying that you signed it. You are saying that you signed it, but don't remember doing so, is that correct?
CHAIRPERSON: All right. Yes, do carry on.
MR NADASEN: Let's go back to your answer, where you said, no one sent us to do this, but we just decided upon doing it.
Did you ever answer this question in this way?
MR MDLETSHE: No, I did not. I explained that we had actually been sent by someone.
I did explain that that person ordered us to do this on this particular day.
MR NADASEN: Are you saying somebody ordered you how to fill in the form?
MR MDLETSHE: No, I don't remember anybody telling me.
MR NADASEN: All right, we just want to understand you Mr Mdletshe. This is the difficulty, you answered, in the form you said, you just did it on your own, that is what is in the form. In your evidence you said Mr Alfred ordered you.
Why is there one answer in the form, and a different answer in your evidence, that is what we want to understand?
CHAIRPERSON: Not only that, you say that you said this because it was for the purpose of the court, you were prepared to lie to the court, that is why you said this?
When it was pointed out that your trial had long been over when you filled in this form, so it couldn't have been for the purpose of the court?
MR MDLETSHE: From the knowledge that I have, with regards to the form, I can say that it is possible that I responded in this way, because this form was filled in a long time ago, in fact I have filled in numerous forms, about six.
CHAIRPERSON: Let's just record that, you say it is possible that you did say this in the form?
MR MDLETSHE: Yes, but this question is very important. I have always mentioned that it was Alfred who had ordered us to do it, and we also did it on behalf of the organisation.
CHAIRPERSON: Please, I don't think we are talking about what you always said you see. You have told me a short while ago, you did not say these things in the form, as it is recorded. Now you say it is possible that I did say this in the form? That is correct now, is it?
MR MDLETSHE: My reason for being here is to tell the truth.
ADV DE JAGER: If that is so, why did you lie in the form because both can't be the truth? You are telling us now that you had been ordered by Mr Alfred to do so. In the form you said no, you haven't been ordered by Alfred, you did it on your own.
Why did you lie when you completed the form?
ADV SIGODI: Sorry, before he answers that, can I just point out that on the first page of the Zulu form, it is written re-received. I would like to clarify if the applicant made only one form, filled in one form or how many forms did he fill for the purposes of amnesty?
MR NADASEN: Esteemed Commissioner, there is also on page 24 a sworn affirmed statement in answer to a letter which he received from the TRC, dated 13 October 1998.
CHAIRPERSON: Yes, we will come to that, let's just clear up this form before we get deflected from this form. The question has been put to you why did you lie in this form?
I want you to lie that question, why did you lie in this form, that is the question put by my colleague, and I am waiting for an answer to that.
MR MDLETSHE: It is difficult to respond to that question, because what I am saying today is the truth. I do not deny that this is on the form, but I do not understand how it happened.
When I filled those form, and when I took the Zulu form to the office, I was told that they wanted the English form, and I had to take it back to somebody else who could fill it in for me.
I do not understand how this all happened.
CHAIRPERSON: One thing is certain, nobody told you to fill the form in the way it is filled, isn't that so?
MR MDLETSHE: Yes, I understand that. Even in prison where I am, I always talk about this matter. I do not deny that it is in the form, and it is signed by me, but I do not know how it happened.
ADV DE JAGER: Did you want to protect Alfred?
INTERPRETER: Please repeat the question.
ADV DE JAGER: Did you want to protect Alfred?
MR MDLETSHE: I can say that at the time, yes, I wanted to protect him, but I have decided to tell the truth as it is. Even if I die today, I will be free.
CHAIRPERSON: In the file, in your trial, is it not correct that you and your two colleagues, also implicated Alfred and said that you had carried this out because Alfred asked you to carry it out?
MR MDLETSHE: I did explain that yes, I mentioned him in court. I explained that it was him who had given us that order on the day.
CHAIRPERSON: So now how can you tell us that you wanted to protect him?
MR MDLETSHE: When we are together, a lot of different things are discussed and there are inmates from different political parties and no one is there to protect whoever. In prison, there is no animosity between prisoners, but on the outside, we were involved in political conflicts.
CHAIRPERSON: I don't know what all that means, and I don't know how relevant it is.
MR NADASEN: Thank you. Mr Mdletshe, you said that, did you complete standard 3, did you pass standard 3?
MR MDLETSHE: No, I did not complete standard 3. When I was arrested I was still doing standard 3.
MR NADASEN: Is it possible that when you filled the form in, you filled this form in, you might have been confused about what had happened in court and what was needed, how you had to answer? Is it possible that you were confused with all the facts?
MR MDLETSHE: That is possible.
CHAIRPERSON: But you knew that for the purposes of the amnesty application, you had to tell the truth? You knew that, isn't it, in order to get out of jail?
MR MDLETSHE: Yes, I knew that.
MR MDLETSHE: Although I did not have full information.
CHAIRPERSON: Yes, but you knew that you were required to tell the truth for the purposes of this form and despite that, now you say that you didn't tell the truth?
Anyway, we have dealt with that problem, let's just carry on with the next aspect.
MR NADASEN: Thank you. Mr Mdletshe, after you said that Mr Alfred gave you something to drink, how long had you stayed at his house then, after you had something to drink?
MR MDLETSHE: The incident happened at half past five in the afternoon. I think we left at about seven, because we were just sitting around drinking, smoking dagga. I think we left at about seven o'clock, because there was a clock on the wall.
MR NADASEN: And then from Mr Alfred's house, where did you go to?
MR MDLETSHE: The three of us left, Nkondani went into his aunt's house. Because Alfred had given me the gun, Fani and myself proceeded. Fani went to his home, and I also went to my home.
MR NADASEN: Mr Mdletshe, you have spent almost six years in prison now, is that correct?
MR MDLETSHE: Yes, that is correct.
MR NADASEN: And during this time, have you reflected upon the murder?
MR MDLETSHE: Yes, it is something that I constantly think about, because it remained with me. If this TRC process did not exist, I would even go to the victim's family and ask for their forgiveness.
When this happened, we were actually involved in this political conflict. We were both attacking each other.
MR NADASEN: Thank you Honourable Chairperson, that is the evidence.
ADV DE JAGER: Okay, are you not going to deal with the further particulars and his answer on that, that appears on page 23 and 24?
MR NADASEN: I could place that on record, esteemed Commissioner. Because they are filed off record, I submit I could raise that point, in argument. To my mind, esteemed Commissioner, it confirms the evidence that he received instructions.
If need be, I could reiterate that for the sake of caution.
ADV DE JAGER: It is for you to decide.
CHAIRPERSON: Is it going to be a contention that what he said here, on page 24, is the correct version?
MR NADASEN: It will be my contention Honourable Chairperson, that one must approach this cumulatively and assess what he said in the light of all the other evidence and possible pressures that were brought to bear, upon him.
CHAIRPERSON: There are contradictions?
MR NADASEN: It is a difficulty I know, that one will have to address. I propose to do that in argumentation.
NO FURTHER QUESTIONS BY MR NADASEN
CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson. Mr Mdletshe, you stated in your evidence in chief that when there were problems between the IFP and the ANC, these matters were always reported to the police, is that correct?
MR MDLETSHE: I will try and explain this. At that time, when there was a problem between the ANC and the IFP, it was not easy for us to report these matters to the police, because they were close to the ANC. They would come to the area if they had been summoned by Kechla, but they would not come if called by the IFP.
MS PATEL: That wasn't your evidence in chief sir, initially when you were questioned about the assaults that took place, you said you had no personal problems with the ANC, you had never been personally attacked during that time, and that when there were problems, these were always reported to the police? Now you are saying something different, would you like to explain or clarify the position please?
MR MDLETSHE: I will try and explain. I said that happened in the Mona area, where if the ANC attacked or assaulted a person, the police would be contacted. But with regards to Driefontein, that question was not put to me.
In that area, the IFP was not able to call the police, because even if they did this, the police would not arrive timeously, they would sometimes arrive three days after an incident, to take a statement and the perpetrator would not be apprehended.
But, if a member of the ANC had been injured or if it was an attack on the ANC, they would arrive at the same time, that was what I was trying to explain.
MS PATEL: No Mr Mdletshe, you know the question that was put to you, wasn't related specifically to either Mona or Driefontein, your evidence very clearly was that IFP members were assaulted, but would report the matter to the police. You didn't elaborate further as to whether you know, it was Mona or Driefontein, and the question didn't relate to that.
MR MDLETSHE: When my Attorney was speaking on this matter, when he was talking about Mona, I was not questioned about this, with regards to Driefontein.
ADV SIGODI: Sorry, how far is Driefontein from Mona?
MR MDLETSHE: As I explained before, that I left my home at seven and arrived at ten. Driefontein area is actually closer to Stanger. The area, the Mona area is under the jurisdiction of Tongaat.
ADV SIGODI: So there were two police stations there? A police station for the Mona area and a police station for Driefontein?
MR MDLETSHE: Yes, there were different police stations.
MS PATEL: Mr Mdletshe, just before you stated that the matter would be reported to the police, you also stated, you confirmed that the ANC would terrorise you during that time, and you mentioned amongst others that they would stop you from shopping at Tongaat, but there was no decision to kill them, and then you went further in explanation thereof, you stated that IFP members were assaulted, but would report the matter to the police.
Let me explain the difficulty I have with your evidence sir, the impression that is gained from what you said then, was that when there was conflict, you could always resort to the police to assist you, now you are saying something different.
MR MDLETSHE: I explained before that Driefontein and Mona are two separate areas. The Mona area had a different police station, which was a KZP police station, and the area of Driefontein was under the Umhlali police station. I did explain that people from Mona were suffering and they had been terrorised by people from the ANC.
I was not asked with regards to Driefontein, whether there were incidents where people were being terrorised by the ANC. I was only asked with regards to the Kechla incident.
MS PATEL: If can just take you back to your evidence, when you were questioned about the relationship between the IFP and the ANC, your response was the relationship between the IFP and ANC was not good, because the ANC used to attack us.
Then you went further and you said in the Mona area, this didn't happen. I started having problems in Driefontein. Now you are saying that there was problems in Mona as well? What is the true position?
MR MDLETSHE: No, I did explain before that I was asked on the issue of Mona, I was asked how the situation was and I explained this. The ANC did not trouble the people of Mona as much as they did those of Driefontein.
They would come from Tongaat and other areas and block people from buying at Tongaat. The leaders in the area, were able to contact the police if there was a problem. That is if maybe a person was killed, they would be able to contact the police. That is the people from Mona.
I was not question about that with regards to Driefontein.
MS PATEL: We will leave that for argument. There are two things that I want you to confirm that you said in your evidence in chief. One is that personally you had no ill feelings towards the ANC, is that correct?
MS PATEL: Okay, and then despite the fact that the ANC was terrorising you, there was no decision to kill them?
MR MDLETSHE: Yes, the ANC did terrorise us, but there was no decision to actually attack them, but when they attacked us, we should be in a position to defend ourselves.
