CHAIRPERSON: We were this morning to continue with the part heard matter of Mr Mbanjwa and Mr Ndaba. They are both present and represented by their counsel, Mr Wills. Unfortunately and tragically we were told a few minutes ago that the mother of the deceased in this application had been shot yesterday afternoon. For those of you who had been present throughout the hearing on Monday will recollect that reference had been made to her and to the fact that she might give evidence and she had in fact been expected to be here as a witness today. In our view it would be impossible to continue with the hearing in these circumstances until there has been a complete investigation into the killing of this woman, Mrs Dombi Jeanette Kanisa and the motive for that killing has been ascertained. We are unable to ascertain a date to which we can adjourn the hearing because the investigation will obviously take some time.
I can however place on record that we, the members of the Committee, have taken steps to ensure that a full and comprehensive investigation is conducted as soon as possible. So we are obliged to adjourn this matter to a date to be arranged and on behalf of myself and the Members of my Committee and I'm sure everyone else connected with this application, we would like to express our sympathy to the members of Mrs Kanisa's family in their tragic loss and to trust that this will not mean further violence. Thank you, we now adjourn this hearing to a date to be arranged and this application to a date to be arranged and todays hearing will adjourn for the arrival of the people who are still expected. We will commence the other matters set down for today once we are in a position to continue once all the parties are here.
MR MOLOHLANYE: Yes Chairperson, I'm appearing for the victims, I've just consulted with them. The victims who have been identified are the relatives, in fact the grandfather of the children of the deceased person. The children in question are minor children, Azandi Sibisi who is 7 years old and Anele Sibisi who is 5 years old. These children were born out of the deceased's girlfriend by the name of Azi Sibisi and both Azi Sibisi and these children stay with Bafana Anes Sibisi who is a father to the mother to the children, he's a grandfather to the children, so to speak, they are all dependant on him. He is here attending the hearing today.
MR MAPOMA: Yes Chairperson, to start with, when we came for the hearing the position was that the victims were not located altogether because the mother to the deceased was unknown where she resides now and out of the court record, the court judgement, it transpired that Manes Sibisi was a brother to the girlfriend of the deceased, did testify in court and his address was located from the court judgement and pursuant to that, the Committee has directed that Manes Sibisi be located so that the minor children of the deceased can be located as well with a view to identifying the victims which has been done. Yesterday we sent our witness protection to pick them up, they are here today. Unfortunately the mother to the deceased person, her whereabouts is not known even by the victims who are here now. They say that she used to stay in KwaMashu but now has left for the farms somewhere in Shlabatini, they don't know where so all the attempts to locate the mother to the deceased have been fruitless, unfortunately.
MR MAPOMA: The investigative unit of KwaZulu Natal has indicated that they have been making attempts to locate the victims since the matter was set down but in vain. Now the last attempt to locate these particular victims who are here was made yesterday.
MR MOLOHLANYE: If I may proceed Mr Chairperson? I have here an affidavit by Mr Skomuzo Chris Masondo that I request the Honourable Committee to take note and this affidavit taken as Annexure A, evidence and to further amplify that affidavit I refer the Committee to the application of Mr Masondo in the bundle, particularly page 4 and page 5 which are attached to the application.
For the record, Honourable Committee, I request Mr Masondo to read the affidavit for the Committee and to confirm it and after that we proceed with Zulu but he can read the affidavit in English, Chairperson.
"I, the undersigned, Skomuso Chris Masondo, do hereby state under oath and say I am 26 years old, I am the applicant in this hearing. I'm am presently held at ...(indistinct) Prison. I was residing in B Section in KwaMashu.
In 1991 I joined the African National Congress with Youth League when it's first branch was launched in B Section and I was elected as a chairperson of the league in that area. In 1993 I was elected as the secretary of the branch. In the early '90s there were tensions in KwaMashu because of political affiliations between the ANC and the IFP supporters. It is common cause that at that time the province of KwaZulu Natal was engulfed in violence and parties were calling for ...(indistinct) policies in KwaMashu and KwaMashu was no different. In KwaMashu the tension was exacerbated by the fact that the hostel dwellers were IFP supporters whilst on the other hand the majority of the residents were ANC supporters.
