MS MTANGA: Chairperson, we continue with the application of Mbele, Sibosiso Richard Mbele and we've got two witnesses who will be giving evidence. The first one is Prof Botha, the medical expert who gave evidence in court at the trial of Mbele and the second person is the implicated person, whom we've now subpoenaed to give evidence, that is Bheki Mkhize.
MR BOTHA: I have an MBChB from the University of Cape Town. I am a Master of Medicine in Anatomical Pathology from the same university and I have a fellowship, the College of Medicine of South Africa, also in Anatomical Pathology. I am registered with the South African Medical and Dental Council as a Specialist Pathologist. I registered as such in 1975 and I am currently Chief State Pathologist, Professor of Forensic Medicine with the Free State Province and the University of the Orange Free State. Prior to that I was Chief State Pathologist and Professor of Forensic Medicine at the University of Natal for about 6/7 years and prior to that I was Chief State Pathologist in South West Africa, Namibia, 1986/1987. From 1979 to 1985, I was in private practice in Johannesburg and before I commenced private practice in Johannesburg, I was a Senior Lecturer and Senior Pathologist at the University of Cape Town and at Groote Schuur Hospital.
MR MTANGA: Thank you, Mr Botha. I will now proceed to the matter at hand. You are appearing here today to shed some light on the medical evidence that we have regarding the murders of three people, the first person being Thabo Joseph Lekatha, the second person Zama Kadmus Mthimkulu and the third person being Nkwanene Mcdonald Plakie. You carried out post mortems on their bodies in 1994, if I'm correct and your affidavits will be from page 21 of the second supplementary bundle.
MR MTANGA: For a brief background, Prof Botha, we have evidence of the witness, Mrs Judith Booi, which appears from - I'll check the pages now - from page 83. This is the evidence that is the cause of concern for us today here. Ms Booi testifies that at the time the bodies were exhumed, as one of the people who went to identify the bodies at the exhumation, she had identified some parts in the body that were missing, for example the left foot and the left arm of her brother and one foot of another victim, whom we couldn't identify who exactly he was. She further testified that there were obvious or visible assault wounds on the persons and that the evidence we have before us, the evidence of the applicant is that these people, the three bodies, were only shot once on the head.
We have now called you today to shed some light on the evidence contained in the affidavit and the evidence you've given in your testimony in court at the trial of Mr Mbele. Starting with the first body, which is identified as body number 205/94...(intervention).
CHAIRPERSON: But I thought - that's the problem I was trying to work out whether we were going to and I understood from the applicant's counsel that he had no objection, that as far as he was concerned there was no dispute about the identification, but now you say you don't know what it is.
MR LAX: Chair, just to be of assistance, we know that the one body is that of Mr Lekatha, that's the last one as we can look at it, because there is an ID affidavit attached to that one, although the sequence doesn't necessarily follow, that's 203/94. I see suddenly that the serial number is quite different, so it may not actually help us at all. Perhaps our investigator, Mr Mbatha could look into that matter while we proceed with the evidence, Chair and see if he can sort it out from the docket.
MS MTANGA: Thank you, Chairperson. Prof Botha, I would like to start with the body identified on page 21, order number 205. Your evidence indicates that the person suffered or sustained injuries, consistent with penetrating wounds, present over the suprasternal notch and he had fractured ribs and there were further scavenger damages found on his body, head, neck and thumb, and the left arm and the right leg.
MR MTANGA: What I would like to obtain from you, Professor Botha is whether, can you recall what, in your opinion, could have caused these penetrating wounds that you've indicated and that you've just confirmed.
MR BOTHA: Mr Chairman, there were these two wounds over the suprasternal notch, they were the only signs of injury other than the rib fractures that I found, excepting for the putrefactive and scavenger damage present. Because of the putrefactive process, the wounds were not all that typical in the sense that the edges had started to disintegrate, they weren't fresh wounds and easily identifiable, as such, because the post mortem interval, by the time I did the examinations, approximately two months. I nevertheless did find evidence of blood over the pre-vertebral fascia of the cervical spine, that's the soft tissue overlying the anterior cervical spine and apart from the rib fractures, I also found some putrefied blood in the upper part of the thoracic cage. The features would suggest penetrating wounds of the neck area, resulting in local bleeding over the anterior cervical spine and the upper chest. However, because of the putrefactive process, it was not possible to determine the wound tracts, or which organs had been injured, but at that site, there are numerous potentially fatal possibilities, if one takes into account the vascular and other structures at the root of the neck.
MS MTANGA: Prof Botha, as a result of your observations of these two wounds on the neck of this body, on page 59 which is your court testimony, you concluded that these two wounds on the neck of this body caused the death of this person. Can you confirm that?
MS MTANGA: The evidence of the applicant that we have before us, is that all these people were shot in the head while they were lying on the floor. Could you find any evidence on this body which could confirm that there could have been a gunshot wound on the head of this particular victim?