At the time though, we were always fleeing them, because the ANC people would not suffer attacks. I and other people, who were well versed in politics, we were - I and other comrades in the IFP, who were well versed in politics, did not regard the ANC as an enemy.
We were of the opinion that if a person had committed a crime, we would report that person to the police, but when I arrived at Driefontein, the situation was different. I discovered that the ANC was attacking people and we could no longer tolerate this, and therefore decided that we should do things their own style because they terrorised us and they insulted us, they called us illiterate, to such an extent that a border was established.
There were two bus services in the area, Mayville and Putco and the IFP people used to use the Putco buses, that was a decision taken by the ANC. People from the ANC would use the Mayville Bus Service.
If as an IFP member, you took the Mayville bus, you will be insulted and it was possible, that you could be killed. As a member of the IFP, it hurt me that people would terrorise us like that.
It is very painful if you see elderly people leaving their homes, sleeping in forests, because of the ANC. That was called politics.
MS PATEL: That may be so Mr Mdletshe, but you weren't from the Driefontein area, you were from the Mona area, not so?
MR MDLETSHE: Yes, it is like that.
MS PATEL: And in terms of the situation in your area, things were controllable to an extent, the violence, because there was no decision to attack, so it wasn't so bad that you needed to take action, not so?
MR MDLETSHE: I would explain it like this. What I can say is that when I arrived at Driefontein to see my girlfriend, it was known that in that area, there is a problem that when you are from Mona, you are from an IFP stronghold or area, it was well known that Mona was an IFP area.
When you arrived there, you would actually experience or encounter their problems, and if you are an IFP, you could also be assaulted because you are an IFP. You could be assaulted, because you are known that you are an IFP, you are from such and such an area. As much as the ANC people would be actually did likewise.
If the ANC person goes to an IFP area, he would actually be attacked, because that person is an ANC.
MS PATEL: You stated in a letter that you sent to our offices, I just want you to have a look at the letter, Mr Nadasen, do you mind handing your client a copy of page 18? Thank you.
Mr Mdletshe, do you recognise this letter?
CHAIRPERSON: What page are you referring to?
MS PATEL: 18 Honourable Chairperson. Is this in your handwriting?
MS PATEL: Not, whose handwriting is it?
MS PATEL: I am asking whose handwriting is it?
MR MDLETSHE: It was an inmate that I asked. It was in Sterkfontein prison, I asked the inmate there, in Pietermaritzburg.
MS PATEL: Okay, and did he write down what you had been saying to him?
MR MDLETSHE: Yes, what I was telling him at that particular point in time.
MS PATEL: Okay, the person who wrote down what you were telling him, did he have any prior knowledge of this incident?
CHAIRPERSON: Apart from what he told him?
MS PATEL: Yes Honourable Chairperson.
MR MDLETSHE: I initially explained it to him, I explained everything, how the situation was and then he proceeded on writing what was actually explained to him.
And then he read it for me, all that was written and then I discovered that some of it, was the truth and something that he actually added, that was actually, he actually also included some of the things that occurred in court.
MS PATEL: But if he didn't have any prior knowledge of this incident, how would he have known what had happened in court and then inserted it into this statement?
MR MDLETSHE: I am the one who was explaining that to him. I was writing on the side, I wrote myself and then he actually translated it for me.
I explained everything to him initially. I am not denying that he actually knew about what was happening in court, because I had before he could actually start writing, I told him everything that had occurred.
MS PATEL: When he read the statement back to you and you realised that he was including things that you didn't want included into this statement, why didn't you tell him to take it out, to erase it or put a line through it?
CHAIRPERSON: It didn't matter, because after all whatever he didn't like, it was what he had told him. You see, the information the writer got, was from him, whether it was relevant or not relevant. The writer merely wrote down what was said by the applicant.
MS PATEL: I thank you Honourable Chairperson, we move on from there.
You stated to him that you refused to go and kill Kechla, but that after they threatened you and said that he would kill you and your family, if you didn't do what was asked of you?
MR MDLETSHE: I will explain it this way. Myself at that particular time, what I can say is that he was writing what I was saying and some of it that I was explaining to him, I was explaining to him what has occurred, what had occurred in court.
The rest I actually included what I was writing in court. I am not denying that I said that, that was the court incident. I did say that.
MS PATEL: Then there is another statement where you in fact confirm the same thing again, where you said on the 3rd of April 1992, you said if I am not going to kill Kechla, I must choose between the two things, to lose my family and myself. Why did you keep repeating the things that was said at court, if you knew that that wasn't the truth and you knew that to qualify for amnesty in this forum, you have to tell us the truth?
Why did you persist in that version? Why didn't you in your statement say to us, that this is what I said at court, it is not true, and this is why I said it at court?
MR MDLETSHE: When I said this, it is because I took it that here at the TRC, I took it that the statement that was actually considered in court, would also be considered here, and I then actually also included the truth in it.
MS PATEL: No, you still haven't told us the truth Mr Mdletshe. You have still given us two versions.
CHAIRPERSON: (Microphone not on), but nevertheless, just carry on.
MS PATEL: Thank you Honourable Chairperson. You were saying that Nkondani had refused to carry out the order, is that correct?
MS PATEL: Okay. Why didn't you refuse?
MR MDLETSHE: It is because at that time, it wasn't easy to refuse because he was the leader at that time.
MS PATEL: What do you mean by that? Were you afraid or what was the position? Why wasn't it easy to refuse?
MR MDLETSHE: Because I knew at that particular point in time, that the IFP people are being killed.
CHAIRPERSON: You said you had a difficulty in refusing at that time. What was the difficulty?
MR MDLETSHE: I didn't have a problem of killing, accepted Kechla was supposed to be killed because I knew that Kechla and them were also attacking us. That is why I also went to kill him. That is a well known thing that IFP people are assaulted.
CHAIRPERSON: We will take the adjournment at this stage and resume in 15 minutes.
W B MDLETSHE: (still under oath)
CROSS-EXAMINATION BY MS PATEL: (cont)
Thank you Honourable Chairperson, just one final question.
Mr Mdletshe, you stated just before the break that it was difficult to say no. I just want to understand that. Are you saying that it was difficult to say no to Alfred or that it was difficult to say no because of the prevailing situation in Driefontein as you understood it?
MR MDLETSHE: Because of the prevailing situation.
MS PATEL: Thank you Honourable Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Any re-examination?
RE-EXAMINATION BY MR NADASEN: Thank you Honourable Chair. Mr Mdletshe, you told the tribunal that when you filled in a form an inmate helped you to fill that in, is that correct?
MR MDLETSHE: Yes, it is the truth.
MR NADASEN: What was the name of this inmate?
MR MDLETSHE: I can't quite remember, it is Ndlandla.
MR NADASEN: Ndlandla. Why did you go to this inmate and asked him for help?
MR MDLETSHE: Because I couldn't write, my handwriting is legible. I couldn't finish writing words properly.
MR NADASEN: This inmate that you went to, do you know whether he was educated or not?
MR MDLETSHE: I ask him before. I asked him before what standard, and he said he went as far as standard 6. Then I explained to him that there is a TRC letter and I would love him to help me, to respond to the letter, because that was already late and then he started writing.
I wouldn't know whether he was writing what I was saying or not.
MR NADASEN: Did anybody help you when you filled the forms in, the affidavits, did you ask anybody to help you also?
MR MDLETSHE: At Sterkfontein, I used to ask Ndlandla in the other area, I would ask somebody else in the particular area that I am. In I am in Westville, I would ask somebody at Westville and if I am somewhere else, I would ask somebody.
MR NADASEN: When you answered the question that no one sent us to do this, but we just decided upon doing it, who helped you fill the form in then?
MR MDLETSHE: That puzzles me. As I was explaining to my inmate that he should write, it is possible that he would have written what I did not say. I explained what is actually to be written.
MR NADASEN: Mr Mdletshe, you must listen to my question and answer it. Who helped you to complete, did anybody help you complete the affidavit?
MR MDLETSHE: I asked the police there.
MR NADASEN: I am referring to the affidavit, Annexure Form 1, pages 11 to 17. The one that was completed in Zulu, application form for amnesty in terms of Section 18.
CHAIRPERSON: (Microphone not on)
MR NADASEN: Yes. You said you asked a policeman to assist you?
MR MDLETSHE: I say is that the affidavit where it was indicated that I must tell only the truth, about full names of Nkondani. I think that was that letter where I asked the police.
MR NADASEN: Well, let me show you the affidavit, so that we are clear on what we are talking about.
ADV SIGODI: Sorry, on what page are we?
MR NADASEN: We are now on page 1. That affidavit, did anybody help you to complete that affidavit?
CHAIRPERSON: Sorry, this is page 1 to 10?
MR NADASEN: This is page 1 - 10, yes. Who helped you to complete that?
MR NADASEN: When we go to question 11, question 11, how did he explain this question to you?
CHAIRPERSON: Can't he read, he might not be able to write very well, but can't he read Zulu?
MR NADASEN: Mr Mdletshe, are you able to read Zulu?
MR NADASEN: Now if you look at question 11, do you understand what is being asked of you there?
MR MDLETSHE: Yes, I do understand the question, but I would like to have a look at it before, and then I will answer you. Can I just quickly glance at this?
MR MDLETSHE: I try and explain that we were not sent by the IFP.
MR NADASEN: Before you answer that, what does the question mean, tell us, explain to us what you understand by the question.
MR MDLETSHE: The question is, is the action done, is the reason or the action that led us to do - is the action of not doing the action or actions, that were to be carried out, was it carried because of the instruction of somebody or on behalf of or in agreement.
MR NADASEN: Mr Mdletshe, are you translating the question?
MR MDLETSHE: Yes. I thought you say I should explain the way it is written. I am explaining according to the way it is written, that is the way it is written here.
MR NADASEN: I want to know what you understood by the question, how did you understand the question.
MR MDLETSHE: There I did not understand whether they were talking about the entire organisation, that it was sending a person or whether it was one person. That is why I was explaining that I was not sent by anyone.
That is why I said we were not sent by somebody. That is why I said that, because that was not explained at that particular point in time.
MR NADASEN: When you said no one sent us to do this, but we just decided. Who were you referring to when you said us, no one sent us, but we decided. Who is the we?
MR MDLETSHE: Myself and Alfred, that is what I can say. Myself and Alfred who took the decision.
It was one person who was taking the decision, Alfred, and I carried forward the action.
MR NADASEN: Thank you Honourable Chairperson.
NO FURTHER QUESTIONS BY MR NADASEN
MR NADASEN: That is all Mr Chairman.
CHAIRPERSON: I think you are going to place on record, the distance between Mr Alfred's house?
MR NADASEN: Yes Honourable Chairperson, we did the calculation with the assistance of a gentleman, and we agreed plus minus 18 metres.
CHAIRPERSON: The distance between the house of Alfred?