On certain occasions when the IFP supporters were returning from their rallies they would march through B Section and in that process the residents in that area would be attacked and injured as well as the fact that it became apparent from the threats made by IFP group an attack was imminent on the residents of B Section as it's physical location lay vulnerable adjacent to the hostel. The IFP hostel dwellers would intermittently shout out threats of attacks. As a result of the aforegoing, we as members of the ANC Youth League in the B Section took a decision to strategise a mechanism of protecting our community in regard to those attacks. A meeting of the ANC Youth League members was held and the issue was placed on the agenda for discussion. I was the chairperson of that meeting where all the executive members were present. It was resolved at that meeting that our community should be protected. The ...(indistinct) that is of that of the executive would better mind the means and the manner of protection. Shortly thereafter, the executive duly met to discuss the matter. Present at the meeting were Inklankla Mupolumo, Cedric Dlamini, Dumsang Nteto, Tuli Shlatayo, Themba Madooi and myself.
It was decided that I should take responsibility of forming a defence unit. I was also given powers to appoint any person whom I deemed fit and proper to ...(indistinct) of the defence unit. I appointed Cedric Dlamini, Dumsang Nteto, Sembi Samapomo, Tula Njalo, ...(indistinct) Khanyile, Jabulani Dlamini and Lucky Komeko.
We as members of the defence units resolved that our community, being an ANC stronghold, should be defended by all means necessary even if it meant the ultimate sacrifice of our lives but there was one impediment, namely the absence of our means to secure arms and ammunition to protect our people. We accordingly took a decision to disarm those persons who were serving the then apartheid regime, in particular members of the Police Force. The decision was arrived that on the basis that the members of the Police Service took an oath of allegiance to the apartheid regime upon assumption of their duties. Under the civil war conditions the prevailing ...(indistinct) in KwaZulu Natal at that time, they were viewed as justifiable targets. Investigations were then made about movements of some policemen in KwaMashu. Thereafter police members in KwaMashu were monitored and information gathered as to prepare for the task for attacking and disarming same.
On the 5th February 1993 Dumsani Khanyile, Insani Nteto and myself were on our way from Duzu walking past C-Section. Whilst walking in C-Section we noticed a blue motor parked on the side of the road. Dumsani then told us that a man that drove that car was a policeman staying in D-Section. We went past the said motor vehicle as to confirm that positively the identify of the policeman. We walked a few paces until we reached a corner on the very street and decided to disarm him. At the time I was armed with a 9 mm Z28. Dumsani was armed with a 3.8 special and Kosanati with a 9 mm CZ83.
As we approached the policeman, Dumsani drew his arm and ordered the policeman not to move. I only drew my firearm and Kosanati went around the vehicle and positioned himself alongside the passenger seat. The policeman then attempted to turn his head in a manner to get a better view of us. Dumsani then shot him in the head. I also shot him on the leg. Kosanati did not fire any shots. Dumsani then opened the door to search him but a gun was not found on his body. Thereafter Kosanati took a briefcase from the back seat of the car and he fled from the scene shooting randomly in the air to keep people at bay and thereby enabling us not to be identified. I then took the firearm to Namuso Khumalo for safekeeping. I was arrested on the 15th February 1993 and I was later released on bail but I absconded.
As we had predicted earlier the IFP was determined to allow no other political activities in KwaMashu. In March 1994 the ANC had duly arranged for a pre-election rally to be held at KwaMashu stadium. When we arrived at the stadium we found IFP supporters occupying the stadium affirming that they would be using it for their own rally.
On the same afternoon when they returned from the ...(indistinct) they entered areas of B and F Sections. They launched numerous attacks on people in those sections as well as burning houses. As a result many people were injured and killed, they are for reprisal for the fighting between hostel dwellers and ...(indistinct) continue.
Finally, I would like to ask for forgiveness from all those who have lost their family members, friends and colleagues. I am remorseful of all my actions which were motivated entirely by political consideration of objectives at that time. I wish to extend a warm hand of peace between myself and the victims' families."
MR MASONDO: As I noted before when after that decision was taken after that decision was taken that we were going to attack the police we investigated and found out who were the police residing in the nearby sections so we monitored them. I even knew where his house was.
