Amnesty Hearing

Starting Date 09 February 1999
Day 6
Case Number AM7154/97
Original File

MR SHANE: Mr Chairman, before you are two affidavits which were put on your desk, it is affidavits of a certain Penwell Nkosi and an affidavit of Vicor Jeremiah Mngomezulu. These affidavits are before you Mr Chairman, in response to the affidavit of Sotole Khanyile and others, which was placed before you yesterday.

I think that deals with that matter of the opposition to, and Mr Chairman, I have one more affidavit which I have in front of me. If I could hand them up, unfortunately they were written in my hand, I didn't get a chance to have them typed, Mr Chairman, but they have been attested to.

It is also in regard to the same opposition to the amnesty application of Mngomezulu and Mbatha, relating to the death of Bekhi Khanyile.

These affidavits have also been handed to the Attorney for the family of Bekhi Khanyile and to Mr Steenkamp.

MR SHANE: Mr Chairman, are we ready to proceed with the next applicant? The next applicant is Molefe Michael Selepe.

His application is on page 1118 to 124. He doesn't have an ID and he doesn't know his number, he doesn't have his identity document, he doesn't have an ID number.

CHAIRPERSON: Didn't you tell him to bring it?

MR SHANE: Mr Chairman, he is in prison, he doesn't have it in prison either.

CHAIRPERSON: Mr Selepe, what language would you choose to use?

ADV STEENKAMP: Mr Chairman, if I may be of any help, I would get the prison records, and because if there is previous convictions, there will be fingerprint records, I will make sure that you get that.

CHAIRPERSON: What language would you prefer to use?

MR SELEPE: I will use English.

CHAIRPERSON: Are you sure?

MR SHANE: May I just have a word with him Mr Chairman, on this?

MR SELEPE: Yes, I will use in English, if I don't understand properly, I will use the interpretation.

CHAIRPERSON: Of what, Zulu, Xhosa, Sotho?


CHAIRPERSON: I suggest the language that you are most comfortable in, which one would that be?

MR SELEPE: Sotho, Southern Sotho.




EXAMINATION BY MR SHANE: Before we proceed with the actual acts for which you seek amnesty and before we deal with the affidavits that are before this Commission, can you please go through your political credentials, in other words, can you explain from the beginning of your life, when you became involved in politics, up until now?

MR SELEPE: Thank you. Basically I was the member of COSAS during 1983 ...

CHAIRPERSON: Mr Selepe what language are you going to talk now, you cannot talk both languages. Either it is interpreted into Southern Sotho or you stick to English.

MR SELEPE: I will rather use Sotho.

CHAIRPERSON: Yes. I want to point out to you too, Mr Selepe, that you are now under oath, you are on your own. Your Attorney will lead you, which he is entitled to do, and object to any matters that may prejudice you, but you can't seek his advice every time a question is asked. Do you understand that? To that extent, you are on your own now. Please proceed.

MR SELEPE: I was a member of COSAS, which is a student wing. I was also a member of ERAPO, East Rand Peoples' Organisation. During those years, that is in 1985, COSAS was banned.

As I was a member of the Executive Committee in COSAS, many members were detained. I had to leave school and leave my area, the community where I lived. Then I left school. I went to hiding. At that time, I was staying in Tokoza, but I was attending school at Letutula Secondary School. I looked for employment. In the township I was a member of Tokoza Youth Congress as from 1987, 1988.

I was compelled to look for employment as to support my family. I found employment at Early Bird TV Services. Whilst I was working there at Early Bird, I was detained by members of the Security Branch. It was during the time of the state of emergency.

After I was released, I was restricted. I was confined to my house, so that I should not roam around in the township without notifying the police. I was not supposed to be amongst people who were more than three, unless it was at church or members of my family.

Before I leave Tokoza township, if I go to my relatives or wherever I go, I've got to give them an address of where I will be going, and the telephone numbers of the place I was visiting. They would verify before I leave.

That happened for a month. After that, I defied those restrictive orders. I didn't go to the police station to sign weekly. I defied those orders and moved freely.

