CHAIRPERSON: Alright are we ready to proceed? ...(inaudible) and Mr J B Sibanyoni, I would ask them please to speak into their microphones as well as the applicant and the victims' representatives for the sake of the record.
MR SIBANYONI: I am J B Sibanyoni, a member of the Amnesty Committee.
MR WILLS: Thank you Mr Chairperson, John Wills, an attorney of Pietermartizburg, representing both the applicants in this matter.
MR MAPOMA: Mr Chairperson, I am Zuko Mapoma, I will take care of the interests of the victims in this matter. I am Evidence Leader for the Committee.
CHAIRPERSON: Could you perhaps tell us who the victims are or at some stage, you needn't do it now, at some stage could you let us have a list of the names of the alleged victims?
MR MAPOMA: Yes Chairperson, the matter I'm calling is amnesty application of Tobias Ronnie Mbanjwa and Sakhamuzi Horali Elvis Ndaba. The mother of the deceased person is here, Chairperson, the application is for the murder of Wani Kinsele Derick Khanyile. His mother is Dombi Jeanette Khinisa. She is present attending the hearing together with her daughters, Gugu, Lynette, Sinclair and Khosi. I can just confirm, Chairperson, that they have given me a mandate to take care of their interests in this matter to the extent that they may require assistance. Thank you Sir.
MR SIBANYONI: Mr Mapoma, can you repeat the name of the mother?
MR MAPOMA: The mother is Dombi Jeanette Khinisa, K-H-I-N-I-S-A, that's the surname.
MR WILLS: Thank you Mr Chairperson, I call applicant S H E Ndaba.
SAKHAMUZI HORALI ELVIS NDABA: (sworn states)
EXAMINATION BY MR WILLS: Thank you Mr Chairperson.
Mr Ndaba, you completed ...(indistinct)
CHAIRPERSON: Before we commence, is there another set of earphones for the other applicant?
MR WILLS: Thank you Mr Chairperson.
Mr Ndaba, you applied for amnesty by completing the required or the prescribed form on the 10th May 1997, is that correct?
MR WILLS: And you confirm the contents of that form?
MR WILLS: You then at a later stage, in fact the day proceeding the first hearing of this matter and that being the 23rd June 1999, you supplied further details by means of an affidavit. For the record this affidavit appears on pages 8 to 11 in the papers, is that correct?
MR WILLS: And you confirm the contents of that affidavit?
MR WILLS: Now as regards the form, is it not so that you completed the form together with your co-applicant, that is Mr Mbanjwa, the prescribed form?
MR WILLS: They're remarkably similar, is that not correct, you collaborated with each other when you filled in the form?
MR WILLS: Mr Ndaba, you tell us in your affidavit that you were a member of the security department of the ANC and that you'd received external training, is that right?
MR WILLS: And that you were actually tasked to investigate complaints that the community had been lodging with the ANC structures in Dambuza concerning the activity of the deceased, is that right?
MR WILLS: It appears on page - the bottom of page 9, paragraph 9 to 13 or 14 of the affidavit.
ADV DE JAGER: Page 8 - paragraph 8.
MR WILLS: Yes, page 8 it commences - paragraph 8 it commences on page 9.
CHAIRPERSON: Before you go on ...(inaudible)
INTERPRETER: The speaker's mike is not on.
INTERPRETER: The speaker's mike is not activated.
MR WILLS: Thank you Mr Chairperson.
Can you, for the sake of those who have not seen your papers and haven't seen your affidavit, can you tell us about the complaints that the ANC structures were receiving in respect of the deceased?
MR NDABA: What happened was we would receive reports from area committees to the effect that they had been traumatised in the area. Some victims that used to come to the ANC office used to give us these reports.
MR WILLS: And what were the substance of these reports, I mean what was alleged that the deceased was doing?
MR NDABA: They alleged that the deceased and his gang harassed them. For instance a bottle store was robbed and the owner of that bottle store was shot and the deceased and his gang also took someone's home by force. Those were the kind of reports.
MR WILLS: And what, I mean what effect did this have on the ANC?
MR NDABA: It made our work very difficult because committee members were threatened, that is ANC members who were living in the area. They were harassed and threatened by the gang members.
CHAIRPERSON: Did they harass and threaten all the people who lived there?
MR NDABA: It was area committees who reported that people were being harassed and business people as well were targeted, those were the reports that we received from area committees.
MR WILLS: Now you say that, in your affidavit, that because, in paragraph 10 at page 9, that because the ANC was against it's criminal activities, the gang's criminal activities, that ANC members were actually targeted by this gang. Is that correct?