MR MASONDO: If there was a meeting that was to be held at a regional level, they will send a message that they would require representatives from the branch but it was not specified that I personally would be involved but they would send a message that representatives would be present at that meeting.
MR MASONDO: No, we only reported about the problem that we encountered in the township. I went with Cedric to explain what the situation was but they only informed us that they would only be able to handle or resolve the problem when they heard later on but at that time we were facing this problem in the township.
MR MASONDO: It was not ANC policy to attack policemen. We took the decision as a branch, it had not been approved by the regional committee. After we had failed to receive any assistance or to find solutions from the regional level we discussed this matter as a branch and took that decision with our members who told us that they wanted us to defend them in whatever possible way.
MR MASONDO: The decision to attack policemen was not taken at that general meeting. At that general meeting people told us they wanted to be defended but they left the decision to the branch executive committee as to how this would be done. At a meeting of the executive committee it was then decided that we should address this issue. As the branch executive committee we discussed on a strategy and we decided that after having made several attempts we should then take a decision of defending ourselves and at that time my colleagues said that ...(intervention)
MR MASONDO: Sorry. After that general meeting with all the members, the branch executive committee met separately and the issue that had been discussed a the general meeting was discussed further and it was decided that we should find a way of defending the community and my ...(intervention)
ADV DE JAGER: Could you go a little bit slower please, we've got to write down what you're saying and they've got to interpret it so kindly go a bit slower, go sentence by sentence please? The executive meeting met and you decided to do what?
MR MASONDO: If I remember correctly there was no ANC leader who specifically told us that we should attack the police but if I remember correctly, Harry Gwala was sometimes mentioned at the rallies that police were our enemy.
ADV DE JAGER: But could we just distinguish, there's a difference in attacking a policeman and taking his firearm for instance and a decision to kill a policeman. Did anybody ever authorise you or did you self decide that you should kill a policeman in order to get his weapon or did you decide to go and rob his vehicle?
MR MASONDO: No one authorised us to kill policemen. The decision was the police would be attacked but no one specifically said that decisions means that we will kill them but in the process of attacking them policemen were killed.
MR MAPOMA: You were asked whether there was any other person who was in the vicinity of the policeman when you shot him and you said there was a young boy who ran away. Was it the only person who was there?
MR MASONDO: But Mr Masondo please, I mean your target was just in front of you and the target in front of you was talking to somebody who was immediately next to him. Is it possible not to say that person, that young person?
MR MASONDO: No, we did not. After his body had been searched and we were about to leave I told Dumsani to remove the briefcase from the vehicle and we thereafter fled and as we were running away we shot in the air.
MR SIBANYONI: Concerning your position in the ANC Youth League branch, it appears to me from your answers that you were not aware that as the chairperson of the branch you were automatically mandated to attend or to be and ex-officio member of the region, did I understand your response very well that you were not aware that that was your sort of constitutional right but you are saying that it had happened some time that you will be requested or any other person would be requested in your place?
MR MASONDO: No, what I knew was that if I was supposed to attend a meeting I would be informed. For instance a letter would be sent through KwaMashu office and they would be distributed to the branches accordingly. I was not aware that I would automatically sit on meetings at regional level
MR SIBANYONI: Now after you complained to the region about the problems you were experiencing in the community, why didn't you ask for their permission whether you can take some steps to disarm the police to enable you to be armed to defend yourself?
MR SIBANYONI: Did you feel that you had power to make such a policy decision to say we are now disarming police in order to have arms to defend ourselves? Did you feel that as a branch you were entitled to take such a decision?
CHAIRPERSON: Did you ever ask the regional can you please give us arms so we can defend ourselves, defend the community? We're now talking about 1993 when the ANC had supplies of arms in this country.
MR MASONDO: We did not specifically ask for arms but we explained our problem and we told them that we needed to defend our community and we requested them to assist us in any way possible and they said they were going to get back to us which they did not do.
CHAIRPERSON: What I can't understand is surely it would be much easier to ask them and get arms from them than to try to disarm policemen who would just go away and get another weapon? Your little branch was not going to disarm the South African Police Force, was it?