MR BOTHA: Mr Chairman, the skull was stripped by me of any residual tissue. The surface of the skull was carefully examined, the skull was opened and prior to performance of my examination, X-rays were taken. There was no evidence of any gunshot wounds that I could find in this particular individual. I'm absolutely certain that there was no gunshot wound to the head, what I cannot exclude is the possibility of a gunshot wound where the wound track had perhaps passed through soft tissue only which had in the interim undergone putrefaction and where this wound was not longer discernible at autopsy, but certainly there was no gunshot wound to the head.
MS MTANGA: Prof Botha in the light of the evidence of the applicant that he personally shot these people on the head and he confirmed that his gunshot wounds caused the death of these people, in the light of that evidence, is there a possibility that the composition of the tissue would cause X-rays not to pick up any gunshot wound on the ...(intervention).
CHAIRPERSON: Not to the head. The doctor has explained that he is absolutely convinced there was no gunshot wound to the head. There may have been gunshot wound to soft tissues elsewhere, which would not be discernible now. I understand that to be your evidence?
MS MTANGA: Thank you, Chairperson. Professor, we now move to the next affidavit on page 27. That is of body number 204. Here you indicate that there was a gunshot wound to the head and that there was also scavenger damage and associated tissue destruction observed over the head, the back, both arms and both lower legs. The left foot and the left hand were missing and the areas of the scavenger injury exhibited partial ...(indistinct) and bone fragmentation, do you confirm that?
MS MTANGA: As I have indicated to you earlier on, the victim was of the view that the missing left hand and left foot were due to mutilation of the body. What is your medical opinion about that, what could have caused that, what could have happened to the hand and the foot that was found missing?
MR BOTHA: Mr Chairman, firstly the position of the absent tissue, the left hand and the left foot, these are parts of the body that are normally exposed, in other words not covered by clothing and lying in the open. Very commonly do we find tissues at these sites missing because of scavengers. Secondly because of the possibility of sharp injury, I specifically examined these sites to see whether I could find any evidence that the left hand and left foot had been removed with a sharp instrument. One must bear in mind that the plane of cleavage between the forearm and the wrist as well as the lower leg and the foot are complicated structures. There is not clear line of cleavage. If you had to take a knife or a saw or an axe and just cut straight through, you're going to end up with splinters of bone, nicks in the bone and cuts in the cartilage. What I did find was fragmentation of bone at the site consistent with the bones have been gnawed by a scavenger and I am certain that the absence of the left hand and the foot, as well as a major part of the soft tissues of the limbs and over the head, are the result of scavenger damage. I could find nothing to support that the tissue had been deliberately removed with an instrument in the perimortal area.
MS MTANGA: Thank you, Professor. We now move to page 33, body marked 203/94. Here you indicate that the body had fractured mandible, multiple penetrating wounds of trunk with associated injuries to the heart, pulmonary artery and liver and then on page 34 you list about 10 wounds, incised wounds of different sizes and this is also confirmed on page 52 of your court testimony where you indicate that those were ten incised wounds which were all found on the chest area. Do you confirm this?
MS MTANGA: Further on page 53 of your court testimony, you testified that the pattern in which these wounds occurred, such as that the deceased sustained some or other injury which perhaps simply incapacitated him and he was not able to either defend himself, or to flee.
MR BOTHA: Mr Chairman, the pattern of injury which was entirely confined to the anterior surface of the trunk and the absence of any defensive injuries over the hands and the forearms would suggest that the victim had perhaps been pinioned or was for some reason or other not able to move or take evasive action or defend himself.
MR BOTHA: Again the situation I have just suggested, normally if a person is fleeing or is capable of moving and avoiding injury, one tends to find a fairly random distribution of wounds. The fact that they're all concentrated over one area suggests he was not capable of taking such evasive action.
MS MTANGA: Again in the testimony of Ms Booi, she had indicated that the skull of this body had been opened and to her, in her evidence, she suspected foul play. On page 35 of your affidavit you indicate that the skull had been previously opened. Can you explain how would this have occurred?
and the top of the next page, I said the skull had previously been opened. What I suspect happened here is that after the bodies were removed to the mortuary, I think at Ixopo, prior to the District Surgeon arriving, the police probably commenced dissection. The skull had been opened in the normal fashion that we use for examination of the inter cranial contents and the sutured incision over the anterior surface of the trunk was also a typical post mortem incision with resuturing. I suspect that these had been opened, the District Surgeon arrived, refused to carry on the examination and the cap of the skull was simply put back in place and the chest and abdomen which had been opened, were resutured. Furthermore, the brain tissue was still present within the cranial cavity. I mention this specifically under paragraph 6 on page 35, where I said:
MS MTANGA: Finally Professor, on page 47 of your court testimony, you indicated that X-rays were performed and no bullets or any other foreign objects were found on the body. That was when the radiologist examination was been carried out. Can you just explain the procedure as to when and why are these X-rays carried out?