MR WILLS: What did you do as a result of receiving these complaints?
MR NDABA: After receiving these reports we investigated and enquired from the people who had been effected and explained to us what had been going on.
MR WILLS: And what did you find out about these complaints in the sense of their veracity?
MR NDABA: We discovered that the deceased and his gang were indeed harassing the community.
MR WILLS: Now why didn't you just go and report this to the South African Police for them to go and sort the problem out?
MR NDABA: At that time it was common knowledge that the police were collaborating in harassing the ANC. There had been many instances where people, that is ANC people, had been killed, shot at. At one time a house was attacked, that is the Midlands Chairperson, Mr Harry Gwala, which had been attacked by these gang members. We then felt that these gang members were being used by the police as part of their counter-revolutionary strategy.
MR WILLS: Now you say you did investigations. Did anybody task you to do any investigations or did you do that on your own accord?
MR NDABA: Because of the reports that had been received at the ANC office, we as the security in the ANC area and we were close to these areas, Comrade Entelas Skosane then tasked us to go and investigate these claims.
MR WILLS: Now who was Entelas Skosane? Who was he in the organisation?
MR NDABA: He was the commander in the security section in the ANC security section in Natal Midlands.
MR WILLS: And he was subsequently also integrated into the SANDF, is that right? Or he was integrated into the SANDF at a later stage, is that right?
MR WILLS: And prior to his death he was a major in the South African National Defence Force?
MR WILLS: You then said that you found out that these complaints were true and what did you do, did you go and speak to anybody about them? Anyone in the ANC?
MR NDABA: We reported back to our commander.
MR WILLS: And what did he say?
MR NDABA: He said we should do something about the situation.
MR WILLS: What do you mean by that? Do you know what he meant by that?
MR NDABA: As trained people we felt that he gave us authority to act which may include killing but he did not specifically say that we should go out and kill somebody, he said we should do something about it.
MR WILLS: And so what did you decide to do?
MR NDABA: We decided to kill the leader of the gang who was
MR WILLS: Now just to be clear, you've been talking about "we doing investigations" and "we reporting to Entelas Skosane", by the "we" are you referring to you and your co-applicant, Mr Mbanjwa?
MR WILLS: Was there anybody else involved at this stage?
MR NDABA: I don't really understand that question, at what stage? When we went to report?
MR WILLS: Was it only you and your co-applicant that conducted these investigations or was there another person who was with you?
MR NDABA: No it was just the two of us.
MR WILLS: And it was just the two of you that were tasked by Skosane to do the investigations, is that right?
CHAIRPERSON: How many people were there in this gang?
MR NDABA: Although I'm not sure of the correct number but there were many.
CHAIRPERSON: There were many in the gang and just the two of you were told to do something about it?
MR NDABA: That is correct. What happened was we were going to investigate the killings made by these victims and then we would report back to the commander.
MR WILLS: Yes, now what - you've said to the Committee is that it was you who decided to kill the leader of the gang, is that right, this Kinsele?
MR NDABA: Please repeat the question?
MR WILLS: You've indicated to the Committee that your leader Skosane didn't tell you what to do, he just said you must do something but it was you who decided to kill the leader of the gang?
MR WILLS: And when you say "you" I presume you're using that in the plural sense in that it was you and your co-applicant that made that decision together, is that right?
MR WILLS: So once you'd made that decision what did you do?
MR NDABA: We started following him. After a few days we got our opportunity to kill him. He at that stage was - at that time he had a wheelbarrow on which was a car battery and that is when we decided to kill him.
MR WILLS: Tell us what you did?
MR NDABA: As he was still walking along we just appeared in front of him. He recognised us and tried to escape. I took out my firearm and fired a shot. He continued fleeing and my co-applicant chased after him and shot at him which eventually killed him.
MR WILLS: And what did you do after that?
MR NDABA: On the next day we went to report back to Mr Entela.
MR WILLS: And did you find Mr Entela?
MR WILLS: And what did you say to him?
MR NDABA: We reported about everything that happened.
MR WILLS: And what did he say to you?
MR NDABA: He said that's fine.
MR WILLS: Now I see that at no stage had either you or your co-applicant been arrested or charged with this incident, is that right?
MR WILLS: And after this act, what happened, did the activities of the gang still continue or what was the position?
MR NDABA: There was peace in the area which had been effected before. When we enquired from committee members they informed us that things were smoother, there was peace.
MR WILLS: Now you say in your affidavit that no other persons other than those mentioned were involved in this incident. By that I refer basically to - you're referring yourselves, the two applicants and Major or should I say Entelas Skosane, the leader in the security department, is that right?