MR SIBANYONI: And we were told the ANC had it's own self defence unit structures and those were the people who were expected to defend the community, not the ANC Youth Branch. Were there no SDU structures formed by the ANC in your area?
MR SIBANYONI: But we are told the ANC requested some MK or former MK members to train people who were serving in the SDUs, do you know of any people who were trained in your area to defend or to be part of the SDUs?
MR SIBANYONI: It was there for something like ten days am I correct because this incident happened on the 5th February and you were arrested about the 15th or you were doing the pointing out on the 15th, is that so?
MR MASONDO: I was the commander of that unit, I had that responsibility to safeguard these weapons and give them to persons whom I trusted. It was not to be that these weapons would be carried or brandished wherever we went but we would use such firearms when we went out on an attack or maybe if we were attacked we would use them to defend ourselves but they were not meant to be carried at all times.
MR MASONDO: We were not the only members of the defence unit and we had not put down a policy on the amount or the number of firearms we were going to take or disarm the police for the purpose of defending the community.
MR MASONDO: The firearms would be in our possession if we went out on a mission. It was agreed that after each and every instance I would be responsible for collecting and keeping these firearms safely so that they are not used in other instances but they were only issued out when we went out on an operation.
CHAIRPERSON: I thought you'd just told me that all the firearms were handed back to you and you were the person who kept them in safety until they were issued for another operation? Haven't you just said that?
MR MASONDO: I used to keep them or I used to give them to any person whom I trusted as it so happened that I gave this other firearm to Nombuso. The other one was at D-Section. When I was arrested the police requested me to point out a firearm that was removed from Mr Mthembu, that is the one that I pointed out.
ADV DE JAGER: So if you've killed a person, have you killed so many people in your life that you even can't remember the number of people you've killed? Why would it take you so long? An ordinary man would say listen, I've killed two people or I've killed four, but you can't give us a straight answer? It is correct then that you killed two other policemen apart from this one?
MR SIBANYONI: Why did you then only apply for amnesty for the death of Tokazani Mthembu and not for the death of the other two policemen and attack of the others where you were disarming them. Why did you single this one out?
MR MASONDO: I was not advised when I made my application, I thought that when you apply for amnesty you do it only in regard to a crime that you have been convicted for but when Ashega arrived at Westville Prison I informed her that there were other incidents that I had been involved in.
MR SIBANYONI: And another information was that you attacked him, immediately ran away and only thereafter someone amongst you there said take the briefcase which will mean your motive in attacking was not to disarm him because if that was the case you would have taken the briefcase immediately. What do you say about that?
MR MASONDO: I would not be in a position to tell you why that happened. When this happened it did not occur that we should just take the firearm, even shooting him was not something that was pre-planned, it happened on the scene. I cannot explain as to why we didn't just disarm or maybe just shoot at him.
MR MASONDO: I was trying to explain because it was put to me that he could have been just disarmed. I was trying to explain that we had not specifically decided before that we were going to kill him but we happened that sometimes when we were in the process of disarming a person that person will end up dead.
MR MASONDO: That's what I was trying to explain earlier that on earlier occasions it would happen that in the process of disarming a person, that person will end up being shot or dead. I cannot explain the reasons but it happened.
CHAIRPERSON: There were two of you with guns on the driver's side and the other one with a gun on the passenger side, so there was nothing this man could have done. He was offering no resistance, just sitting there?
MR MASONDO: He was a policeman. I am not in a position to say whether he was fighting the ANC or the people in the township, I cannot say but our decision was to disarm the police and it was not specified which members of the police force.
ADV DE JAGER: Yes, but there were even members in the police force who were members of the ANC? So you didn't know whether he was a member of the ANC or whether he was a member of the IFP or whether he was interested in politics at all?
MR MASONDO: No we did not know his political affiliation, we were carrying out a decision that had been taken. We had not realised that there were police who supported the ANC or not but we decided that our decision was based on that fact that the police were working under the then apartheid government.
MR MASONDO: As I mentioned earlier, in the process of disarming the police some were killed. Killing someone is not something pleasant or good but it happened. I cannot give reasons as to why he was killed in the process but that is what happened.