MR BOTHA: Mr Chairman, it was routine procedure at the State Mortuary in Bell Street in Durban to perform complete X-ray studies of all the bodies that had allegedly been involved in shooting incidents. The Forensic technologist would come in at approximately 6 o'clock in the morning. The bodies would be stripped of any clothing that was present as this might interfere with the X-ray procedure. The bodies were then fully X-rayed and the X-rays were then presented to the person performing the autopsies. All three of these bodies were X-rayed in this fashion and there was not evidence of any residual projectiles or other foreign objects within the tissues of any of the three cadavers.
CROSS-EXAMINATION BY MR MATTHEWS: Just one question Professor, on page 54 of the bundle, you find that the gunshot wounds were consistent with those of a high velocity projectile. Would this be consistent with the use of a G3 for instance?
MR BOTHA: Mr Chairman, I qualified that I think on the next page. It wasn't possible to accurately measure the entry wound over the vertex because of disintegration of the skull. That 9mm is an estimate, but the extensive damage to the skull, the multiple radiating fractures as well as the injuries over the exit area on the left side of the face, is in fact consistent with a high velocity firearm, such as a G3, which is a 7.62 by 51 or 52 mm round. One other possibility is that the injury might be due to a hand gun using soft-nosed ammunition, which might also cause much more extensive damage to the bony structures of the head, than a conventional round such as a full metal jacketed 9 mm parabellum. Those are the two possibilities, of the two, I believe the high velocity military type injury is the more likely.
MS MTANGA: 203, that's on page 21, sorry not 21, the last one, page 33, is the body of Zama Mthimkulu. Page 21, that's body number 205, it's the body of Joseph Thabo Lekatha and the last person page 27, that's body number 204, it's the body of Mcdonald Plakie. Can I proceed, Chairperson? The next person I wish to call is Bheki Mkhize.
CHAIRPERSON: Now he will be some time, I take it. I'm asking this because it is very nearly 11 o'clock, which is the time we normally adjourn. I don't know whether you would prefer to take the adjournment first and then continue his evidence uninterruptedly, or whether you'd like to start him and have him for say 10 minutes and then take the adjournment.
MR MKHIZE: Some of the incidents which occurred, or that he participated in them, I wasn't present. I would hear from other people of the community telling each other about what he did and sometimes people will come and report him to the chief of the area, like raping of the youth and these were the incidents he usually participated in.
MS MTANGA: As you have heard the evidence of the applicant, he testified that you were his Commander. Now can you confirm this and explain to the Committee who else constituted the unit that you belonged to?
MR MKHIZE: I was never a Commander. I was never trained. I don't even know any unit. There was never a unit under myself. I was never trained. I don't know how to use a gun and I've never used a gun before.
MS MTANGA: I would like to refer you to an affidavit deposed by you on page 1 of the secondary bundle, supplementary bundle, that's bundle B, page 1. Do you confirm that this is an affidavit deposed by you?
MS MTANGA: Mr Mkhize, I'd like to go through evidence, the different incidents that the applicant is applying for, in which he alleges that you had given orders to him. The first incident on the first bundle, page 12, that is the affidavit of the applicant, page 12. The applicant has applied here for abduction and killing of a person from Thenza Kraal and he alleges that this person came from Mazabigweni Reserve and they'd received information that this person had been spying on IFP people, on the camping of the IFP people. Do you know of any - of this incident?
MS MTANGA: Thank you, Chair. A further incident that the applicant implicates you in is on page 13, the abduction and murder of a male youth from Nokweja, that took place in 1993. The applicant alleges that you personally ordered them to go and abduct this male person and you further ordered them to take him to a mielie field up to the garden where he was instructed to shoot him by yourself. The reason that he was shot is because he was an ANC member and he lived in an area near Chief Dlamini's kraal and Mr Kamane's kraal. Do you know of this incident? It's page 13 Chairperson.
MS MTANGA: We move on to the next incident, this is the murder of Musi Zuma. The applicant alleges that Musi was killed because he was - recruited people to join the ANC and he had also blocked the road in your area, at Boveni that is. He had blocked the road with scrap cars and busses and school kids couldn't go past the road, and he was compelling people to join the ANC by doing this and that you gave him instructions to go and destroy everything they could find on the premises and that they should find Musi was leading this gang of ANC people who were compelling people to join the ANC. Do you know of that?
MR MKHIZE: Mafutalenja was the first person I met when I arrived at Boveni. We knew each other. He was a member of IFP and he was helping the community of Boveni to transport them to come and join IFP.
MS MTANGA: We now move on to the next incident which is the murder of the three Transkei soldiers, who were also murdered in 1993. The applicant alleges that you gave him the orders to carry out a roadblock in the area of Nokweja and Umzimkulu. Do you know about this?