MR WILLS: There are others, I believe, who in the ANC leadership who were aware of that situation, is that right?
MR WILLS: And some of those might be called to testify?
ADV DE JAGER: Mr Wills, the only problem may be that I'm not too sure whether in fact Mr Skosane himself has been notified about this hearing. Could you tell us whether he is aware of the hearing and that he is being implicated and that ...(indistinct)
CHAIRPERSON: Did you say he is dead?
MR WILLS: Yes, I did say so, yes. He died of an illness last year.
ADV DE JAGER: And the other people, you haven't mentioned names now, so we couldn't give them notice?
MR WILLS: Yes, I have been in touch with certain other members of the local ANC leadership at the time and they had arranged to come and testify on Wednesday when this matter was already scheduled but the will if necessary be available to testify.
ADV DE JAGER: Ja, but we won't run into trouble because we haven't notified them. You're happy that they know about this and that you would call them if necessary?
MR WILLS: Yes, they're not implicated parties as such, they're just witnesses. Thank you Mr Chairperson.
Now I just want you to expand a bit, Mr Ndaba, you say in paragraph 11 and I quote that on page 10 that people were afraid to become members of the ANC or to show their support for the ANC in public as they were afraid of becoming the target of the gang. The effect of the activities of this gang that it was very difficult for the community to be organised. People were scared to attend ANC meetings and other political activities. I just want you to expand on those, the type of problems that the ANC was facing as a result of the activities of this gang?
MR NDABA: What I can explain is that there was confrontation between ANC members and gang members. This was the result of the ANC's stand which was fighting crime. This lead to the death of several comrades including an MK commander, Nee Radebe who was shot at by these gang members as well as other many comrades. What happened at that time was that the criminals were being used as one tool of counteracting the ANC at the time.
MR WILLS: Now you refer to this Nee Radebe as being killed by gang members. Was this the same Nee Radebe who you mention in paragraph 5 on page 8 of your application, this was the same person who recruited you into the underground structures of the ANC?
MR WILLS: You say in paragraph 1 that you're a member of the South African Police Protection Services, VIP Protection Services or the Provincial Protection Services? How did it come about that you became a member of those services?
MR NDABA: As a former MK member in the protection units I was integrated into the SAPS.
MR WILLS: And who are some of the VIP's that you have guarded since being in this position, who you have protected?
ADV DE JAGER: Can you kindly tell us before that when were you recruited into the SAPS?
MR WILLS: And who are the leaders that you protect, can you just describe your job briefly?
MR NDABA: I have worked with different leader including the former president. At the moment I am protecting Mr Zweli Mkhize who is the Minister of Health provincially. There are many other VIPs even from international countries that I have worked with.
MR WILLS: When you refer to the former president you're obviously referring to Nelson Mandela?
MR WILLS: Now just finally, the deceased, was he a member of any political party to your knowledge?
MR NDABA: No. What I know is that he was a criminal.
MR WILLS: Did you ever see him attending ANC meetings or branch meetings?
MR WILLS: Thank you Mr Chairperson, that's the evidence of the first applicant.
NO FURTHER QUESTIONS BY MR WILLS
CROSS-EXAMINATION BY MR MAPOMA: Thank you Chairperson.
Mr Ndaba, I take it that you are not able to dispute that Kinsele was a member of the African National Congress at the time that you killed him? Am I correct?
MR NDABA: I would dispute that because he would have not terrorised ANC members if he was one of them.
MR MAPOMA: But I understand he was terrorising so to say the community in general, not necessarily members of the ANC?
Is it not correct, in your own words?
MR NDABA: That is correct but that community was supporting and they were also members of the ANC.
MR MAPOMA: The next-of-kin of the deceased are saying that the deceased was a member of the African National Congress. What do you say to that?
MR NDABA: Well they could say that and I will not dispute if they say so but if he was he was doing something very contrary to what you would expect of an ANC member because he was terrorising ANC people.
MR MAPOMA: So would it be fair to say he was not a disciplined member of the ANC?
MR NDABA: I would not agree with you. It is common knowledge that the ANC is against the terrorising of communities and it's also against criminality.
MR MAPOMA: Yes but you will agree with me that during those years before the elections there were some categories of people within the ANC who were referred to as comrade Tsotsi, is it not the case?
MR MAPOMA: And those were members of the ANC who were having a problem with discipline? Was it not the case then with the deceased?
MR NDABA: From the evidence that we gathered during our investigation we discovered that he was not a member of the ANC and he did not have any role, he did not play any part in the political activities of the ANC.