CHAIRPERSON: Well that is what makes your evidence so completely unintelligible to me, I can understand you saying if in the process of disarming someone he tried to struggle or reach for a weapon and he got killed but to just say as you do say again and again, "I can't give any reason why he got killed, he just got killed", when it was not your policy to kill? You killed someone by pulling the trigger of a pistol, it requires a conscious act on your part and it is clear that you had done it a number of times, you had killed people deliberately. You didn't bother to ask for amnesty for the others but you are asking for the one you were convicted of and you cannot tell us how you came to kill him? Your objective was to disarm him, that was your political objective. Your political objective was not to kill him. Why did you kill him?
MR MASONDO: I cannot put a reason as to why he was killed. What we knew is that after his death we would take his firearm and that would be disarming him. We did not discuss that the killing of somebody was outside our policy. In our minds that was part of the same thing because our purpose was to disarm them.
ADV DE JAGER: Yes but this was after the peace agreement had been signed by the ANC and while negotiations were going on, isn't that so? You were aware of the peace agreement that at that stage the political parties were trying to have a form of peace established in the country?
CHAIRPERSON: One point I'd like to clarify, can you go back into this, is you were asked if you agreed if it was not the policy of the ANC at that time to kill policemen and your reply to that was "yes but we had taken a decision", but as I understand your evidence you had not taken a decision to kill policemen, had you?
CHAIRPERSON: Well he opted it happened once, something you know should not have happened. You should have stopped committing such attacks. You knew then that you had done something contrary to your party's policies, didn't you?
Mr Masondo, I think the members of the Committee have been posing one question and that is what was the reason for you to kill Mr Mthembu at the time? Can you give any reason that made you to kill, Mr Masondo, was it an act that happened at the spur of the moment or was it planned?
MR MASONDO: It was not pre-planned that we were going to kill him. On attacking the police it was not specifically decided that we were going to kill policemen and it must also be clear that when we left or when we went on our way it was not our purpose to kill Mr Mthembu but we came across him along the way.
MR MASONDO: I would not say it was by mistake because we were responsible for the act. Although I cannot explain why he was killed, our intention was to disarm him but in that process he was killed. If that act of killing him had been a mistake maybe he could have been shot just once.
CHAIRPERSON: So the three of you went right up to the windows of the car on each side occupied by a policeman whom you knew lived in the area and you say you just went there to disarm him but if you had just disarmed him he would have certainly been able to identify you wouldn't he?
Mr Masondo, as you have said in your evidence that there were attacks on the police before this incident. Those previous attacks before this one, the police were they resisting or is there any history of the police resisting you disarming them?
CHAIRPERSON: I thought you told us earlier that you cannot explain or give reasons why those people ended up dead, now you say "oh, they ended up, they were shot because they resisted." Why didn't you tell us that when you were asked this question earlier?
MR MASONDO: There is an incident that took place at B Section. At that incident that policeman was being disarmed, I pointed my firearm at him and he tried to draw his firearm and I shot at him but Mr Mthembu did not do anything.
CHAIRPERSON: Well, was it even the executive or was it the members that he pointed to the defence unit. If you look at the bottom of page 2 of his affidavit he says he appointed the defence unit and then he goes over the page and in paragraph 6 he says
MR MASONDO: The branch executive committee gave me the mandate to elect people who would be in the defence unit. I was going to discuss with those persons a strategy of defending the community. The executive had given me the mandate to form that defence unit and to appoint people who would be in that unit.
Mr Masondo, you have been involved in many incidents, disarming the police. Are you in a position to remember the details to say in these incidents this and this happened or are you failing to recall?
MR MAPOMA: The reason I'm asking you that question is because in your affidavit in paragraph 8, page 4, you are saying the policeman then attempted to turn his head in a manner that would enable him to get a better view of us. In other words you the assailants, but when we look at the judgement on page 21 of this bundle evidence was led that the deceased made a move to grab his briefcase which was on the back of the seat and then it goes on to say
MR SIBISI: The deceased used to come to my home and on his visit he would request me to bring his child to him. He came around and parked the car, I saw him and I took the child and went to him. He was seated inside the vehicle. The child was two years old.
MR SIBISI: As he was still talking three men approached. They approached the car from the front. As they approached there didn't seem to be anything amiss about them but as they just passed the car they turned back and came back to the driver. They insulted him and said he should not move. One person tried to shoot at him.