MR NADASEN: Yes, and where Mr Kechla was standing.
ADV SIGODI: You mentioned that after the killing of Kechla, you were given some alcohol and then you smoked some dagga. Did you smoke any dagga before killing Kechla?
MR MDLETSHE: No, I had not smoked.
ADV SIGODI: Did you have any alcohol before killing Kechla?
MR MDLETSHE: No, I did not have alcohol.
ADV SIGODI: Okay, that is all.
ADV DE JAGER: In your own mind, what did you think would you achieve by killing the deceased?
MR MDLETSHE: At that time, I thought that because the deceased had been responsible for the terror that they inflicted on the community, I felt that that community would be relieved, because even after his death, there was relative peace in the area.
ADV DE JAGER: And when you went out to kill him, was Mr Alfred looking, he could see where he was standing from his house, he could see what you were doing?
MR MDLETSHE: Yes, he could see because there was nothing that could hide us from view.
CHAIRPERSON: Thank you very much. Are you calling any other witnesses?
MR NADASEN: No, I am not Honourable Chairperson.
MS PATEL: No, thank you Honourable Chairperson, and if I may place on record at this stage, in as much as the victim's next of kin had been notified, there has been no response from them. Thank you.
MR MDLETSHE: I have a request to make. I would like to make a request to the TRC if they could assist me to return to Sterkfontein prison, because at least there one is able to do some work, unlike here in Westville, where I sit the whole day doing nothing.
CHAIRPERSON: The Committee itself has no power in that regard, but I am going to ask Ms Patel to contact any welfare officer of the TRC that may be available to make this investigation on his behalf.
MS PATEL: If I may respond Honourable Chairperson, the applicants for this hearing have been transferred to Westville prison, because it is closer to the venue. They will all in fact be returned to the prisons from which they had originally come from.
So it is a temporary arrangement, thank you.
MR MDLETSHE: I would be pleased, because this inactivity is a problem, and I would also like to take this opportunity to beg for forgiveness from the victim's family.
All that happened, happened in the course of the political conflict. I place my sincerest apologies.
CHAIRPERSON: Would you like to address us now?
MR NADASEN IN ARGUMENT: Thank you Honourable Chairperson, in argument I want to focus primarily on the proposition that the applicant committed the murder in the execution of an order, issued by and with the approval of one Mr Alfred Sipho Ngema, who in the applicant's mind, purported to act on behalf of the IFP.
In support of that proposition, I submit that the evidence of the applicant today affirms the findings of the Court, which convicted him of the murder. Findings, which I submit are not only relevant, but also helpful to this enquiry.
In order to substantiate the proposition, I would want to refer to that judgement and two relevant pages. Firstly, the context of the murder, I refer to page 37, paragraph 2, lines 12 to 19 where the following was said: "and it is a factor that must certainly be taken into account, that this killing was yet another of the killings at a time of political unrest, the killing arising from that unrest, a killing against the background of a situation of unrest, in which youths and even juveniles are being increasingly drawn into the violence and used as instruments of it."
I submit that that captures very succinctly, the context of this murder. Secondly, the characterisation of the murder and I refer to page 27, paragraph 2 lines 5 to 8, where the murder is characterised as, and I quote "an act of deliberate political assassination committed by accused 1, who is the applicant man today, an Inkatha man on the deceased, an ANC man." At line 12 there is a suggestion that the murder was actuated by I quote "a political motive". At line 9 and 10 it is indicated there is no hint of, in any of the evidence, of any different motive.
Thirdly, the description of the deceased again page 27, line 30, the deceased was described as a political activist and on page 28, the first three lines, as someone who was perceived to be and I quote "a nuisance by those who were antagonistic to anything done to promote the cause of the ANC."
Turning from, moving on from the description of the deceased, I move fourthly now to the role of the applicant and in this regard, I refer again to page 28, lines 10 and 11, where the Court found and I quote "that there is some reasonable possibility at least, of his not having been an entirely free agent in this matter." Further, lines 12 and 13, that it seemed unlikely that he himself on his own conceived of the idea of killing the deceased; lines 16 to 18, where he is described as someone who appears to have been a humble musket bearer.
ADV DE JAGER: (Microphone not on)
MR NADASEN: I will refer to that esteemed Commissioner, may I postpone that to a later point in my argument, thank you.
I am doing this sequentially so as to arrange it in a way. Thank you.
Page 31, paragraph 2, lines 5 to 8, where the inference drawn, is articulated as follows: if a tool in the hands of someone else, he was a willing tool or at least a willing tool enough to carry out the atrocious orders he got. That is as far as the applicant is concerned.
Turning fifthly now to what I would call the political nature of the murder. In so far as it is relevant to this application, I draw attention to page 28, lines 18 to 24 and I am indebted of course to Adv De Jager, but I deal with the issue now, where the following was said: The possibility exists, it seems to us, that he acted in the shooting under orders from someone senior and more dominant in the local Inkatha setup, that the decision that the deceased must be killed, was taken by some such person and that accused 1, who is the applicant, was the person who carried out the orders to bring about that result.
I then refer to page 29, lines 5 to 11 where the Court again affirmed and emphasised that it accepted that the possibility reasonably existed that the applicant acted at the instigation, at the command, as a result of the incitement, whichever expression one wishes to use, of someone else, someone older than him, someone more prominent than him in the local Inkatha hierarchy.
At page 38, lines 23 to 27 the Court described the murder as an appalling killing, planned cold blooded. But it also pointed out that it was not the applicant's idea, but someone else's, and that that fact told in favour of the applicant.
Sixthly and I think also importantly, is to look at the role of Mr Alfred. It is true that the Court acquitted Mr Alfred Ngema, but I draw attention to page 33, line 10 where the basis of that acquittal was because there was no and I quote "proof positive beyond reasonable doubt", however, and notwithstanding the acquittal, it is decisive to note the following comments - page 32, lines 16 and 17 where the Court said that Mr Alfred Ngema was not as innocent of this matter, as he wanted the Court to believe.
Page 32, lines 23 to 25 where the Court said that there was a strong suggestion that Mr Alfred Ngema was involved in at least some discussions about the event.
Page 33, lines 7 to 9, where I submit is a very telling finding, articulating these terms, the finger of suspicion points very strongly and definitely at accused 2, that is Mr Ngema as the instigator of this murder.
A difficulty, an apparent difficulty, is the answer which the applicant gave in completing the form. I submit that that difficulty must be seen against the light of certain factors, the education of the accused, the fact that he needed assistance to complete the form, the relative complexity of the question to a person of his educational background, the reasonable possibility that in his understanding that he had to tell the truth, meant everything, the fact that in re-examination ...
CHAIRPERSON: What did you mean by that?
MR NADASEN: I meant by that the possibility that coming clean meant that he had to indicate the version he gave at court, arising of course from the complexity of the question.
The fact that in re-examination he also indicated that when asked who did he understand to include in the word "we", he answered without any reluctance, myself and Alfred.
CHAIRPERSON: I thought he was trying to shield Alfred. How could "we" be meaning Alfred?
MR NADASEN: Honourable Chairperson, the possibility does exist that he was trying to shield Alfred. I submit though that the process, the application here must be seen as a process rather than as an event, that there could have been factors playing in his mind at the time he completed the application.
All these factors, the cumulative effect of it is that there is this reasonable possibility that what he is saying, is the truth.
ADV DE JAGER: Your submission that when he referred to us and we, that referred to the persons involved in the planning and carrying out, and he wasn't aware and there is no evidence that he had been aware of that Alfred received an order from higher up?
MR NADASEN: That is correct, he is not aware of that as I understood the evidence esteemed Commissioner, of any higher up orders.
CHAIRPERSON: Where Alfred ranks in the hierarchy of the IFP, is also not clear except that in his mind, he was somebody of influence?
MR NADASEN: That is true, that is as far as I can take it, yes.
CHAIRPERSON: (Microphone not on)
MR NADASEN: That possibility does exist, though I submit that in the context of this application, it is relevant and important how the applicant perceived Alfred, the factual position of course, could be different.
Honourable Chairperson and esteemed Commissioners, I submit that the cumulative effect of the evidence led today, seen against the background of the findings of the Court, justifies the conclusion that the act of the applicant in murdering Mr Kechla, was the result of orders issued by someone of influence, certainly in the applicant's mind in the Inkatha hierarchy.
That the applicant acted as a member of the IFP, that the applicant and the person or persons who instructed him, believed that the murder would advance the cause of the IFP and that as such, the murder was associated with a political objective.
Notwithstanding the confusion surrounding the manner in which the question was answered in the affidavit, I venture to submit that the applicant has come clean and has spoken the truth, and that he has in fact satisfied the requirements for amnesty and I accordingly ask the tribunal to grant him amnesty, thank you.
CHAIRPERSON: Ms Patel, is there anything that you wish to add?
MS PATEL IN ARGUMENT: Honourable Chairperson, if I may respond briefly. I would have to concede Honourable Chairperson, that this applicant in fact did act under instructions. I believe the question however poses some difficulty is whether the applicant in fact acted as a willing party or whether he acted under duress.
It is my respectful submission, given the probabilities of this case, the applicant has conceded in no uncertain terms that he had no personal ill feelings or ill feelings towards the ANC, he stated in fact that the option of reporting matters to the police, was in fact open to them if and when problems arose in the area, that he himself was not from that particular area, he had come from an area that was in terms of his evidence, not as strife torn as in Driefontein.
If one looks at his evidence that he tendered at the trial, and his application form, plus his letter to us, plus the affidavit and his motivation that he set out therein, it is my respectful submission that the various explanations that he has given to us as to the contradictions in those statements and at the evidence at the trial, are implausible Honourable Chairperson.
It is my respectful submission that the probabilities are in fact that the probabilities lean towards the fact that the applicant in fact acted under duress. It is my respectful submission then that if that is accepted, then his political motivation is brought into question.
ADV DE JAGER: I have got a problem with that submission. We had evidence on numerous occasions, that for instance the police was ordered and he couldn't refuse because his superiors would climb down on him. We had freedom fighters saying that if I wouldn't obey an order, they would think that I am collaborating with the police or the enemy, so I had to carry out the order.
Does the question of duress, I may not be willing, a willing partner to commit a murder, but in order to advance or enhance my political party, I would carry it out if ordered to do so. It may be that my own party members could discriminate against me in future, if I am not willing to carry out the order, a kind of duress?
Would that prohibit him from getting amnesty?
MS PATEL: I hear you Honourable Commissioner, the difficulty that we sit with though is that we are not in a position after having heard the evidence of the applicant, and may I state before I proceed that the onus is in fact on the applicant to leave us with no doubt as to the circumstances under which he acted and his political motivation.
It is my respectful submission that he hasn't been totally honest with us in that regard. We sit with various probabilities and so we sit with probabilities, that we ought not to be faced with. The position ought to be clear and it is still not clear yet. The applicant says that he lied at the hearing.
One is not sure whether he is lying now, who he is protecting, if he is protecting anybody at all.