ADV DE JAGER: And from the investigations you gathered too that he wasn't a member of the IFP?
MR NDABA: The area in which I resided there were no IFP members who resided there.
ADV DE JAGER: Well were there only ANC members residing there?
MR NDABA: Yes that was so unless they were members of other political organisations who did not reveal that but the main political party there was the ANC.
ADV DE JAGER: And he was also staying in that area?
Some of the friends of the deceased are going to say that they were friends of the deceased and they were members of the ANC as well in the area. Will you be able to dispute that?
MR NDABA: I will dispute that because even those people are going to testify here will show very clearly that the deceased and his gang were not politically affiliated, they were just criminals.
CHAIRPERSON: They weren't politically affiliated at all, you say? They were just criminals?
MR NDABA: As far as I am concerned, as far as I know they were just criminals.
MR MAPOMA: Is it not correct that the Dambuza area was the ANC dominated area?
MR MAPOMA: And during your investigation did you find out, did you come up with anything which linked the deceased with the police then as an informer for instance?
MR NDABA: What we found out was that in all their activities that they were doing they were never arrested. Another thing the police did not play any active role in ANC dominated areas, they were seen as supporters of criminal activities because they did not do anything about crime, they did not arrest them.
ADV DE JAGER: Yes, but the police did not arrest you either?
CHAIRPERSON: According to your evidence the two of you committed a cold blooded murder in public and you were never questioned, never arrested. Can you explain why?
MR NDABA: From the way we were clothed it was difficult for anybody to recognise us. I think that was why we never questioned and it is just our initiative that we revealed this information.
CHAIRPERSON: But as soon as the deceased saw you he was frightened and tried to run away, do you now say people couldn't recognise you?
MR NDABA: Please repeat the question?
CHAIRPERSON: You have told us in your evidence that when the deceased saw you, when you appeared in front of them he became frightened and tried to run away but you have now just told us that people couldn't recognise you, so why did the deceased run away when he saw you?
MR NDABA: He saw us withdrawing our firearms.
CHAIRPERSON: But you tell us you drew your gun after that, didn't you? Yes? Your evidence was
"We decided to kill him. We had appeared in front of him, he recognised us and tried to flee. I took out my firearm and shot him."
MR NDABA: We drew our firearms as we approached. It is not that we only drew our weapons after he had run away.
CHAIRPERSON: Well that is not what you said when you gave your evidence in chief, it would appear on the record? Carry on.
So Mr Ndaba, I want to clarify these two with you. Firstly in your investigations you came with nothing which said that Kinsele was a police spy. Is that correct?
MR MAPOMA: And in your investigation you came with nothing that says that Kinsele was a member of the ANC, is that correct?
MR MAPOMA: But you are not able to dispute that Kinsele was a member of the ANC? Is that not so?
MR MAPOMA: The family of the deceased together with his colleagues or his friends will say that you are a member of the ANC? You won't be able to dispute that will you?
MR NDABA: I would dispute it because there were people who resided in this area who were ANC members and who were also members of the area committee.
MR MAPOMA: Which area did he reside in?
MR NDABA: In area A in Dambuza. I mean area B.
MR MAPOMA: And where did you reside?
MR MAPOMA: Is it not correct that after the deceased was killed Area B youth were dissatisfied with that and a war erupted between yourselves and the youth of area B?
MR MAPOMA: Is it your evidence that after you killed Kinsele you never attacked any other person or youth who stayed at area B?
MR MAPOMA: Do you know Siphiwe Mkhize?
MR MAPOMA: Do you know where he is now?
MR MAPOMA: Did you not attack him at some point?
MR NDABA: No, I've never attacked him.
MR MAPOMA: Do you know Doctor Dlamini?
MR MAPOMA: Did you not attack him?
MR NDABA: I've never attacked him.
MR MAPOMA: He will say that you did attack him after the death of the deceased. What will you say to that?
MR NDABA: I will say that is a lie.
MR MAPOMA: Why did you see or perceive the deceased as the leader of what you refer to as a gang?
MR NDABA: We found that out after having spoken to the people who had been effected by their activities.
MR MAPOMA: Are you able to tell the Committee what activities that the deceased is said to have been involved in?
MR NDABA: Criminal activities such as attacking business people as well as robbing delivery vehicles as well as terrorising area committee members in the area as well as many other incidents which I cannot recall.
MR MAPOMA: Now the deceased in particular, what is it that he was alleged to have done?
MR NDABA: It was alleged that he was the leader of all these activities and with regards to the shop owner who was attacked and his store robbed, he himself said it was the deceased who shot at him.
MR MAPOMA: Who is that store owner?