MS MTANGA: Do you know of an attack on Mr Khumalo who was a principal at Port Shepstone and was also an IFP member, who was attacked in the company of a lady teacher? This also took place near High Flats?
MR MKHIZE: What I would like this Committee to understand is that I was a member of the Committee in the organisation, in the area of Umzumbe, therefore if ever there were conflicts outside that area, I never got to know about them.
MS MTANGA: According to the applicant, as a result of these attacks that I've mentioned to you, you ordered him to carry out this road block on the road at Nokweja and Umzimkulu, between the area of Nokweja and Umzimkulu and when they found these three soldiers who were from the Transkei and had killed them, you ordered them to go and hide their bodies in the bushes as they had left them on the road. Do you know about this?
MR MKHIZE: I heard when soldier explained because he was that type of a person who would come back after he had participated in a certain incident, he will come back and brag about it and talk about it. I didn't even know how he identified those soldiers as soldiers.
MR MKHIZE: I met him at Nkosi's place. He will go and do something wherever and then come back and talk about it and I was there, I was at Nkosi's place when he came in. There were a lot of people there.
MS MTANGA: Do you recall an incident where Mr Khumalo had been asked, or did you hear of any such incident where Mr Khumalo had been asked by Mr Msimango to kill Mr Gwabe, who turned out to be an IFP member and also a friend of yours? Do you know of any such attempt on Mr Gwabe's life, who was your friend, in 1993?
MR MKHIZE: The applicant, Soldier Mbele, knew me and we never agreed in any idea or opinion, to such an extent that if I was at Boveni, he'd be at Mazabigweni and if I'm at Mazabigweni, he'll be at Boveni.
MS MTANGA: How would he have known that you were friends with this Gwabe from St Faiths? My understanding of his evidence and your evidence, he resided at Mazabigweni and you were at St Faiths at this time and Mr Gwabe resided at St Faiths, how would he have known that you and Mr Gwabe were friends?
MS MTANGA: The applicant has also given evidence that as a result of this conspiracy by Mr Msimango to kill Mr Gwabe who was your friend, that is Mr Gwabe was your friend, you ordered the applicant to kill Mr Msimango and you further ordered them to take, to remove his private parts and these were put in a plastic bag and they were given to you. What do you say to this?
MS MTANGA: The last incident in which it is alleged that you gave orders, it's the assassination of Regie Radebe, page 29. This took place in 1992. The applicant alleges that Regie was a member of the ANC and his killing was the result of an order given by Chief Kholengweni. Do you know Chief Kholengweni?
MR MKHIZE: I have already mentioned that I was a Peace Committee member inside the organisation itself. I've never been in a meeting where there were ANC members or any members of any other organisation.
MS MTANGA: Do you know of any Peace Meeting that had taken place, which was attended by Chief Kholengweni and ...(indistinct) and Richard Radebe at the same time? Do you know of any Peace Meeting? This was in 1992. Can you recall any such meeting?
MR MKHIZE: I do remember that there was such a meeting and I also do remember that after that meeting, the chief was arrested. I don't know what happened there because I wasn't present in that meeting.
MS MTANGA: According to the applicant, the day before this Peace Meeting, he pointed out that he would meet with Regie Radebe and that he would shake his hand, so that you and the applicant and other people who were present at the time, Chief Kholengweni was saying this, would be able to identify Regie Radebe so that he could kill him, because Chief Kholengweni felt that the IFP officials were dying and yet ANC officials were not dying, so it was time that ANC people died as well. Do you know of this allegation?
MS MTANGA: The applicant further says that on the day of the meeting, you disappeared from the meeting and when you came back later, or you came back a heavy person and you reported that you had finished with Richard Radebe. What do you say to this?
MR MKHIZE: I was never insane because I know I was never in that meeting, I only heard about the meeting afterwards and I also heard that the chief was arrested. I only heard about this, or I only read about this in the newspapers and the news on radio.
MR MKHIZE: I heard on the news on the same day he passed away. I was with someone else who's now a chief. We just arrived there because we came from town, we had bought a couch. As we were moving in that couch, we heard about this, but I didn't know the person myself.
MR MATTHEWS: You know, Mr Mkhize, the majority of us who are sitting here today have been dealing with these types of cases for many, many years. It's almost trite among us that the SPUs were all armed with G3s and Mossberg shotguns, which were issued to the troops. Is that not so?
MR MKHIZE: I am referring to my brothers, I'm not referring to the people you heard of when you go around listening to evidence like this. My brothers never had guns. They will only have guns whenever Induna or the chief had given them and they will take them back. I don't know anything else.
MR MATTHEWS: You see I'm just putting it to you that the reason why the applicant was reporting all these incidents to you was he was reporting back to you what had happened. That's the way you knew about it.