ADV SIGODI: Ms Patel, the way I understood the applicant's version was that at the trial, at the criminal trial, he stated that he acted under duress, that he, Alfred, had told him that his family would be in danger if he did not do that.
I asked him if that was true and he said that that was not true. He was coming to this Committee to say that there was no such threat by Alfred, he merely took the order to go and kill Kechla without any threat to his family having been made by Alfred.
That aspect, I thought that he had clarified that there was no duress on him. There was no threat to his family, so he was not fearful. The way I understand it is that he killed Kechla because he also believed that by killing him, then he would be pursuing the objective of the IFP. That is how I understood it.
MS PATEL: If that is the case, then we are still faced with the difficulty in terms of his response to question 11(a), where he says that we decided upon doing it, and that no one sent us to do it, whereas he in fact and indeed knew that he was sent by Alfred at the time.
ADV DE JAGER: If he would include Alfred in the "we", Alfred wasn't sent as far as he knew by anybody else, and that was what he explained to be. He said me and Alfred.
MS PATEL: My response to that is that may be an expedient response from the applicant to get himself out of the difficulty that he is faced with. The we could also refer to the other two persons who had in fact accompanied him across the road, I forgot their names. I believe it is Fani and Nkondani. That possibility exists as well?
ADV DE JAGER: That is a possibility too, but if you have a look at page 24 that was before the hearing, it was unfortunately the document is not dated, but that was an answer on a request by the Commission or by the Committee's representatives, where he also stated that he was ordered to kill the person, but there again he also states that he had been acting under duress.
Here he is still saying I have been forced to do it, because my family could be killed, that is what Alfred told me. He has retracted that now, so you've got that contradiction and we, wherever you want to say it is withdrawn here, it appears on another place, so that is something which should be taken into consideration.
MS PATEL: Thank you Honourable Chairperson, I will not take the matter any further than that, thank you.
MR NADASEN IN REPLY: Just very briefly, thank you Honourable Chairperson.
On the question of duress, I respectfully concur if in fact that was the suggestion of Commissioner De Jager, that it is not relevant for the purposes of these proceedings, but for what it is worth, they were relevant at the trial and this was disposed of as follows by the Court, page 28, line 24 where the following was said "one of the major issues in the case has been whether or not threats were made to him, threats against his life and that of his family, unless he carried out the order that he had been given."
Perhaps the importance of that issue is not as great as it may appear at first to be, and I submit this is decisive. Some threat is at least implicit, it seems to us in any such instruction given for a political assassination, so even if, even if a threat was given, and he was under duress, that does not lead to the conclusion by any stretch of logic, that the murder was still a political assassination.
I submit that it is not inconsistent for duress to be (indistinct) oppose with a political motive. Thank you.
CHAIRPERSON: The Committee will in due course consider this application and make its decision known, thank you very much.
Do you require some time before we proceed with the next matter Ms Patel, we will stand down for a short while, you can call us as soon as you are ready.
MS PATEL: Thank you Honourable Chairperson. The next matter on the role, is that of Solomon Khanyile, application 4051/96.
CHAIRPERSON: Mr Samuel, you are appearing for the applicant, are you?
MR SAMUEL: That is correct Honourable Chairperson.
CHAIRPERSON: Are you calling the applicant?
CHAIRPERSON: Mr Khanyile, will you please stand?
SOLOMON KHANYILE: (sworn states)
CHAIRPERSON: You may be seated.
EXAMINATION BY MR SAMUEL: Thank you. Mr Khanyile, which organisation do you belong to?
CHAIRPERSON: What about giving some personal details about himself first?
CHAIRPERSON: How old are you Mr Khanyile?
CHAIRPERSON: Where do you live?
CHAIRPERSON: What work do you do?
MR KHANYILE: I am not employed at the moment.
CHAIRPERSON: What work did you do?
MR SAMUEL: Thank you. Prior to your arrest and your subsequent incarceration, where were you living?
MR KHANYILE: I was residing at Umlazi section, M63.
MR SAMUEL: And for how long had you been residing there?
MR SAMUEL: When did you join the IFP?
CHAIRPERSON: He hasn't said that he had joined the IFP, I think you must first establish. Are you a member of the IFP and if so, since when?
INTERPRETER: Sorry, what would be the question?
CHAIRPERSON: Are you a member of the IFP?
CHAIRPERSON: Next question is when did you become a member?
MR KHANYILE: I think it was in 1977.
MR SAMUEL: Thank you. What position did you hold with the IFP?
MR KHANYILE: I was just an ordinary member of the organisation.
MR SAMUEL: The area that you lived in since 1967, that is M Section in Umlazi, how was it in terms of stability or instability in that area for the period that you lived there?
MR KHANYILE: It was a stable area.
MR SAMUEL: Did that situation change any?
MR KHANYILE: Yes, the situation did change.
MR KHANYILE: It was about in 1965, no, I think I am now getting confused. If my memory serves me well, it was in 1975 also.
MR SAMUEL: Let me help you by asking you this question, for how many years prior to your arrest, did you find that the stability in the area had changed?
CHAIRPERSON: When was he arrested?
CHAIRPERSON: Now your question, how many years prior to that.
MR SAMUEL: Thank you. For how many years prior to the time of your arrest, had the situation changed, had it become - for how many years did the area M Section, Umlazi, become unstable?
MR KHANYILE: I can say it was after three years, three years before.
MR SAMUEL: Thank you. What caused the problems in your area?
MR KHANYILE: There was the killing between the IFP and the ANC.
MR SAMUEL: Now, the area, the area that you lived in, was it a predominantly one party area or did the two different political parties, have an equal distribution of supporters in that area?
MR KHANYILE: It was an IFP stronghold.
MR SAMUEL: Without going into the details relating to the crimes that you committed, for the record and to inform the Honourable Commissioners and set out some background, the house that you committed these crimes at, whose house was that?
MR KHANYILE: It was the Qunqu Mkhize's residence.
MR SAMUEL: In the area that you lived, were there any IFP supporters killed?
MR SAMUEL: How many were killed?
MR KHANYILE: In that area, there were three.
MR SAMUEL: Can you name them for us?
MR KHANYILE: I don't know their names exactly, I would remember the surnames. It was the son of Mgcema, Mr Ngaleka and K.B. Magubani.
CHAIRPERSON: What year was this when these people were killed?
MR KHANYILE: The Mgcema's son, Ngaleka to be roughly, it was two years prior to the incident, and the other one in 1987, Magubani, died in 1987.
MR SAMUEL: You told us that these were three IFP supporters that were killed?
MR SAMUEL: In so far as Mr Magubani was concerned, what position did he hold in the IFP?
MR KHANYILE: He was the leader in IFP.
MR SAMUEL: Was he a leader for the IFP for a particular area?
MR KHANYILE: Yes, in the area where we were residing.
MR SAMUEL: I am going to take you back to the deaths of the other two IFP supporters.
Were there anyone charged for the death of Mr Mgcema's son?
MR KHANYILE: Do you mean Mgcema?
MR SAMUEL: I beg your pardon sir, Mr Mgcema's son?
MR KHANYILE: It was the son of Qunqu.
MR SAMUEL: And Mr Ngaleka, was there anyone charged for his, in relation to his death?
MR KHANYILE: No one was in prison, because he was found in the morning dead, and no one was seen doing the crime.
MR SAMUEL: What were the suspicions relating to the death of Mr Ngaleka?
MR KHANYILE: That was pointing the ANC people who were staying there at Qunqu.
MR SAMUEL: During 1987 the ANC was banned in this country.
MR SAMUEL: Were these people affiliated to any other organisation that you are aware of?
CHAIRPERSON: Which people are you talking about?
MR SAMUEL: Honourable Chairperson, the people that he refers to as the ANC people.
MR KHANYILE: Yes, they were called the UDF.
MR SAMUEL: If the M Section was an IFP stronghold, I beg your pardon Honourable Chairperson, if the M Section of Umlazi was an IFP stronghold, where were the ANC or UDF supporters living in the area during that period?
MR KHANYILE: It was the Qunqu boys who were at the M Section, they would call their friends from other sections and in particular from P Section.
MR SAMUEL: Are you saying to us then that the Qunqu boys as you refer to them, were UDF supporters?
CHAIRPERSON: What do you mean by the Qunqu boys, give us their names and how many were there?
MR KHANYILE: It was their son, their elderly son by the name of Zakhele who also died, who was taken by the people from P Section, who killed him in the forest.
CHAIRPERSON: Let's just go into all that about who killed who. I wanted to know how many Qunqu boys you are referring to when you say the sons of Qunqu. One is Zakhele, was there any other?
MR KHANYILE: Nunu and the other one, I have forgotten the name. I have forgotten the names of the other two who are younger.
CHAIRPERSON: How many Qunqu boys were there?
MR SAMUEL: You say that these four boys brought their friends into their house?
MR SAMUEL: When this occurred, did you take, I withdraw that question.
CHAIRPERSON: When you say this occurred, what are you talking about?
MR SAMUEL: May I withdraw that question Honourable Chairperson. What is your relationship with Mr Qunqu?
MR KHANYILE: We are in good relationship, we are in good terms.
MR SAMUEL: In terms of - were you a friend to him, or were you family to him?
MR KHANYILE: We were friends as well as relatives, he is my cousin.
MR SAMUEL: There were these attacks on IFP people in your area.
CHAIRPERSON: There were which attacks?
MR SAMUEL: The attacks on Mr Mgcema and Mr Ngaleka, were there any other forms of violence that occurred in the area relating to, being political in nature?
MR KHANYILE: UDF members used to attack IFP people.
MR KHANYILE: I am referring to the Qunqu boys and their friends, those that they used to fetch from the other sections.
MR SAMUEL: Mr Qunqu being your relative, did you take any steps to rectify the situation?
MR SAMUEL: Can you tell us what steps you took?
MR KHANYILE: I met him when we were from work, I told him that there is a person who wants to change the house, actually want to move from kwaMashu and come to Umlazi, how would it be if they could exchange because his boys are worrying him. The boys are troubling him and he also doesn't like what is happening.
He answered and said yes cousin, I can go there, however, those people do not know me. They will kill me, thinking that I am in line with what my boys are doing. It would be better, it is better here, because you know me that I am not in line with what my boys are doing.
CHAIRPERSON: When was this talk between you and Mr Qunqu?
MR KHANYILE: Before this incident, before doing this crime.
MR KHANYILE: What I am arrested for now.
CHAIRPERSON: Yes, do carry on.
MR SAMUEL: Thank you. Now, you told us that Mr Magubane died in 1987, do you remember the date on which he died?
MR KHANYILE: Yes, I do. On the 1st of January.
MR SAMUEL: Were you present when Mr Magubane died?
MR SAMUEL: Can you tell us firstly where you were on the morning of the 1st of January 1987, before you went to Mr Magubane's house?