MR SIBISI: One of them tried to shoot but the gun didn't go off. Thereafter Tobazani tried to reach for his briefcase for his firearm that was in the briefcase then at that time the second person shot at him at the back and one of them searched him and couldn't find the firearm and they made as if they were leaving then one of them said they should remove the briefcase and then they then took the briefcase and fled. A neighbour approached and they shot in that person's direction and the neighbour went back into his house and that's when they fled.
ADV DE JAGER: No, I'm asking did the boy sit there, the two year old, was he standing outside next to the car and was the front door of the car closed or open? How did the deceased communicate with the child?
MR SIBISI: The child was shorter than the car door. The child was outside and the door was closed and after they had fired the shot they went around the vehicle and that is when I picked up the child and ran into the house but when they fired the shot the child was present outside the vehicle.
MR SIBISI: They searched him and did not find anything on him and they took a few steps trying to flee but then at that time one of them said the briefcase should be taken and that was then they took that briefcase.
CHAIRPERSON: What portion are you referring to? I have not seen a copy of his evidence in the court, I have merely seen a copy of the judgement which purports to quote portions of it. Some agree with what he said and some don't.
MR MOLOHLANYE: Thank you Chairperson, I'll refer the Committee to page 21 of the judgement. In paragraph 20 where Mr Sibisi according to the judgement by the Honourable Judge there, the evidence that was given by Mr Sibisi in saying that the three assailants came running past, having done so they turned around and came back each drawing a firearm as they did so. Sibisi realised that there was trouble, he jumped off the vehicle, took the child and ran to his house on the opposite side of the road.
CHAIRPERSON: I don't think you should put the words to him but you should put the contents to him that what appears here appears to indicate that he took the child and ran to the house before the deceased was shot?
CHAIRPERSON: Do you understand that because it appears from what the judge said at the trial that in your evidence at the trial you said that you realised there was going to be trouble so you took the child and ran to your house before the deceased was shot but after you had run away, they told the deceased not to move and shot him? Do you understand that that seems to differ from what you have told us. Here you have said that it was after the shot was fired that you took the child away?
MR SIBISI: As I mentioned before when this happened I was shocked, I did not know what to do. I was at the scene and when they went around the vehicle I was still present. After that I picked up the child and ran away.
It is my submission, Chairperson, that in this particular application we have an application that is genuine and which in terms of Section 20 of the Act does qualify the applicant to be granted amnesty on the following grounds that the act that was committed by the applicant was committed with a political objective with the conflicts of the past and that political decision was not merely taken by the applicant on his own but it was a decision that was taken by the community in the section in which the applicant stayed.
MR MOLOHLANYE: Chairperson, the killing of Mr Mthembu comes as a result of a decision that was taken by the community that they need protection and in their protection the executive of the ANC should decide which measures to take and therefore they decided to disarm the policemen and in disarming the policemen, Mr Mthembu was killed. Therefore it would be my submission that Mr Mthembu's ...(intervention)
MR MOLOHLANYE: Chairperson, Mr Mthembu was killed because the applicant and the community in KwaMashu saw this policemen as justifiable targets at the time. As he has stated in his evidence that even leaders or African National Congress leaders said in public that policemen were their targets.
MR MOLOHLANYE: Chairperson, my understanding and your understanding may differ from the situation at the time. When a leader makes such an uttering the people on the ground took it seriously and took it in a manner that ...(intervention)
MR MOLOHLANYE: Thank you Chairperson, I won't deny that. As we all know that the policy of the ANC was not to kill or to murder anyone but it happened on the ground that people or the supporters of the organisation, not only the ANC, but all supporters of every organisation did partake in the killings and murdering of other people, then they did so, that they did all these acts for their own organisations, for the good of their own organisations. So in the present instance you can say that the applicant did the killing and attacking of police not only from a directive order but as a people on the ground who saw it necessary for themselves to protect their own membership which was the ANC.
"I would not say that the decision taken was wise but the condition on the ground left us with no alternative except the idea of disarming policemen while by that time were serving an illegitimate regime"
and I can't see that but I think it's the last sentence, I'll just end up there and go any further. It is clear from the application that the decision to kill or to kill Mr Mthembu did not only come as an instant or something that - but they took a decision to disarm the police and it was foreseen by them that going to disarm policemen was not going to be an easy thing to do. In the process a person might be killed.