From 1988 up to 1989, it happened that whilst I was in Early Bird TV Services, members of the Security Branch went there to bribe my girlfriend so that she will lay a charge of rape.

I was prosecuted for rape. On the final day in court, she exposed the members of the Security Branch that they bribed her, and that she was lying, that she must lay a charge, therefore I was acquitted by Magistrate Van Wyk in Germiston.

When I returned to Early Bird where I was working, my employer told me that because I was arrested for rape, I am working with female employees, therefore they terminated my services. I worked in the township with Tokoza Youth Congress. I was a member of Tokoza Civic Association at that time.

I was taken by Bishop of the Anglican Church, who is Bishop Mokoene. Because I did not have a steady place to stay and was not able to stay with my family, he got a scholarship from Britain so that I should go and further my studies there.

I stayed with him in Benoni, I was working as a driver and as a field worker in the church until he died.

CHAIRPERSON: Mr Selepe, were you a member of the Self Defence Unit in Tokoza?

MR SELEPE: Yes, I became a member of the SDU.

CHAIRPERSON: Now tell us when and how that happened.

MR SELEPE: I started to be a member of the Self Defence Unit when the war started in 1990 in Tokoza. After the Bishop died, I returned to the township.

MR SIBANYONI: We are interested to hear about your SDU activities, not the lengthy historical background of your political background.

MR SELEPE: I started to be a member of the SDU in 1990. As I was a Media Officer of the Youth League in Tokoza, there was a meeting because the war had started between hostel dwellers and the residents of Phola Park. At the time the war started, it wasn't clear that it was a fight between the ANC and the IFP.

Everybody observed that as a fight between Zulu's and Xhosa's. On that meeting of the ANC Youth League, they said that amongst the members of the ANC Youth League and I was also the Chairperson of the Slovo Section, that we must form Self Defence Units.

The issue was referred to members of Umkhonto weSizwe. The members of MK adopted me in that particular structure, which would form the Self Defence Units in all the sections.

After the formation of those structures, we held elections for various positions within the Units, because at that time, members of the leadership of the ANC or members of the Executive in Slovo Section, people like Thabi Penqe, Vusi Sibeko, were attacked in their houses, and then I was left alone.

People like Sam Ntuli, Dan Pumselo Mbatha and Tshabalala have already died at that time. That is where we formulated the SDU structures. Those people who were near the hostels, came to our sections and at times, they were threatened to join the IFP.

There were activities which I did with the SDUs until I was arrested in 1992, around September or October, I don't remember well. After I was detained, I stayed in detention for some months. In 1993, I learnt about what was happening in the township, especially in my particular Section.

Those three months which I stayed in detention, six people or seven people, were killed by Bishop Khumalo's gang, who is a member of the IFP. I was forced to get out of prison, because I was never granted bail.

I was able to escape from prison for the first time.

MR SHANE: Mr Selepe, so from what you have said about your political credentials, it can be accepted that not only were you a member of the SDU, but you played a major role in the formation of SDUs?

MR SELEPE: Yes, that is so, that is correct.

MR SHANE: Right, now that has explained your actual political activities. When you made application for amnesty on the 10th of May last year, not last year, 1997, where were you?

MR SELEPE: In 1997 I was in prison without bail, that is Boksburg prison.

MR SHANE: At that time, you were awaiting trial?

MR SELEPE: Yes, that is correct.

MR SHANE: On that day, explain how it came about that being in prison you managed to sign an application or applications for amnesty.

MR SELEPE: A certain comrade called Duma Nkosi came, he was together with a certain person, who is not known to me. MR SHANE: That person who is not known to you, have you now found out that that person is Mr George Ndlozi an official from the TRC?

MR SELEPE: Yes, I knew later that he was working for the TRC.

MR SHANE: And who was Duma Nkosi to you, what was he to you?

MR SELEPE: Duma Nkosi was the person I was working with in the township and now he is a member of parliament.