MR KHANYILE: We were sitting, myself and Qunqu, drinking beer. It was at about ten to eleven o'clock in the morning.
The daughter of Qunqu arrived and said dad, Black is already dead. Qunqu asked who killed him and said it is K.B. Magubane.
MR SAMUEL: Can you tell us who had died, who she was referring to had died?
MR KHANYILE: It is a son to Qunqu.
CHAIRPERSON: He was sitting there talking to Mr Qunqu, his daughter arrives and tells him that, is that Qunqu's son called Black, had died, that he was killed by K.B. Magubane, is that right?
CHAIRPERSON: Qunqu's son's name was called Black, was that his name?
MR KHANYILE: Qunqu explained and actually said this boy is troublesome, actually he came back to die here, because I took him to my sister's place in Maritzburg because he did a crime, raping a girl, it was alleged that he had raped a girl.
It is apparent that he came back to die here. He said I am not going there. I answered and I said cousin, this is death, we cannot just not go there when the child is dead, let us go and have a look.
Indeed, we went there where Black had died.
CHAIRPERSON: I am still waiting to hear where?
MR KHANYILE: At Magubane's. When we arrived there, the deceased was laying on the pavement, covered with a towel. I actually opened to look and realised and then I told the cousin, that indeed, he is dead.
At that particular time, the brothers to this, they actually wanted to go inside the Magubane house, armed.
CHAIRPERSON: I wish you would lead your witness instead of allowing him to talk, you see, so that there can be some logical sequence of his evidence.
All right, he has told us that he and Qunqu went to Magubane's house and there they saw Mr Qunqu's son dead. He is talking about somebody else, who is he talking about?
MR SAMUEL: Let me clear that up Honourable Chairperson.
MR SAMUEL: You say you got to Mr Magubane's house, you saw Mr Qunqu's son laying on the pavement and you established that he was dead? With whom did you go to Mr Magubane's house?
MR KHANYILE: I was with Qunqu.
MR SAMUEL: After you had established that Mr Qunqu's son had died, you then told us that there was another problem that you experienced. Can you tell us what problem this was?
MR KHANYILE: The brothers of the deceased and the friends, they were there outside, armed, making a noise.
MR SAMUEL: What did they want to do?
MR KHANYILE: They wanted to enter into K.B.'s house.
MR SAMUEL: That is K.B. Magubane?
MR SAMUEL: And what did they want to do in the house?
MR KHANYILE: They wanted to kill K.B. because K.B. had already killed their brother.
MR SAMUEL: Were they prevented from going into Mr Magubane's house?
MR KHANYILE: Magubane had closed the gate.
MR SAMUEL: Did anyone make any efforts to stop these youngsters from going into Mr Magubane's house?
MR KHANYILE: It was myself and Qunqu who were trying actually to stop, to caution them not to do it.
MR SAMUEL: Did the youth leave the scene, that is did they leave Mr Magubane's house?
MR KHANYILE: No, they did not, they wanted to enter forcefully. The other one took a stone and threw it to the father and said you allow these people that we shouldn't enter the house, the people have already killed our brother, now you are cautioning us.
Myself and Qunqu said this is the duty of the police now.
MR SAMUEL: Did you succeed in stopping them from entering the house at that stage?
MR KHANYILE: No, it was in vain. When they threw a stone and it hit their dad on the foot, on the leg, their father said cousin, I am leaving now.
Indeed, he left. Myself as well, my wife said I should also leave. Indeed, I left the area, the scene.
MR SAMUEL: What happened to Mr Magubane?
MR KHANYILE: As I was indicating, when I left, nothing had happened to Magubane at that time. As I was just turning my back about to leave, or walking, a distance from here to the corner there, when you leave outside this room, just outside the corner, I actually heard an outcry at my back.
When I returned, the boys were already leaving the scene and making a noise and said yes, we have already killed K.B. and they went down the road, making a noise, being happy.
I entered the house and I found K.B. laying in bed, it was open there on the throat, blood was oozing out and I saw a white thing, or substance as well. I asked them who stabbed him, the Magubane's told me that they killed him, he is already dead.
CHAIRPERSON: You said you asked who stabbed Magubane, then you said they killed him. Is that what he said, what does he mean by that?
MR KHANYILE: They did not say who killed him, they just said they killed him.
MR SAMUEL: Who was she referring to when she said they killed him?
MR KHANYILE: She was referring to the Qunqu boys and their friends, because they had already jumped at the back, they entered the house.
MR SAMUEL: Did you make a statement to the police about this killing?
CHAIRPERSON: What happened after that before you go around making a statement. What happened after that, when you were told that Magubane was killed by the Qunqu boys and their friends? What happened next?
MR KHANYILE: A telephone call was made and the police were called.
MR KHANYILE: The police arrived and they took both the corpses, thereafter, we went to make the statement at the police station. That was quiet until the following Saturday, we buried K.B.
MR SAMUEL: I see, now, in your statement to the police, did you tell them exactly what you saw and did you identify the people who were at his house, trying to get in?
MR SAMUEL: Did the police make any arrests within the first two weeks of the death of Mr Magubane?
MR KHANYILE: No, no one was arrested.
MR SAMUEL: Did anyone enquire from the police as to why no one was arrested for the death of Mr Magubane?
MR KHANYILE: The wife went to ask and the police said they are still investigating.
CHAIRPERSON: Was anybody arrested for the killing of the Qunqu boy?
MR SAMUEL: Who had killed the Qunqu boy?
MR SAMUEL: Did you have any IFP meetings after the death of Mr Magubane?
MR KHANYILE: Yes, we had the small meeting.
ADV DE JAGER: Before dealing with this meeting, why did K.B. kill the Qunqu boy, or don't you know?
MR KHANYILE: When I hear by rumour, that in the previous day there was a party at Magubane's and they got drunk, the boys, and there was some trouble and Magubane chased them away and closed the gate.
They took stones and they threw at Magubane's house.
CHAIRPERSON: This is all something that you heard?
MR KHANYILE: Yes, this is what I heard.
ADV DE JAGER: So there was no political bad blood between the Qunqu boys and Mr Magubane, K.B., they visited his house and had a party there?
MR KHANYILE: There was, there was no good relationship, political relationship between the two, between the Qunqu boys and Magubane.
MR SAMUEL: Can we just go a little into this party that Mr Magubane had, who was this party for?
MR KHANYILE: Magubane was a respected person, he had the boys who were playing soccer for him.
MR SAMUEL: Were the Qunqu boys invited to this party?
MR KHANYILE: Yes, they were invited, because some of them were soccer players.
MR SAMUEL: And you say that there was a problem at this party?
MR SAMUEL: Now, after Mr Magubane died, you say ...
CHAIRPERSON: I think you started off asking how it came about that the Qunqu boy was killed and he told you that the previous day, there was a party and you heard a little about the boys were being driven out of the party. Now, you are moving off to something else, you haven't taken this thing to its conclusion, as to what happened to the Qunqu boy, how did Magubane kill him and why? Unless you intend doing it some other way?
MR SAMUEL: I will take the cue from you Honourable Chairperson. Were you present when the Qunqu boy was killed?
CHAIRPERSON: No, he wasn't, he received a report, and as a result he and the Qunqu boy's father went there and saw the boy dead. Surely you can ask him do you know how the Qunqu boy died and when, whether he knows.
MR SAMUEL: What report did you get relating to the death of the Qunqu boy, you told us that Mr Magubane killed him. Do you know the circumstances, did you hear the circumstances under which Mr Magubane killed Mr Qunqu's son?
MR KHANYILE: I heard that the Qunqu boys had actually attacked Magubane.
MR SAMUEL: What weapon did Mr Magubane use to kill Mr Qunqu's son?
MR SAMUEL: Did this death occur on the morning of the 1st of January 1987?
MR SAMUEL: Do you know who witnessed this death of Mr Qunqu's son?
MR KHANYILE: One boy was arrested who is a friend to this Qunqu boys, after some days, Magubane had died.
MR SAMUEL: Was that boy arrested for the death of Mr Magubane or Mr Qunqu's son?
MR SAMUEL: Let's go now to the meetings you say that, the meeting that the IFP held after Mr Magubane's death. What was discussed at this meeting?
CHAIRPERSON: When? When was the meeting?
MR KHANYILE: It would be anytime, we wouldn't actually set times, we would meet and talk. We would talk about the killing of IFP members by UDF people.
MR SAMUEL: After Mr Magubane died, how many meetings did you have?
MR KHANYILE: If I am not mistaken, although I cannot remember well, about three or so. I cannot quite remember.
MR SAMUEL: How long after Mr Magubane's death did these meetings occur?
MR KHANYILE: After a week and after a second week, discussing that a person can be killed and the police are not taking any steps about this.
And people who actually killed, were seen.
MR SAMUEL: Did the meeting take any decision relating to Mr Magubane's death?
MR KHANYILE: Yes, it did and it was apparent to them that the police are not arresting anyone, then we actually have to take the law into our hands.
MR SAMUEL: What do you mean by taking the law into your own hands?
MR KHANYILE: That we would actually attack and kill because they kill and they don't get arrested.
MR SAMUEL: Who were you going to attack and kill?
MR KHANYILE: We would actually attack all those boys who actually filled up that Qunqu's place.
MR SAMUEL: Did you decide when the attack would be carried out?
MR KHANYILE: Yes, we did. It was, we attacked on the 16th, it was at night, the 16th of January.
MR SAMUEL: The record shows that you were charged with an offence on the 17th of January.
ADV DE JAGER: It could have been after midnight?
MR SAMUEL: It says the night of the 17th?
MR KHANYILE: It was the 16th, and into the following day, it was maybe in the middle of the night. The following day was to be the 17th.
ADV DE JAGER: I don't think that is very material, whether it was the night of the 16th or 17th.
MR SAMUEL: Now, the meeting decided on the date of the attack, did the meeting decide who was going to carry out this attack?
MR KHANYILE: The meeting decided that we should, we, IFP men who are residents here, because we are killed and the police are not doing anything about it.
MR SAMUEL: What was the political purpose or objective for carrying out this attack?
MR KHANYILE: The motive or the aim was to kill the UDF people because they are killing the IFP people.
MR SAMUEL: Did the meeting discuss what weapons were going to be used?
MR KHANYILE: The meeting actually said they know the weapons that are used by people, tomahawks, butcher knives and spears.
MR SAMUEL: On the day of the attack, did the IFP men gather somewhere before they carried out the attack?
MR SAMUEL: Who was the person leading this group to attack the house of Mr Qunqu?
MR KHANYILE: I was asleep at night, on that day when we had a meeting during the day, when we had actually decided that we would attack that evening.
Three boys came, it was Sipho Ngwanyana, Nhlanhla Madlala and Sicelanhlanhla Cele.
CHAIRPERSON: Sorry, just spell that name please, the last name he mentioned. Nhlanhla Madlala and who else?
MR KHANYILE: Sicelanhlanhla, the surname is Cele.