"We decided to disarm them" and they drew their firearms, "the policeman attempted to turn his head in a manner that would enable him to get a better view of us. Dumusani then shot him in the head and I shot him in the leg."
MR MOLOHLANYE: Chairperson, as I gathered from the answer that was given by Mr Masondo, I think he is a honest applicant or witness that you have because he knew by saying that then the deceased might have been killed cold-bloodedly, without any reason. We have an honest ...(intervention)
ADV DE JAGER: Mr Molohlanye, if that was the case, if the applicant told us that "listen, we've considered the police to be our enemies and we decided to kill every policeman we could come across" that would perhaps be understandable and you would say well, "that was the decision taken and we've killed him because they were our political enemies", but his evidence is "we took a decision to disarm the policemen" they've disarmed ten other policemen, in the process only killing three. He was asked "why did you kill three, why didn't you kill all ten then?" It may be that if they resisted in order to get the firearm it would follow that they would have killed them, that may be a position but in this particular instance there was no resistance according to the applicant and you said he was honest about it and I think he was. If he's been honest and if it's true what he says, they could have taken the firearm without killing him, they could have achieved their objective without killing him. Wasn't the killing then totally disproportionate to what they were after, namely to take the firearm?
"The policeman then attempted to turn his head in the manner that will enable him to get a better view of us. Dumusani then shot him."
ADV DE JAGER: If I'm confronted and I see three people with a gun and this man says "don't move" and I'm turning my head to look at this man standing with a gun, can you say I've done something that would threaten you and even he, on his own evidence, if he said okay, the turning, I was threatened by the turning of his head but he said no, I wasn't threatened.
MR MOLOHLANYE: Chairperson, we don't have any evidence in saying the manner in which the deceased turned, whether he turned slowly or the manner in which he turned did make them afraid or else or otherwise.
ADV DE JAGER: Ja but even so, would that make a difference unless we've got evidence by the applicant that he was threatened and that he couldn't achieve the purpose namely to disarm the man without killing him?
MR MOLOHLANYE: That is correct, Honourable Member, and I believe that is a reason that led them to shooting the deceased when he turned his head because they were scared, frightened and every time they were afraid when they went to attack policemen.
CHAIRPERSON: But isn't it grossly disproportionate as my colleague said, to kill a man because he turns his head to look and you get frightened? You are not killing him for any political objective in those circumstances, are you?
MR MOLOHLANYE: It was IFP and ANC. The police at that time were under the KwaZulu Natal, the KZP Police as they were known then and all the police were seen as the targets by the people, they were seen as collaborators by the then government of KwaZulu Natal.
ADV DE JAGER: That's quite correct, if that was the evidence before us, that they killed him because he was a collaborators with the IFP and that they resolved to kill the policemen because they were after collaborators, but his evidence was none of that sort: "we wanted to disarm him, that was our objective, our objective wasn't to kill enemies" because they never resolved to kill him in any event. The only resolution was to disarm him and if in the process of disarming he had done something to cause them to kill him, we will try and see whether that would be sort of accommodated in the original objective but here they wanted to disarm him.
According to the evidence they could have done that without killing him and that was the reason why he was asked "well, why then kill him?" and he didn't say "I've killed him because we wanted to kill him because he was an enemy of our community at that stage" or that he was a policeman harassing the community. We've specifically asked him "this man, you knew him, what did he do to the community?" and he never offered that explanation.
And Chairperson, I believe that the applicant although the act was disproportionate to their main objective, their main objective was to disarm the policemen not only to go and kill him as the evidence was given by Mr Masondo, but the action happened in a spur of the moment, in the attacking, when they went to an ...(indistinct), on the spur of the moment it happened that they shot the deceased, that's why he is also ...(intervention)
"We as the members of a defence unit resolved that our community being an ANC stronghold should be defended by all means necessary even if it meant the ultimate sacrifices of our lives."
CHAIRPERSON: But there was one impediment namely the absence of our means to secure arms and ammunition to protect the people, that was the purpose, to secure arms and ammunition to protect the people.