MR MATTHEWS: Can you think of any reason why the applicant specifically picks you out, specifically in the light of the fact that you say you were never trained and you're the most unlikely candidate to be a Commander, on your evidence. Why would he pick you out and not his proper Commander?
MR MKHIZE: I wouldn't be able to know that but anyone, any person can know my friends, because I used to be with him or around him a lot. Therefore Soldier may have seen us together and he will know that he's my friend.
MR MKHIZE: I think the reason Soldier is implicating me is because he wants me to feel the pain he is feeling as he is behind bars because I was the one, or I also participated in having him being arrested.
MR MATTHEWS: Mr Mkhize, I want to put it to you that Mr Mbele is telling this Committee the truth. You indeed were the Commander and you indeed were the one who gave the instructions for all these killings.
MR MKHIZE: I would go to the chief's kraal to look after the IFP members who had sought refuge there and also to try and resolve conflicts between IFP members who were there at the chief's kraal and also the mother to my child was staying there.
MR MKHIZE: We used to talk to the parties who were involved, or the members who were involved who were in conflict, who were IFP members as well and we will try and resolve whatever conflict is there between them and the chief will be present sometimes.
MR LAX: You see, what I don't understand is, maybe you can explain this to us is this. Here you have a situation where, according to you, this applicant is terrorising the community. You're the man whose jurisdiction it is to sort out the problems between IFP and IFP. He's an IFP man, he's boasting in the chief's kraal of committing acts and offences, even against IFP people, who you've told us about and you don't do anything about it. You can't explain to us what you did about it, so what did you actually do?
MR LAX: Did you report the matter to higher IFP authorities to say: "Here is an IFP man in our area, armed with G3's intended for Self Protection Units. He's running amok in the area. Please come and do something about it." Did you say anything to your fellow IFP comrades to do that?
MR MKHIZE: Myself being a minor, or I didn't have a position, I reported the matter to Khumalo who had a higher position than mine, who was going to take it up higher. I don't know whether he did or not.
MR MKHIZE: Soldier will terrorise people, anyone and everyone. He will go to the chief's kraal and harass people there and when people come to me, reporting these incidents, I will report them to Khumalo. We were all scared of this man. Whatever we were doing, we were hiding.
MR MKHIZE: I wouldn't be able to say whether he had reported him or not, but he used to speak to me and tell me that he wasn't at rest and he will report to me that Soldier is raping females and he is also shooting dogs in the chief's kraal.
MR LAX: Now in this long application, the applicant has indicated that he's acted together with a number of people in a fairly organised kind of way. Were you aware that all these people were acting with him as part of an SPU?
MR MKHIZE: If you're referring to SPU Commander, I don't know. My two brothers were SPU and I don't know their Commander. I don't even know whether the SPU has a Commander but I do know this far that they were SPU members.
MR LAX: Well, did they never tell you who they reported to? Did they never tell you who instructed them to go to the school and who issued them with firearms when they went to go and do their guard duties? I mean, you went there to check on them, that's what you've told us. Are you seriously telling us you didn't know who was in charge of them?
CHAIRPERSON: But you've told us, as I understand your evidence, that on occasions they were issued with G3 rifles to carry out their guard duties and when they concluded them, they handed the rifles back.
MR MKHIZE: Yes, I didn't mention that. I don't know whether the chief, I can call the chief Commander, because he was the one who was giving them the G3's. I don't know whether he is a Commander or not.
MR MKHIZE: I am not certain. I think they can explain about this, as to whether they were returning the guns back to the chief, or to someone else, but all I know is that they told me that the chief gave them the guns to guard the schools.
CHAIRPERSON: Mr Mkhize, you would know where your brothers went for training. Surely they would have told you, "we went to such-and-such a place, this is what it was like." They would have told you all that detail because from what you've told us, you were close enough to your brothers to go and visit them when they were on guard duty, not so?
MR MKHIZE: Yes, we were very close. In fact we are still very close, as family members, not as trained persons. I am not connected in whatever they are trained in. Whenever I was with them we were chatting about family matters.
CHAIRPERSON: Isn't it almost a family matter to say: "I was sent up to Richard's Bay and we stayed in tents there"? Isn't that the sort of thing they would tell you when they came back from training? That they showed us how to take a rifle to pieces.
MR MKHIZE: Maybe in other families, such things are family matters, but in my family, in Mkhize family, we don't talk about this because to start with, I am a religious person and I don't talk about guns, maybe that's why they didn't tell me.
MR MKHIZE: What I said was they received the G3's from the chief. He is the one, the chief is the one who was distributing them. If ever he was deploying someone to go and guard certain premises, he will issue that G3, but I didn't say that the chief was a Commander.
MR MKHIZE: If that is so, if a Commander is someone who's distributing guns and taking them back, then maybe you can refer to him as a Commander, but I don't know that. I personally don't know what a Commander is.