MR SAMUEL: These boys came to your house, and what happened thereafter?
MR KHANYILE: They said wake up, these people have already attacked. I woke up and took my weapons. The others were already called, they were at the corner.
CHAIRPERSON: (Microphone not on)
MR SAMUEL: Mr Khanyile, you say these boys got you from your sleep, they awoke you and did they tell you the others have already attacked?
MR KHANYILE: That on our side, they are ready to go and attack, to launch the attack.
MR SAMUEL: Did they tell you where these people had gathered?
MR SAMUEL: The people on their side?
MR KHANYILE: They were around the corner from my house, they were on the road, just around the corner.
MR SAMUEL: When you say these people on our side, who are you referring to?
MR KHANYILE: I wouldn't know their names, because there were many people. It was the people from the area, the residents.
CHAIRPERSON: How many people were there around the corner, when you and these three got there?
MR KHANYILE: About 30 or more.
MR SAMUEL: When you got to the corner and saw these people who had gathered, when you had got to the corner and saw these people who had gathered to attack, to carry out the attack, what role did you adopt in regard to the whole gathering, were you a follower or were you leading this gathering?
MR KHANYILE: On my arrival, I did speak and I said men, let us go there to the Qunqu's place and no one should come out there, everything or everyone coming out should actually be killed.
MR SAMUEL: So you were issuing instructions to this gathering?
CHAIRPERSON: Do I understand to mean that even Mr Qunqu who was your friend, had to be killed also?
MR KHANYILE: In actual fact, we were actually afraid of anything or anyone who was there.
CHAIRPERSON: That is not the question man. You went to Mr Qunqu's house and you tell the people everyone should be killed, did you intend to kill Mr Qunqu as well, that is the question?
MR KHANYILE: No, because Qunqu didn't have any crime.
CHAIRPERSON: So what did you mean when you said you told them that everyone, no one should be left alive. Everyone in the house should be killed?
MR KHANYILE: A person's brain or mind when he is actually angry, doesn't work properly.
ADV DE JAGER: So Mr Qunqu was also at that house at the time?
MR KHANYILE: You mean at his house?
MR KHANYILE: Yes, he was in his house.
ADV DE JAGER: So, you instructed your army, your 30 people to kill everybody there and that would include Mr Qunqu?
MR KHANYILE: Yes, I did say that but I wasn't thinking at that particular time, that a person who is Qunqu and who doesn't have a crime, is also there. But I did say that.
CHAIRPERSON: What about Mrs Qunqu, did she have to be killed as well?
MR KHANYILE: He was the one actually who was very troublesome.
CHAIRPERSON: My question was Mrs Qunqu, she had to be killed as well?
MR SAMUEL: For the record, can you tell us why you wanted Mrs Qunqu dead?
MR KHANYILE: She is the one who allowed her children to fetch their friends and stay in the house.
MR KHANYILE: I learnt it even from her, she would mention that her children should be left alone, no one should touch them.
MR SAMUEL: Did the crowd follow you to Mr Qunqu's house?
MR KHANYILE: Yes, we all went there.
MR SAMUEL: What weapon did you have?
MR KHANYILE: I had a spear and a pipe.
MR SAMUEL: At what time did you reach the house?
MR KHANYILE: I am not in a position to tell exactly, but it was at night and people were already asleep by that time.
MR SAMUEL: When you got to the house, did anyone try and draw the attention of the people inside?
MR KHANYILE: The people I was with, were making a lot of noise, they actually called out to the people inside and told them to get out. That was at the time when we had already surrounded the house.
MR SAMUEL: Why did you want them outside?
MR KHANYILE: We wanted them to come out so that we could attack them.
MR SAMUEL: Did the people come outside?
MR KHANYILE: The first person who got out, was attacked and he fell on the ground.
MR KHANYILE: It was one of the friends from P Section, I do not know his name, but he died.
MR KHANYILE: I would not be in a position to tell, because there were too many people. There was chaos, it was not possible to tell who was attacking him and who was not.
MR SAMUEL: What did you do whilst you were outside the house?
MR KHANYILE: At that time, I saw a petrol bomb being thrown into a window.
MR SAMUEL: Who threw the petrol bomb?
MR SAMUEL: What happened after the petrol bomb was thrown?
MR KHANYILE: Qunqu came out of the door, he was hit on the head, but I did not see who attacked him. They realised that it was him, and they did not attack him further. He ran away.
CHAIRPERSON: Did he run back into the house?
MR KHANYILE: He ran away from the house.
CHAIRPERSON: You did nothing to preventing these people from hitting your cousin, Mr Qunqu?
MR KHANYILE: It was only realised after he had been hit once, that it was Mr Qunqu, that is why they did not attack him any further.
CHAIRPERSON: It didn't occur to you when you and your gang got there, to knock at the door and call for Mr Qunqu and talk to him and tell him?
MR KHANYILE: No, we did not think of it because we shouted and called out to these boys to come out.
CHAIRPERSON: Yes, you wanted them to come out so that you could attack them?
CHAIRPERSON: I am talking about you calling out Mr Qunqu and Mrs Qunqu?
MR KHANYILE: No, it did not occur to me at that time.
CHAIRPERSON: You know a grown up person like you who got on good terms with Mr Qunqu, I am surprised that this didn't occur to you?
MR KHANYILE: At that time, my mind was occupied by anger, because of the actions of these boys.
CHAIRPERSON: Well, I am still very, very surprised. I have difficulty understanding how an adult could behave that way.
MR KHANYILE: Yes, I regret that, it was a mistake.
CHAIRPERSON: Yes, do carry on.
MR SAMUEL: Thank you. After Mr Qunqu ran away, what happened thereafter?
MR KHANYILE: We kept on shouting, telling them to come out and they would not do so. Some would come towards the door and return back into the house.
MR SAMUEL: Did you do anything with the weapon you had on the day in question?
MR KHANYILE: Yes, as I was looking through the toilet window, I saw Mr Qunqu. I tried to stab at her, I pushed the spear through the window, she was far away from me. She got minor wounds from that.
CHAIRPERSON: You saw Mrs Qunqu through the toilet window, saw her there and tried to stab her with your spear?
CHAIRPERSON: What happened as a result, did you injure her?
MR KHANYILE: She sustained minor injuries on her back, because she was far. Therefore her injuries were not deep.
CHAIRPERSON: Are you concerned now about all the things now that he did, or what the others did as well?
MR SAMUEL: About what the others did as well, he was charged on many of these offences, with common purpose.
CHAIRPERSON: Besides trying to stab Mrs Qunqu, what else did he do?
MR KHANYILE: I didn't do anything else. The police arrived and we fled. First when the police came ...
MR SAMUEL: Before we got to that Mr Khanyile, you told us earlier that a petrol bomb was thrown at the house.
MR SAMUEL: Did that petrol bomb start a fire?
MR KHANYILE: Yes, the fire started from the dining room area.
MR SAMUEL: And did the fire become, grow and virtually destroy most of the house?
MR SAMUEL: Were there people in the house?
MR SAMUEL: Do you know if anyone was burnt to death?
MR KHANYILE: What I learnt after we were charged was that a woman and a certain girl had covered themselves with a wardrobe.
CHAIRPERSON: I don't understand that. They covered themselves with a wardrobe?
CHAIRPERSON: What does that mean?
MR KHANYILE: I think they got in.
CHAIRPERSON: They hid themselves in a wardrobe?
MR KHANYILE: Yes, I think they hid themselves in the wardrobe.
CHAIRPERSON: You learnt that a girl and a woman had hid themselves in a wardrobe, what happened?
MR KHANYILE: Those are the people who were found dead.
MR SAMUEL: How did they die, the girl and the lady?
MR KHANYILE: From what I heard, it was alleged that they died of smoke inhalation.
MR SAMUEL: So you were convicted of the murder of those two people as well as the murder of the person who ran out of the house and who was killed by some of the crowd?
MR SAMUEL: And then you were convicted of eleven counts of attempted murder of the people in the house?
MR KHANYILE: Yes, that is correct.
CHAIRPERSON: Do you have the names of the woman who were murdered, who was killed, and the girl who died, do we have their names?
MR KHANYILE: No, I do not know them.
ADV DE JAGER: We've got (indistinct) on page 19.
CHAIRPERSON: Oh, I see, page 19.
ADV DE JAGER: I am trying to find out about the woman and the child.
CHAIRPERSON: I am told that in the summary that is given to us, on the first page of this bundle, has the names.
There are some names given, Mr Samuel, you have that page in front of you?
CHAIRPERSON: Which of them is the lady that died, and which is the girl?
MR SAMUEL: I wasn't able to establish that with the applicant.
ADV DE JAGER: On page 26 the paragraph 12, the bodies of the deceased in counts 1 and 2, were found under the bed where they had been hiding. The Pathologist found the cause of death to be associated with burns.
And then the body of the deceased in count 3, was found at approximately 14H00, he had died as a result of multiple injuries. His body was found approximately 200 paces from the house. It seems as though counts 1 and 2, would relate to the woman and the child?
MR SAMUEL: That is correct sir.
ADV DE JAGER: Count 1 is Sevensani Sarafina Sikakane, and the other one in count 2, is Rejoice Mkhize? Did you know any of these people and could you recognise the names now?
MR KHANYILE: Tulagele was Mr Qunqu's sister - she was a daughter to Mr Qunqu's sister and the other one was a sister to Mrs Qunqu.
CHAIRPERSON: And presumably the other person that was killed, is the name mentioned in count 3, Tulasizewe Theophillus Nyembe?
CHAIRPERSON: Who else was injured apart from those that you have mentioned so far?
CHAIRPERSON: Yes, do carry on.
MR SAMUEL: Besides being convicted of these three counts of murder, you were also convicted of 12 counts of attempted murder of the people in the house, is that correct?
MR SAMUEL: And you were convicted of one count of arson relating to the house being burnt?
MR SAMUEL: As far as the murder charges were concerned, what sentences did you receive?
MR KHANYILE: Three death sentences.
MR SAMUEL: And as far as the attempted murder charges were concerned, did you receive eight years imprisonment on each count?
MR KHANYILE: I think that is correct.
MR SAMUEL: And five years relating to the arson charge?
MR SAMUEL: Was your sentence subsequently commuted?
CHAIRPERSON: Was your sentence subsequently commuted to life imprisonment?
MR KHANYILE: Yes that is what happened. Later on I received correspondence that it had been changed to 20 years.
MR SAMUEL: Just to clear this up, was your sentence commuted to life imprisonment or to 20 years initially?
MR KHANYILE: When it was first, when it was initially changed, it was commuted to life imprisonment.
MR SAMUEL: How many years of this sentence have you served?
MR KHANYILE: I have served nine years.
CHAIRPERSON: What happened to the other accused in this matter? There were eight of you altogether according to the charge sheet?
MR KHANYILE: Others were acquitted and we were sentenced, there were three of us who were sentenced.