CHAIRPERSON: This is the last time I'll say this, my colleague here has put to you that that could well be the position where someone tries to defend himself, drawing a gun, you can anticipate that, but there is no such evidence before us?
MR MOLOHLANYE: Thank you Honourable Member. Your attention is drawn to where Dumusani ordered him not to move, therefore if you ordered it's common cause that when someone points a firearm at you and says don't move ...(intervention)
ADV DE JAGER: You see I get your submission that the turning of the head and it said "in a manner that would enable him to get a better view of us", that was interpreted as against their order not to move.
MR MOLOHLANYE: Thank you Honourable Member, the reason for that as I still recall from the evidence is that the weapons were given to people whom the applicant trusted, not only to members of the defence unit but he was the one who was responsible, he was the one who was acting as a commander so he was the one who looked after the weapons and saw it fit he must place a weapon with a particular person whom he trusted at the time.
ADV DE JAGER: If you wanted the weapon to protect yourself wouldn't you give it to somebody who would be able to use the weapon when they're attacked and they wouldn't know when they would be attacked so they give it to their self protection unit so that they could protect the people, they won't store it away in a safe place and it's of no use to the SDU?
MR MOLOHLANYE: Thank you Honourable Member, but I believe that the reason was given by the applicant that he was afraid that these weapons might end up in wrong hands where people might use them for other purposes other than to protect the community as they wanted to, that is the reason.
MR MOLOHLANYE: Chairperson, in this matter we are talking about a case where a person has been called in front of the court where a conviction is possible therefore a person might not associate himself with that offence knowing that she took the firearm while knowing that it was a firearm.
CHAIRPERSON: Why? Why not say I didn't know it was a firearm? What's the point of saying "he gave me a parcel, I opened the parcel after a certain amount of days, I discovered it was a firearm so from then on I'm guilty of an offence." Please.
MR MOLOHLANYE: Chairperson, this is a thing that happened in a township, it was time of a civil war in this province, if I may say so, it was a time of struggle among the people in the townships. If a person comes to you and gives you a firearm, they give you a parcel and then you think that you don't know what the parcel is, staying in the same area, knowing the person very well, he may be friend, being a boyfriend to your girlfriend or to your friend, Chairperson I think it is clear from the evidence given by this person that she knew from the first instance that it was a firearm.
MR MOLOHLANYE: And further, Chairperson, in evidence I think the applicant stated that he gave or he placed different weapons at different persons for safekeeping at the time. I thank you. I hope that answers your question, Chairperson.
MR MAPOMA IN ARGUMENT: Thank you Sir. When I consulted with them this morning they said they would leave it to the Committee, in fact they were not eager to testify either but I confirmed that after the evidence was led and there were some areas of concern that I must call one of the witnesses to testify but they said they are going to leave it in the hands of the Committee. Thank you Sir.
Perhaps I may just, Chairperson, for what it's worth I'll just raise some concerns that I've got in the application of the gentlemen? Chairperson, it concerns that at the time the ANC did not have a policy to attack policemen when the applicants indulged in this exercise but if for a moment one may understand the local situation that they were confronted with, that ...(indistinct) at local level.
Perhaps even if one understands that the circumstances necessitated them to disarm the police, the purpose has been made clear by the applicant that his purpose was - their purpose was to disarm the policemen and in fact the applicant has been involved in a number of operations of disarmament where he has made it clear in what circumstances were the police killed and those circumstances where police were killed previously, this particular instant did not feature because he said they would kill a policeman who presents some resistance to the operation and in this particular case, there is not a centile of evidence to suggest resistance on the part of the deceased person. It therefore leaves the applicant with no explanation exactly as to why was the deceased killed. Those are my concerns Chairperson, thank you.
MR SIBANYONI: The witness you called, Mr Mapoma, told this Committee that the deceased tried to reach for the briefcase and it is known that in that briefcase there was a pistol. What is your comment about that? Is it not that that may have influenced them to act in that way?
MR MAPOMA: It may well be, Chair, but the applicant in his own words challenges that evidence. In fact he labels that evidence as incorrect. Under cross-examination his evidence was disputed by the applicant so it makes ...(intervention)