MR SHANE: Yes. And can you explain what happened on that day, can you remember what did you tell him you want to apply for amnesty for?

MR SELEPE: Yes, I told him on that day that I want to apply for all offences which I will be prosecuted for and other acts, which were not known and I did.

CHAIRPERSON: Did you tell him which acts or offences you thought you would be prosecuted for?

MR SELEPE: If I remember well, ...

CHAIRPERSON: I am not asking you if you can list them, I am just asking did you tell him what those offences were?

MR SELEPE: Yes, it seems I did.

CHAIRPERSON: Then on a particular day, I assume it is the same day, you signed it?

INTERPRETER: May you please repeat the question?

CHAIRPERSON: You signed that document on that day?

MR SELEPE: If I am not mistaken, yes, I signed.

MR SHANE: Right.

CHAIRPERSON: You seem to speak English quite well, can you read it? Can you read English?

MR SELEPE: Yes, though not efficient. I am able, but not that efficient.

CHAIRPERSON: Now when you signed the document, did you read it before you signed it?

MR SELEPE: Yes, if I am not mistaken, I read it before I signed it.

CHAIRPERSON: Were you satisfied that the offences which you refer to as your instruction, was properly set out in the application form before you signed it?

MR SELEPE: Even though I don't remember the content of that document, I remember that there was a document. I remember signing, but I don't remember as to whether I did read that document before.

CHAIRPERSON: You have just told me you did? Make up your mind.

MR SELEPE: Because it has happened for a long time, I think it is two or three years back ...

CHAIRPERSON: No look, we are not going to play games about time here now, before you signed that document, you were satisfied that it was correctly filled in, not so?

MR SELEPE: Yes, I was satisfied.

MR SHANE: Sorry Mr Chairman, at this juncture, I must just place on record that what is now being said, is totally contradictory to the instructions that I took. It is not according to the instructions that I took in a lengthy consultation with this applicant.

CHAIRPERSON: Mr Shane, you have made your point. I don't know what you want to do about it. You can decide what you want to do about it.

MR SHANE: Can I have some time to consider what I am going to do about it Mr Chairman, please? I see it is passed one o'clock, maybe it is an opportune time to take the lunch adjournment.

CHAIRPERSON: Mr Selepe, your Attorney has informed me that you have deviated from your instructions to him. I don't know what he intends to do about it, but it may be possible that you may not have his services for much longer, as a result.

You are going to have to decide what you want to do about that matter as well. Do you understand?

MR SELEPE: Yes, I do.

CHAIRPERSON: Mr Shane, you have requested an opportunity to consider your opportunity?

MR SHANE: Correct Mr Chairman.

CHAIRPERSON: I trust that that would not include a consultation with your client?

MR SHANE: That is, you have my word, I just want to point one thing out Mr Chairman, I just possibly, maybe I can do so in the presence of Mr Steenkamp, but it is possible Mr Chairman, that he is misunderstanding because I was expecting to lead the applicant on this, but the discrepancy has emanated from questions from yourself Mr Chairman.

I just want to, and it is on this point, and I hope I could clear it up, it might need a consultation, but like I say Mr Chairman, if it can be done in front of Mr Steenkamp, otherwise I won't consult, but I am thinking to get around ...

CHAIRPERSON: Mr Shane, I think you are putting the cart before the horse. You have informed me that there is a problem with your instructions. I in my experience, expect certain things to occur.

If you want time to consider your position, I am going to give you time, but I don't know whether you can rectify the problem. I don't know if you follow me.

MR SHANE: I follow Mr Chairman.

CHAIRPERSON: So I am going to adjourn for lunch and you can consider your position. I have made my feelings on the issue, clear and you are aware of my comments.


MR SHANE: Mr Chairman, in the circumstances, I beg leave to withdraw.

CHAIRPERSON: Yes, in the circumstances, I think it is wise to do so. Mr Shane, you are excused from this application.