DR TSOTSI: Yes and the point is that a Commander doesn't necessarily have to be trained, is that right? If he's given authority over, or command over people, you know, the issue of arms and so on, that type of thing, he does not necessarily himself have to be trained to be a Commander, or he did not necessarily have to be trained to be a Commander. What do you say to that?
MR LAX: Just one last aspect on my part, Chairperson. You told us that you were aware of the incidents involving Mr Magobane and Mr Khumalo and another lady teacher in the vicinity of High Flats. You said you had heard about those incidents.
MR LAX: Well did you hear about the vehicle that was responsible for these attacks, because all these attacks are linked to one vehicle, a Toyota Corolla Sprinter, a white one, apparently with Transvaal number plates. Those are what used to be referred to as Number T number plates, do you remember that? Do you remember hearing about that? Or don't you remember anything about it?
MR LAX: You see, the applicant says, and it's here on page 17 of his long affidavit, which is in bundle 1 of these papers, he says that he read in the newspapers that these people were being eliminated at High Flats. He then decided to board a taxi to Jollevit in order to confirm whether Khumalo died or not. Then he goes to Jollevit and he hears about all of this and then eventually he realises Khumalo is still alive and he hears about this Toyota Sprinter with the Transvaal number plates. You've got no recollection of that at all?
CHAIRPERSON: The time now being quarter to one, we'll rather take the adjournment now and give you time and start at say quarter to two, if that suites, I don't know what arrangements there are for feeding. Quarter to two, well, we'll see how we go. If we're ready at quarter to two we'll start then, otherwise at 2 o'clock.
MS MTANGA: Yes, Chairperson. I have consulted with the victims, they have no further evidence to give against, or to respond to the evidence given by Mr Mkhize, so that ends my evidence. I won't be calling any further witnesses.
MR MATTHEWS IN ARGUMENT: Mr Chairperson, if I understand the Act correctly, it requires that the applicant must satisfy the Committee that he has complied with all the requirements of the Act and secondly that the act, omission or offence to which the application relates, is an act associated with a political objective, committed in the course of the conflicts of the past, in accordance with the provisions of (ii) and (iii). Sub-sections (ii) and (iii), specifically more (iii) as to whether a particular act, omission or offence is an act in association with a political objective, which is decided on a number of criteria. Obviously these criteria are well know to Mr Chairman and the Panel, far better than what we could try and enlighten Mr Chairman and the Panel about.
There is one aspect, I submit, is very important in this case. That appears at page 63 of the original bundle of documents. It's in fact a confession made by the applicant to a Magistrate, the actual confession starts on page 53. It is a statement made by the applicant on the 22nd day of May 1994. This is two days after he was arrested. He was arrested on the 20th of May 1994 between Narmouth and Ulundi while he was an occupant of a motor vehicle, which was stopped by the police. In his possession were found certain arms and ammunition. Now, as one can see from this statement made to the Magistrate, I speak under correct, but I think it was even before the Amnesty Act had been passed, the applicant there talks about the instructions that were given to him by his Commander and the fact that the so-called Mr Mkhize was his Commander. So I submit that that is a strong indication and a safety clause, if we could put it at that, which tends to show that the applicant does not now, since lodging his application with the Amnesty Committee, not thought up some Commander from whom he supposedly got instructions.
Mr Chairman, we have heard the evidence of Mr Mkhize, the Commander, the alleged Commander. I would submit that he's being very evasive about certain aspects. He's distancing himself quite clearly from the SPUs and I submit that this Committee should in fact find that indeed he was giving instructions as the applicant has testified.
Mr Chairman, if I may just go through the incidents for which amnesty is being asked, the first one being the abduction and killing from Thenza's kraal, I submit that clearly this was done with a political motive. Clearly this was done with instructions. There's no other ...(intervention)
MR MATTHEWS: I'm on page 12 of the papers, from the original bundle and this is the affidavit of the applicant. That is the first incident. The second incident is the abduction and murder of male youth from Nokweja.
The second incident is the murder of a young male from Nokweja. Here clearly it was on the instructions of Bheki Mkhize, who instructed him to take him down to a mielie field where he was told, where they told him - the instructions were to shoot him.
The murder of Musi, the ANC recruiting. It was clearly the instructions given to the applicant and Musi Zuma was in fact recruiting ANC persons. Whether or not this was true or not, I submit is not the issue. He received instructions to go and destroy everything that he could find on the premises. Clearly the G3 rifles and the .38s were weapons that were given to this group of persons who went off to commit this act.
The next incident, the murder of Dlamini, there's some dispute as to whether he was in fact an IFP or ANC person, I don't think that matter has been resolved, but it's clear again that this incident related out of the conflict between the IFP and the ANC and carried out on the instructions of Bheki Mkhize.