MR MAPOMA: Where does he reside?
MR MAPOMA: Is that part of Dambuza area, Imbali?
CHAIRPERSON: Is his shop in Imbali or Dambuza?
MR MAPOMA: He had a shop in Dambuza and that is where he was shot.
CHAIRPERSON: Is this the gentleman you've already referred to as a bottle store owner?
MR MAPOMA: Was he a member of the ANC, do you know perhaps?
MR NDABA: I cannot be certain about that but I knew him as a business man.
MR MAPOMA: Amongst those you have questioned in your investigation, do you know specific ones who were members of the ANC, by their names?
MR NDABA: That is correct. Those are the people who are going to come and testify.
MR MAPOMA: Thank you. You have said that the late Endela Skosane said you must do something and he never said you must kill. Then why did you kill then?
MR NDABA: We felt that there was no other solution except to kill him.
MR MAPOMA: You did not even take him to the leadership of the ANC to let him answer for the activities that were alleged?
MR NDABA: It would have not been easy because the war was between ANC leaders and the criminals. That war was ongoing therefore that sort of communication or the sort of relationship did not exist.
MR MAPOMA: Chairperson, I have no further questions at this stage.
NO FURTHER QUESTIONS BY MR MAPOMA
MR SIBANYONI: Did the deceased know you the two of you?
MR NDABA: I think he used to see me.
MR SIBANYONI: What made the deceased to run away when you approached him?
MR NDABA: He was aware of his activities and when he saw people with firearms in their hands I think he must have concluded or decided that maybe we were after him for his activities.
MR SIBANYONI: Thank you, no further questions Mr Chairperson.
ADV DE JAGER: Did he have a firearm?
MR NDABA: Please repeat the question?
ADV DE JAGER: Did the deceased, did he have a firearm?
MR NDABA: I am not certain because we did not search his body but we knew that he did have a firearm which he used to shoot at the bottle store owner as well as when he used to harass people in the area.
ADV DE JAGER: Weren't you keen at that stage to get firearms to protect the community?
MR NDABA: As I mentioned before that I used to work in the protection unit we did have firearms in the organisation.
CHAIRPERSON: But we have heard evidence again and again of how political parties were seeking to obtain firearms to use for protection purposes. Was that not general policy?
MR NDABA: What I can say is that we already had firearms so we did not have a need to seek out more.
MR SIBANYONI: Excuse me Mr Chairperson, I forgot one question. You said the way in which you were clothed it was not easy for people to know who you are. How were you clothed?
MR NDABA: We were hearing hats and our faced were covered.
MR SIBANYONI: What type of hats?
MR SIBANYONI: Are you referring to copper hats? The hats known as copper hats or balaclavas?
MR SIBANYONI: No further questions, Mr Chairperson.
CHAIRPERSON: I'm interested in this firearm. Here was a man you say you knew was a leader of a gang who harassed people all over the place, you knew he owned a firearm, you had now shot him but you didn't feel it necessary to take any steps to remove the firearm to prevent it falling back into the members of his gang?
MR NDABA: Our mission was to kill him.
CHAIRPERSON: So your only interest was to kill him, not to ensure that there was less violence in the area later?
MR NDABA: We were certain that if the leader was killed the subordinates would call us and that is exactly what happened.
MR NDABA: I cannot say but I should think he was about my age because we were about the same height.
CHAIRPERSON: Well, we'll no doubt find out from his family but can you tell us what you age is now?
RE-EXAMINATION BY MR WILLS: Thank you, just one issue in re-examination if I may, Mr Chairperson?
Mr Ndaba, you mention that Mr Ensela your leader indicated that you must take action. Now what do you think he meant by that?
MR NDABA: As people who were trained who understood the language that is used, military language, we thought that he meant that we should take steps which included even killing.
MR WILLS: Are you saying that he bestowed upon you a discretion to take whatever action you thought was necessary including killing? Is that what you mean?
MR WILLS: Yes, thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR WILLS
MR WILLS: I call the second applicant. ...(intervention)
MR MAPOMA: Sorry Chairperson, just before that I would like to ask some questions in follow up to what has been asked in re-examination. Pursuant, I take it because I was pursuant to the questions that I ...(indistinct) from the bench, Chairperson.
FURTHER CROSS-EXAMINATION BY MR MAPOMA: Mr Ndaba, I take it that you knew that the ANC never had a policy to kill people perceived as criminals? Isn't that so?
MR MAPOMA: And naturally when you were given a mandate to do something, that something surely would be something within the policies of the movement, is it not so?
MR MAPOMA: Thank you, no further questions.