MR SAMUEL: You had the opportunity of meeting the other two outside court today. In so far as accused 2, Sipho Ngwanyana is concerned, has he completed his sentence?
MR SAMUEL: And as far as Floyd Qaba is concerned, is he still in prison?
MR KHANYILE: Yes, he is in prison.
MR SAMUEL: These, for the record, these are accused 2 and 5 of the original criminal trial.
MR SAMUEL: What is Floyd Qaba's relationship to you?
MR KHANYILE: He is my stepson.
MR SAMUEL: He hasn't applied for amnesty, am I correct?
MR SAMUEL: What is the reason for him not applying for amnesty?
MR KHANYILE: I think that because we had applied for indemnity, and this was not granted. When the Truth Commission process started, he did not put in or he did not apply, I think because he had been disappointed before.
ADV DE JAGER: How long does he still have to serve?
MR KHANYILE: We are serving the same sentence.
CHAIRPERSON: Yes, do carry on.
MR SAMUEL: Thank you. Mr Khanyile, you have committed some very serious crimes against at least one child, many women?
MR KHANYILE: Yes, that is true.
MR SAMUEL: How do you explain your actions?
MR KHANYILE: It was a bad action, but I was pushed by those actions that were committed by UDF people, that is how I ended up committing such heinous acts.
CHAIRPERSON: But you must admit that even Mr Qunqu's son was murdered by Inkatha people?
MR KHANYILE: Yes, that is true.
CHAIRPERSON: And just as Inkatha people were attacked by ANC, there were many ANC people who must have been attacked by Inkatha people?
MR SAMUEL: If you had a chance to say anything to the family of the victims, what would you say?
MR KHANYILE: I do wish to meet them and humble myself before them, for that heinous act that I committed against them, when in fact I was their relative.
I feel very bad about it. My stay in prison, has helped me in that I have been able to reflect and think about everything that happened. I request, I actually plead for the grace of God. I wish to beg for forgiveness.
CHAIRPERSON: Is it correct, coming from the indictment, that none of Mr Qunqu's sons were attacked or were victims of this attack? I don't see their names in the indictment?
MR KHANYILE: None of Qunqu's sons were injured or killed.
ADV SIGODI: Sorry isn't Mr Qunqu's surname Qunqu Mkhize? What surname was he using, was he using Qunqu or was he using Mkhize?
MR KHANYILE: He was using the surname Qunqu, but on his ID document, it is Mkhize that is reflected there.
CHAIRPERSON: In count 4, one of the attempted murder victims' name is given as Christopher Zinzele Qunqu, do you know him?
MR KHANYILE: Christopher Zinzele? No, I do not know him.
ADV DE JAGER: Do you know Qondi Allan Mkhize?
MR KHANYILE: Yes, that is Mrs Qunqu.
ADV SIGODI: Isn't it a male's name, Qondi Allan Mkhize?
INTERPRETER: Please repeat the question.
ADV SIGODI: If he is saying that Qondi Allan Mkhize is Mrs Qunqu, or is Qunqu's wife, isn't Qondi Allan a male name?
MR KHANYILE: I don't know whether I am mistaken, whether it is Qunqu himself, I am not sure.
MR SAMUEL: Maybe this will help, count 16 relates to the arson charge and the house, the property in question is said to belong to Qondi Allan Mkhize.
CHAIRPERSON: It is his property?
MR KHANYILE: Then it means that Qondi must be Mr Qunqu himself.
CHAIRPERSON: In count 16 it talks about Qondi Allan Mkhize in his property, so it must be a male?
MR KHANYILE: Yes, that means it must be Mr Qunqu.
CHAIRPERSON: Is there anything else you wish to ask?
MR SAMUEL: No, thank you Honourable Chairperson.
NO FURTHER QUESTIONS BY MR SAMUEL
CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson. Mr Khanyile, you stated that you couldn't remember Christopher Qunqu. I know this incident took place a very long time ago, perhaps I can just refresh your memory, he in fact testified at the trial. He said that you had tried to stab him?
MR KHANYILE: Yes, I remember him now.
MS PATEL: Do you remember that you tried to stab him as well?
MS PATEL: Okay. If I can just take you back to - sorry before I do that, is he one of the sons?
MS PATEL: As far as you can recollect, is he the only one of the sons who was present that night at the house, at Mr Qunqu's house?
MR KHANYILE: I would not know whether he was the only one present, because most of the people did not come out of the house, there were people inside the house who did not come out.
MS PATEL: Okay, the activities that the Qunqu boys were involved in, were they criminal activities as well?
MR KHANYILE: Yes, there were criminal activities that they were involved in.
CHAIRPERSON: Just to be clear in his mind, non political criminal activities?
MS PATEL: That is correct. These criminal activities didn't relate to their political affiliation, did it?
MS PATEL: Okay, can you just briefly explain or elaborate on that, was there rape and robbery matters that they were involved in?
MR KHANYILE: They were involved in rapes, they would also rob people. Sometimes they would rob children for cash if sometimes you send your child to the shop, they would rob them of that money. Even if you send them to pick up laundry, they would rob them of those clothes, they were involved in a lot of criminal activities.
MS PATEL: So, besides their political affiliation, they generally terrorised the entire community not so, from what you say?
CHAIRPERSON: Terrorised might have a political connectation, doesn't it? (Microphone not on)
MS PATEL: No, not at all Honourable Chairperson.
MR KHANYILE: They were involved in a lot of criminal activities, they would terrorist the community at that level, and they would also terrorise IFP members.
And they would also rob people at night, they will rob IFP people as well.
CHAIRPERSON: Yes, in other words they committed their crimes not only against IFP people, but just against the community at large?
MR KHANYILE: Yes, that is correct.
MS PATEL: The incident that took place at Magubane's place, the party, you can't say for sure exactly what the problem was that evening, that could have related to a purely criminal action as well, not so?
MR KHANYILE: It could have been criminal, but the other factor was also that this person belonged to the IFP and they were out to attack IFP members. So it could be both factors involved.
MS PATEL: But they were invited to this party, not so as part of the membership to the soccer team that Mr Magubane was in charge of?
MS PATEL: I put it to you then that it is more probable that the problem that had arisen at the home of Magubane that evening, had nothing to do with the party's political affiliation.
MR KHANYILE: Yes, I can concede that it may have had nothing to do with politics, but on the following day, when they attacked Magubane, they did this because he was an IFP member, who should be killed.
It was no longer for the reason that there have been this quarrel on the previous day, because even on this previous day, they are the ones who started trouble after Magubane had actually invited them. That is why Mr Magubane ended up chasing them, driving them away.
They returned on the following day and attacked him. They were armed at that point.
CHAIRPERSON: Didn't Magubane kill one of the Qunqu boys before that? The boy called Black?
MR KHANYILE: He killed that boy on that day when they attacked him, and he was trying to protect himself when he actually stabbed that one boy.
CHAIRPERSON: As a revenge for that, the boys then came and killed him?
MS PATEL: Thank you Honourable Chairperson. You stated that you only waited two weeks before you planned this attack, two weeks after the death of Mr Magubane, before you planned this attack on Mr Qunqu's home.
MR KHANYILE: Yes, that is what happened.
MS PATEL: That is a very short period sir, in fact the police ...
CHAIRPERSON: How long should he have waited?
MS PATEL: Well, given the way the police worked, probably a year at least.
CHAIRPERSON: The Qunqu boy was killed, nothing happened. Magubane was killed, nothing happened. The police didn't seem to take any action.
MR KHANYILE: Yes, that is correct.
MS PATEL: Do I understand you correctly then, the reason you took the law into your own hands and you decided to embark on this action, was simply because the police were taking too long? That was your main reason, not so?
MS PATEL: And you embarked on this action, regardless of who would be killed in the process and who would be injured?
MR KHANYILE: I mentioned previously that when you are angry, your mind does not function as it should. You actually can liken yourself to a mad person.
MS PATEL: Was there nobody else at the meeting who had then suggested at least that you try to corner these boys alone, separately rather than go to the house where other innocent people could possibly be injured, because you had to gripe with the father or with the rest of the people in the house? Your problem was with the boys?
MR KHANYILE: Nobody came up with that suggestion.
CHAIRPERSON: Is it quite correct that all the people that were killed or injured, were people against whom you had no grievances, is that correct?
MR KHANYILE: There is only one person with whom we had problems, who died.
MS PATEL: Who is the person with whom you had problems, who died?
MR KHANYILE: It is the male person who actually went out of the door and he was hacked.
CHAIRPERSON: Except for Theophillus Nyembe Tulasizewe?
MS PATEL: But he wasn't one of the sons, was he?
CHAIRPERSON: You didn't even know him?
MR KHANYILE: No, I did not know him.
MS PATEL: In fact, the two females who were killed, were your cousins as well, not so?
MR KHANYILE: Yes, they were my relatives.
MS PATEL: How did you think that you were going to achieve your objective, your political objective by killing these people?
MR KHANYILE: These people died because of those boys, that is they got effected because they were in the presence, they stayed together in the same house as these boys.
If Mrs Qunqu had not allowed these boys to reside at her home, no one would have attacked their home. All of this would not have happened.
CHAIRPERSON: But none of these boys were residing in her home? None of them were found on the night when you attacked, and indiscriminately hurt people most of whom were females?
MR KHANYILE: I would not oppose that, because there were many people in the house and many of them did not come out.
CHAIRPERSON: None of them came out, except the one boy and Mr Qunqu?
CHAIRPERSON: Any further questions?
MS PATEL: No thank you Honourable Chairperson.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Any re-examination Mr Samuel?
RE-EXAMINATION BY MR SAMUEL: Thank you Honourable Chairperson. You said of the people that was injured or killed that night, you had a problem with one person and the Honourable Chairperson read the name out to you, you said you didn't know him? What do you mean you had a problem with him?
MR KHANYILE: I had a problem with him because he was one of the UDF people.
CHAIRPERSON: I thought you said you didn't even know him, so how could you say he was a UDF man?
MR KHANYILE: All the boys that would be at that house, would be UDF members who had been fetched by Mr Qunqu's boys.
CHAIRPERSON: That night when there was this boy, Theophillus, you don't know whether he was brought by the Qunqu boys or how he got there, and you don't even know him.
MR KHANYILE: There had already been that talk that they were present in the house.
CHAIRPERSON: Yes, do carry on.
MR SAMUEL: Did you see how many people emerged from the house when the police got there?
MR KHANYILE: No, we had already fled by that time.
I only heard about it in court that there were 17 people in the house.
MR SAMUEL: I have no further questions.
NO FURTHER QUESTIONS BY MR SAMUEL
CHAIRPERSON: Are you calling any other witnesses?
MR SAMUEL: No Honourable Chairperson.
MR KHANYILE: I can only say that I feel terrible pain for what happened and for what I did. I do not know how to overcome this pain. Maybe this can only be overcome by meeting the people from the Qunqu family.
I think I can only deal with that pain when I meet them finally.