The next incident, the murder of the three Transkei soldiers, is connected to this motor vehicle, as you have correctly pointed out, that it was supposedly involved in an attempted killing of a Mr Khumalo, a principal at Port Shepstone, as well as other incidents. The setting up of the roadblock was clearly on the instructions of Mkhize. The killing of the three Transkei policemen was clearly a political matter. In this regard, maybe one can refer to the judgment of His Lordship, Mr Justice van der Hyden, where, if you'll just bear with me I'll get to the place, specifically on page 50 where he says that the crimes, page 50 from line 5, the crimes he's been convicted of:
"must be seen against the political violence and strife that has been experienced and is still being experienced in the province KwaZulu Natal."
There's not conclusive evidence that the three deceased had in fact participated in the attack on the accused's community, at the very best for the accused, there was a suggestion that they could have been the killers of a taxi driver, but again I think, taking into account the views of His Lordship Mr Justice van der Hyden, who in fact had presided over the whole trial, I think he's quite correct in coming to the conclusion that this was an illustration of the shocking political intolerance in KwaZulu Natal. Clearly I submit that the killing of the Transkei soldiers was a political act. It was perceived that the Transkei at that stage, was the launching base for attacks on the IFP.
The next incident, the murder of Anthony Mzimande, was clearly also on the instructions of Mkhize, after a report was received that an ANC members, armed with AK47's were at a certain house. Again I submit that this clearly emanates from conflicts of the past and have political motive.
The ambush on Magobane, an ANC official, was clearly also, Magobane was an ANC official for the Ixopo area, this was clearly an attempt by the applicant and others to kill him, nothing other than a political assassination, but I think I must bring to your Panel's attention that the applicant himself says that:
The murder of Msimango, I submit clearly comes from Mkhize. This ...(indistinct) clearly was Mkhize's friend and clearly he gave the command that Msimango should be killed because he was an ANC member and that the applicant, together with the three Dlaminis, had killed Msimango.
Page 27, the murder of Mr Hlangise. The information given to the applicant was that Hlangise was fetching ANC members to kill IFP members. Clearly they went out hunting for Hlangise. That the applicant was in fact present when Hlangise was in fact shot in the bush.
The guard duties at Ndlulie's home in Stanger, at ...(indistinct) and a statement to Insp Ngwalo, as well as the assassination of Regie Radebe, it would not appear from those specific incidents that there was indeed any positive act on the part of the applicant for which amnesty should be granted. I don't think he has in fact done anything illegal pertaining to these specific incidents. If he hasn't done anything illegal, well then there's no need for him to be granted amnesty.
Mr Chairman, that is all I wish to say as regards this applicant. There have been a number of discrepancies in the applicant's testimony and the statement, which he made. It is quite understandable when a statement of this nature is being taken from him, that there would be differences or slight discrepancies, but I submit that they are not such that one can say that the applicant was a lying witness.
MR MATTHEWS: According to the applicant, all three of these soldiers were shot to the head. If I understand correctly what Prof Botha's saying, he cannot exclude gunshot wounds to soft tissue areas, because of the state of the bodies after being exhumed after two months. What he in fact did say was that one of the bodies did not have, he was positive, did not have a bullet wound to the skull.
MR MATTHEWS: Yes. I can't see any reason why the applicant would wish not to tell the truth about that. Obviously on his recollection of events, all three had been shot. It is possible that they could have suffered other injuries, but I don't submit Mr Chairman, I submit that I don't think that mere fact is sufficient to say that he is not making a full disclosure. Clearly to him, all three of the persons had in fact been shot. I don't think it is true, however, that body part etc were removed from these.
MR MATTHEWS: That would be an offence yes, but I really can't see how one would make a false statement with a political motive. In other words, I'm basically conceding that I don't think that is something on which one can be granted amnesty.
MS MTANGA IN ARGUMENT: Chairperson, my submissions will touch on each incident, as my learned friend has done. In regard to the first incident, that is the abduction and the killing of the person from Thenza Kraal. My submission is that the
applicant should not be granted amnesty on the grounds that he carried out that operation without any orders from the organisation. It was not an authorised operation and this is clearly indicated on page 12 of his affidavit, of the bundle where his affidavit is, where he indicates that at the time this occurred, the Commander and the chief were not present, were not there. It's something he had carried out on his own, without any instruction from them and there's no indication in that affidavit that he had obtained an order from his Commander.
Regarding the second incident, that is the abduction and the murder of the male youth from Nokweja during 1993, that I will leave in your hands Chairperson, because it does indicate there that he was given instructions by his Commander Bheki Mkhize to carry out that operation.