I just want to raise certain other issues with you afterwards. Mr Selepe, it is unfortunate that your Attorney has to withdraw in your application. I am going to postpone this application to next Tuesday. I am aware that you are in prison and it would be a little more difficult than would otherwise be the case, to obtain the services and assistance of another Attorney.

That is why I am going to postpone this matter to next Tuesday so that you can use this afternoon and the rest of this week, in an attempt to acquire the services of an Attorney and do so in time, such that he can consult with you properly, and prepare for your application. Do you understand that?

MR SELEPE: Yes, I do understand.

CHAIRPERSON: Is there anything that you want to ask me?

MR SELEPE: No, there is nothing else at the moment.

CHAIRPERSON: Okay, then you are also excused.


CHAIRPERSON: Mr Shane, you asked me a little while ago about arguing at the end of the evidence and I indicated to you that we would make request to you in matters that we were uncomfortable with, where there were clear cases, we wouldn't need arguments on now and the one that does give us a problem, is the one of Thami Mahlala.

I don't think it was yours.

MR SHANE: Indeed not sir.

CHAIRPERSON: Did you appear for Mr Makondo?

MR SHANE: Correct Mr Chairman, Jimmy Mkosinathi Makondo.

CHAIRPERSON: He is the one that said that he in fact, his actions at the time, were designed to defend himself, can you remember?

MR SHANE: Correct, he said his actions were designed, there were three vans and some of his actions were designed to defend himself, but the shooting of the white policeman in I think a kombi vehicle, was he said, to kill them so that he could get their weapons.

CHAIRPERSON: That is why I raise it with you, that is not how I understood his evidence. I understood his evidence that he started to run away and he saw them chasing.

Then he turned to retaliate in an effort to defend himself, that was his sole reason for shooting at those police, that is what he testified?

MR SHANE: Mr Chairman, he also testified that he wanted, he shot the white policemen with the view to killing them, so that he could get their weapons. That is before you with respect, sir.

CHAIRPERSON: Mr Shane, he went further at one stage of his evidence and said I knew I shot at them, because I knew they would take me to the hostel and do something to me. Do you recall he said something like that?

On another occasion, during his evidence, then it changed somewhat, and yes, he did say that he wanted to obtain the weapons. We have a problem with that also because he was dealing with three motor vehicles and a number of people, that he was taking on single handedly. How did he even hope to win that battle, never mind obtain the arms?

I need you to argue and persuade us that he has in fact made full disclosure there, if we accept that he wanted to obtain their firearms. On the other hand, if he wanted to shoot the white policemen to defend himself, then what political motive would he have had to shoot him?

MR SHANE: If that was the case Mr Chairman, then he is relying on the defence, he should not be applying for amnesty where he's got a defence to a crime.

CHAIRPERSON: I am not questioning his right to apply. I am saying if his actions were, if what he did, was committed in self defence, and that was his intention, you've got to persuade us that he has complied with the Act which requires his actions to be based on a political motive. Self defence in our view, is not a political motive because he could justifiably be found not guilty.

MR SHANE: Mr Chairman, he would also not only have to show that and show full disclosure, there is something that

you mentioned about you not being satisfied that he had made full disclosure. I didn't get the whole picture of that Mr Chairman.

CHAIRPERSON: We have to consider the other version, and note that there are two versions that he gave, on that score as to why he shot at the police. Could we believe him to put it crudely if he wanted to obtain these firearms, to take on more than six policemen alone? Six armed policemen?

In that case, has he then made full disclosure? On two scores, he has given us two versions. The other version is the probabilities of a single man, trying to disarm at least six policemen of their firearms. Would you like to argue on that?

MR SHANE: If I may ask Mr Chairman, I would like to just prepare myself, if I could possibly argue it possibly tomorrow if that is possible Mr Chairman. Nine o'clock if it suits you sir? Thank you Mr Chairman.

CHAIRPERSON: Is Mr Sibeko, is he here?

MR SHANE: I saw him, he could be outside Mr Chairman. Mr Chairman, is that the only matter that I am to argue tomorrow on, thank you sir?