CHAIRPERSON: We must try and arrange that at a convenient time. Are you calling any witnesses?
MS PATEL: No, I am not Honourable Chairperson. Just to respond to Mr Khanyile's request or hope that he would be able to overcome his pain by meeting the family, I might just say that the family members had left the area subsequent to this incident, and can't be located. I cannot assist in that regard.
ADV DE JAGER: Do you know perhaps where Mr Qunqu is at present?
CHAIRPERSON: Yes Mr Samuel, do you wish to address us?
MR SAMUEL IN ARGUMENT: Thank you Honourable Chairperson and members of the Committee.
Mr Khanyile in his own words described the crime as a heinous crime. The victims of this crime, were women, at least one child, most of them must have been innocent of any implications and any wrongdoing in the area and one can understand why Mr Khanyile feels the pain in his heart right now. The victims were innocent people.
However, one must understand the context in which his actions were taken. Mr Khanyile is a senior person, he is an adult, he was a member of the IFP and it seems that a group of people, youngsters had infiltrated this area, and to an extent it may well be that they were criminals hiding under the mask of the UDF.
During those days, as the Committee members well know, and if my memory serves me correctly, there may have been the state of emergency that was imposed in those areas during that time.
It was difficult for organisations to actually seek accountability and it may well be that the criminal element called themselves the UDF and were carrying out some sort of reign of terror over this area which was peaceful for a number of years, at least 18 or 17 years, that Mr Khanyile lived.
In response to this and arising out of the death of their leader, Mr Magubane, the IFP had a meeting and decided to carry out certain acts directed at the Qunqu house, in which they felt was the haven for these people.
CHAIRPERSON: This was a revenge attack?
MR SAMUEL: It could, it must have had an element of revenge, but it was also a way of ridding their community of the influence, ridding the community of the intruders in that area.
ADV DE JAGER: Let's assume they have succeeded in ridding the community of a gang of criminals, would that help us in this application?
MR SAMUEL: Well, there are two things that one need to consider for the purposes of the sitting of this Committee, one is that these criminals were hiding under the banner of the UDF, so the purpose must have been ...
ADV DE JAGER: Isn't it only a fact that every party in the country, whether it is the New Nationalist Party or the old Nationalist Party or the PFP or the ANC or the UDF or IFP, they must have members in their bodies who are in fact criminals, it is not a qualification, and you wouldn't even know whether you have a criminal in your party?
MR SAMUEL: That is absolutely true. No organisation can say it has all saints in their organisation, but the situation was that the actions even if they were criminals, it was an action taken by the IFP community to rid itself of criminals which the police themselves were not taking any steps to get rid of.
Given the situation, the situation of the state of emergency and the lack of delivery in the black areas, especially the African areas, the lack of delivery by the police in terms of policing, in terms of protecting the community, once that action was taken to get rid of the community, of these criminal elements, it is my belief it is a political action.
It is not important to draw the distinction whether there were in fact UDF or criminal element, but I think what is important is that their party sanctioned action being taken against these elements.
Unfortunately lots of innocent people suffered here. One can with respect see no difference between an action like Mr Khanyile and his group did take against the Qunqu household, as opposed to a person who takes a bomb and puts it in a crowded supermarket or a person who fires indiscriminately at a bus or train.
All those are political actions in which the innocent victims are neglected. To that extent, the actions of Mr Khanyile is with respect, a political action.
CHAIRPERSON: One of the tests is proportionality, isn't it? The heinousness of the crime they commit in relation to what is expected to be achieved. Whether their conduct was totally disproportionate to what was intended to be achieved, whether that is so, then they fall short of getting amnesty.
As I understand your argument, they took the law into their own hands, simply because the police were not doing anything about avenging the killing of Magubane, of arresting the murderer of Magubane.
MR SAMUEL: No Honourable Chairperson, that wasn't my argument. In fact it goes beyond that. In fact that was the answer Mr Khanyile gave to a very leading question by my learned colleague, but he had indicated that he lived in a peaceful area and for three years prior to this incident, the area was destabilised.
CHAIRPERSON: Yes, criminal activities in the area?
MR SAMUEL: He described it as UDF activities, directed against Inkatha. It may well be criminal activity and because the entire area was IFP, it may have been viewed as an attack against the IFP people.
Effectively it was more than just avenging the death of Mr Magubane, it was to get rid of this element in their midst, who had come in their area and destabilised the entire area. This area was peaceful for a number of years, 18 years.
ADV DE JAGER: Sorry, and then we've got a gang coming in, raping women, robbing people coming from the dry cleaners, taking their clothes, I can understand what they did, but could that be, could even the deeds of the gangsters been constructed as political?
CHAIRPERSON: Surely that is not that, it is just ordinary criminal?
MR SAMUEL: Well as I said Honourable Chairperson and esteemed members, these criminals were hiding behind their political tag and whether or not they were really UDF, doesn't matter, but they were projecting an image that they were UDF people.
They were directing their violence and crime against the community which was largely IFP.
CHAIRPERSON: They were directing their crimes against the community, whether largely IFP, they drew no distinction. If criminals want to rob and steal, they will rob and steal from whoever it is. They don't ask you what political party do you belong to and then steal from him.
MR SAMUEL: Honourable Chairperson, in retrospect us sitting here today, can very easily draw that distinction, but could that distinction be drawn in the emotive times of 1987 when one read in the newspaper on a daily basis, so many dozen IFP people were being killed and so many dozen ANC people being killed, and the targets of these crimes, were IFP people.
Could one draw the distinction and say these were criminals as opposed to being UDF people? Bearing in mind that during that period, information was censored. Political discussion was censored. There was no freedom of speech. The community itself couldn't stand up and freely speak.
Even at the IFP meetings, when they suggested that they go and attack this house, there was not one dissenting voice. That was the mood of the times.
CHAIRPERSON: (Microphone not on) Here were people under the leadership of the applicant, a cousin of Mr Qunqu, who is a relative of his, they go there to attack the Qunqu boys and their friends, he doesn't knock at the door and tell Mr Qunqu please tell your sons to come out of the house, please tell all the thugs to come out of your house, we don't want to harm the women and the children, please. Nothing of the kind, total disregard of who may be in the house.
I have great difficulty in coming, in being persuaded that that kind of conduct which is reckless, can be described as political.
MR SAMUEL: Honourable Chairperson, it is indeed reckless conduct and it is indeed relevant that the house which they attacked, was their cousin's house. Now, if at any level one has to go into the mind of Mr Khanyile at that stage, one must look at the fact that he was the one who was sitting and having beer on New Year's Day with Mr Qunqu, they had that kind of relationship.
He must have been, for him to have gone to a point where he reaches such state of recklessness, that he didn't worry about this person whom he was a friend with, whom he was a relative of, whom he had beers regularly with, he must have been driven to a point where he couldn't even take these human feelings into account, and one must judge him in that light, in the sense that it easily could have been, this could easily be explained by his level of political - desire for political action against these people.
CHAIRPERSON: There is no suggestion that Mrs Qunqu was a politician, understand? This is her house, she is a mother of a number of children. Children's friends come into the house.
He stabs Mrs Qunqu with a spear in her bathroom, because she allows her sons to bring their friends into the house, what kind of a person can that be?
MR SAMUEL: Mr Khanyile has made efforts to speak to Mr Qunqu about even changing his house. In it there is a recognition that action was going to be taken against these people.
Action was going to be directed against these people. He asked Mr Qunqu to swop houses with someone from kwaMashu. He says from his knowledge and discussions with Mrs Qunqu, she was the one who was encouraging these people, these boys to come into the house, and without the permission of Mrs Qunqu, it is unlikely that the boys would have been able to bring these other people into the house.
ADV SIGODI: Can it not be argued that without the permission of Mr Qunqu as well, that the children would not have been able to bring the friends to the house? Mr Qunqu also had a role to play as a parent?
MR SAMUEL: Save to say that Mr Qunqu himself said that he was fed up with the boys and that he couldn't control them, that was his evidence.
ADV SIGODI: It could be argued that Mrs Qunqu herself was fed up?
MR SAMUEL: I agree with you fully, it could be.
CHAIRPERSON: She may have had no control over the boys.
MR SAMUEL: It seems quite likely that, if they are what the evidence suggest they were, they would have absolutely no control, the parents would have no control over them, but what is important is what did Mr Khanyile and the other members of the community perceive Mrs Qunqu's role to be.
CHAIRPERSON: It is just a question of whether that was a correct perception, understand? You know in the community today, youngsters pay no attention to adults? To blame the mother for saying now you are liable, you are responsible because your sons have got bad friends or whatever it is, but I can't conceive of a sensible man actually going there with a spear, he is just lucky that she wasn't injured badly, to stab her with a spear, Mrs Qunqu the wife of his cousin?
I find that unacceptable. I do not know how you are going to persuade me to say that that was political conduct on his part?
MR SAMUEL: Save to the extent that his humanity must have taken a big dent after seeing his friend and his IFP leader, laying in his house with his throat cut off and white stuff coming from there. I mean if one experiences that kind of terror or that kind of pain, perhaps one's humanity is dented to such an extent that it is easier to become reckless and easier not to take, to become irrational.
ADV DE JAGER: Yes, we don't blame him in the sense of, we are not concerned about blaming him or saying well, he had done this or that, we are concerned about the question of whether it was political or whether it was a revenge because they killed my friend.
MR SAMUEL: I am saying with the greatest of respect, that the action was political, because it was planned by a political meeting, the perception in the community was that these people were UDF people, they were responsible for the crimes against the IFP people.
There were three deaths, they didn't do it after the first death. There were three deaths in approximately two years and the final nail in the coffin for them, was the fact that the leader was killed.
CHAIRPERSON: There is no evidence about how many ANC people were killed during that time, is there? That is the trouble, all you have is a version of who his friends were that were killed. We must take it for granted that if there was killing, there was killing on both sides.
MR SAMUEL: I fully agree and the newspapers will show that there were supporters of both political organisations, killed in these areas.
I do not, I hold no brief for the IFP, my representation is purely for Mr Khanyile and I am saying that if one looks at his actions in terms of what the community went through at that stage, his actions must be deemed political.
I am saying that if one looks at his actions in the light of other people who had committed crimes of a political nature, if a person, some person planted a bomb under a bus, or a bomb near a restaurant, etc, those people are with respect, equally reckless to the loss of innocent lives, as Mr Khanyile was at that time.
MS PATEL IN ARGUMENT: Thank you Honourable Chairperson, I am not certain that it is actually necessary for me to address you, except to state just for the record that it is my respectful submission that the applicant hasn't complied with the requirements of the Act, that there is no political motive from his conduct, and that his application ought to be denied.
CHAIRPERSON: (Microphone not on) The Committee will consider its decision and make it known in due course. Thank you very much. We are adjourned now and what is the position tomorrow morning, what time do we commence tomorrow morning?
MS PATEL: At 09H15 Honourable Chairperson, with the Ngubane matter.