Regarding the murder of Musi Zuma, the wife of the late Musi Zuma gave testimony before the Committee indicating that she and her husband, Musi, were IFP members. They had joined IFP at that time. Even though we were unable to obtain confirmation of Musi's IFP membership, Mrs Zuma has tendered her IFP card and this is also confirmed by the fact that Bheki and other victims have confirmed that their area was an IFP stronghold, no person was an ANC member at that time around them, they were all IFP and they had followed their chief, who was also an IFP person and I therefore, in my submission, dispute that Musi was killed because he was an ANC member and it is my submission that the applicant has not given any concrete evidence to point out that Musi was indeed an ANC member, who had been compelling IFP people to join the ANC as he had alleged.
I then move to the next incident on page 16. That is the murder of Mafutalenja Dlamini. I would like to refer the Committee to the evidence of the Bekhi Mkhize. Even though he has denied some of the allegations by the applicant, in his evidence he did confirm that he knew Mafutalenja Dlamini and he was an IFP member whom he had met at Boveni, at the Boveni area and Mafutalenja Dlamini had assisted them. He had assisted the Committee to transport IFP people and he had been known to be an active person within the IFP and therefore there cannot be a political motive by the applicant, who was an IFP person, to kill another IFP person, as this person was a well-known IFP person.
On the murder of the three Transkei soldiers on page 17, it is my submission that the applicant has not given full disclosure regarding the offences he carried out against these people. To be specific, in his evidence, he testified that the three soldiers died from gunshot wounds, each one of them had been shot by him personally in the head whilst they were lying down. That was his evidence.
CHAIRPERSON: Was it that, or did he say that he shot two of them and somebody else shot the third? The evidence was that all three were shot through the head, but my recollection is that he says he shot two and somebody else did the shooting...
MS MTANGA: Thank you Chairperson, maybe you're correct there, but the essence of his evidence was that they, all three soldiers died from gunshot wounds in the head, that were on their heads and this is in total contrast, or contradicts the evidence of the post mortem - this contradicts the evidence contained in the post mortem report and also the evidence we had today from Prof Botha and I would like the Committee to - it is my submission that the applicant hasn't complied with the Act in that he hasn't given full disclosure about what actually took place on that day, on these three people and therefore he should not be given amnesty.
The next incident, the murder of Anthony Mzimande. Again here the applicant was not given, does not indicate, he didn't give evidence to the effect that he was given an order by his Commander to carry out this operation and this is clearly evident on page 1 of his hearing transcript, that is the first hearing transcript that you received, in the cross-examination by the Evidence Leader then, Zuko Mapoma, at page 41 to 42, where he had been asked whether it was necessary to kill Mr Mzimande and his response to that question was that he had reacted to the situation then, because the victim had appeared to have been escaping and he didn't know what to do and he at that point decided to shoot. This wouldn't be consistent to anyone giving orders to kill anyone. He didn't indicate at that point that he had been given orders to kill this person. He only shot him because he was trying to flee. I therefore submit on those grounds that amnesty should not be given to the applicant on the grounds that there is no political motive.
Then the next incident I would like to deal with is the murder of Mr Lungise in 1993 on page 27. My understanding of that application, the applicant is applying for the abduction of Lungise, not of the murder. This is pointed out in his evidence, on the transcript again, page 49, he clearly indicates he only participated in the abduction, not in the killing. Again in this incident there is no indication that he was given an order by Bheki Mkhize, whom he said was his Commander and not anywhere in his evidence does he indicate that Bheki had given him an order to abduct this person and I therefore would like to argue that on these grounds, that the applicant shouldn't be given amnesty for that incident, because he had no authorisation from the organisation to carry out that operation.
And finally, no this ends my submission Chairperson because the applicant indicated that he won't be applying for any, he committed no offence in regard to the murder of Regie Radebe, which I also agree with.
MS STRETCH IN ARGUMENT: Chairperson, I'm not here to oppose the application. I am however here to comment on the credit-worthiness of Bheki Mkhize. I briefly wish to comment as follows. The fact that the applicant did go on unlawful frolics of his own, no political motive being attached, therefore Bheki Mkhize is being honest when he says that the applicant was a problem in the community and that he had to be reported to the South African Police Services. Therefore, the applicant would have had a motive, even at the time of making his confession, to falsely implicate Bheki Mkhize as a person who at times gave him instructions to commit the offences he committed.
Chairperson, Bheki Mkhize gave evidence in a forthright, straightforward manner as to his role in the IFP and there is no evidence, except from the self-confessed liar, being the applicant, to gainsay that.
I accordingly submit that Bheki Mkhize should be found to be an honest witness when he denies that he gave the applicant these instructions to commit the offences referred to. Those are my submissions. Thank you.
MS ARCHER IN ARGUMENT: Mr Chairperson, I was called to represent certain members of the IFP who were implicated by the amnesty applicant, in particular Mr Philip Powel was mentioned. I'd just like to draw the Committee's attention to the fact that Mr Mkhize and Mr Mbele have made no mention of Mr Powel's involvement in this matter and accordingly my instructions are to deny any involvement. Thank you.