CHAIRPERSON: ... indicated to Mr Shane, we have no problems with most of the applications at this stage, and I indicated that I would ask the various representatives to address us on issues that gave us problems. In the Madlala matter in which you appeared, we really have a problem with that whole application, in particular whether full disclosure was made, for example whether this was not an escapade in burglary and nothing more and what was the political motive?

Our attention had been drawn to the fact that there seems to be a connection between the applicant and his colleagues and burglary at the house near the spot where they were found, and of course, the murder and the attempted murder becomes particularly a focal issue when one considers the question of political motive.

I am not too sure whether all the offences for which application is made, is effected by our concerns and maybe you can pay attention to each offence in respect of our concerns.

We think of perhaps also the attempted escape, it really doesn't make sense to us. Maybe you can persuade us that it should make sense. Perhaps the armed robbery was something that was done with a political motive, on the other hand it may be related to some kind of organised crime. We need you to attend to that.

Then I understand that you are in close contact with Ms Nhlayisi.

MR SIBEKO: That is correct so Mr Chairman.

CHAIRPERSON: There is a matter in which she appeared for Mr Joseph Motshwene. The big question here is, in her case, Mr Motshwene has made application for amnesty in respect of attempted murder of a teacher or teachers and the unlawful possession of a firearm and associated ammunition.

We have no problem with the unlawful possession of the firearm and ammunition, it is this attempted murder, shooting blindly at a teacher and a principal in a school yard, for what political purpose would that have been? He says he couldn't identify the people, but yet he shoots at them?

Somewhere one is uncomfortable with also the possibility of him not making full disclosure about exactly what occurred there. His evidence was really bland and I think at one time, he even resorted to amnesia, because of the passage of time. Those issues give us problems, and those are the only cases that we need argued. Would tomorrow suit you? We want to give judgement tomorrow in most of the matters. No, not tomorrow, Thursday.

MR SIBEKO: Mr Chairman, on my side, I will be available for argument.

CHAIRPERSON: Okay, we will be here nine o'clock, Mr Shane has undertaken to be here nine o'clock. If you can ask Ms Nhlayisi or inform her of the position. Depending on how long you people decide to argue, we won't be long. We want to adjourn and consider the issues and hopefully give decisions in as many of the matters, on Thursday, as we can.

Mr Steenkamp, how possible is it for us to get a comprehensive list of victims and perhaps their addresses, etc tomorrow or Thursday?

ADV STEENKAMP: Judge, are you referring to all the applicants that testified so far? The only applicants that we could trace Mr Chairman, was the people who actually testified at the hearing.

We will have to see how many notices we have, but the people who actually testified, were the only victims.

CHAIRPERSON: Will we be able to work that out, it may be a short list, but we need to attach it to decisions.

ADV STEENKAMP: Judge, Mr Chairman, I understand correctly, what I normally do, I just send it through as well, but I will give you a copy of that as well. Thank you sir.

CHAIRPERSON: In the Nkosi application, the last one, there seems to be at least identifiable names, like the Thabete family and Mlaba. We have no further details on it and we couldn't get further details from the applicant. I don't know how possible it is for you or your associate, to obtain that information. If we can't, we can't, but at least, let's give it a shot.

ADV STEENKAMP: I will do so Mr Chairman.

CHAIRPERSON: I want to thank the public for its interest in these hearings. I am also aware of the trauma that many people had to experience and endure during those nasty days.

It is to be hoped that matters have now subsided and people can live together as human beings, as we should have been doing all these years. I further hope that we will take care and take particular precautions against a repetition of what occurred in the area. Too many people died. It will remain one of our tragedies of this country.

I am going to postpone this matter till tomorrow, nine o'clock hopefully, for the lawyers to come and argue what they need to argue. You are welcome to attend merely to listen to that if you want to and I intend to give decisions on most of the matters if not all, on Thursday. I thought it necessary to inform you, so that if you don't feel like coming to listen to lawyers, which is not always the most attractive thing to do, then you can come Thursday. We stand adjourned until tomorrow.