CHAIRPERSON: We will proceed to hear the applications of Tsepo Matlala Makola and Mogupudi Bierman Mphaga. The panel sitting to consider these two applications comprises Judge Khampepe, Judge Motata and Judge De Jager. Will the legal representatives appearing on behalf of the two applicants place themselves on record?
MR RICHARD: Thank you Chairperson, my name is Tony Richard.
CHAIRPERSON: Thank you Mr Richard.
MR STEENKAMP: Thank you Madame Chair, my name is Andre Steenkamp, I'll be representing the family Skosana. Thank you Madame Chair.
CHAIRPERSON: Thank you Mr Steenkamp. Mr Richard, are we in a position to commence?
MR RICHARD: Yes Chairperson, I'm indebted for the indulgence granted on behalf of adjournment. I've proposed to call the second applicant first, that's Mr Mphaga. He was indeed the commander of the unit in the area and with the Committee's
permission, may I proceed?
CHAIRPERSON: You may, you will be testifying in what language Mr Richard?
MR RICHARD: He will be testifying in Sotho.
CHAIRPERSON: In Sotho.
MOGUPUDI BIERMAN MPHAGA: (sworn states)
EXAMINATION BY MR RICHARD: Sir, in and during 1990 were you or were you not a member of the ANC?
MR MPHAGA: I was a member of the ANC.
MR RICHARD: When did you join the ANC?
MR MPHAGA: I joined the ANC - I crossed the border in 1989 and then after that I filled the membership forms, I was part of the Marshall unit.
MR RICHARD: While you were over the border what did you do there?
MR MPHAGA: I underwent military training of uMkhonto weSizwe.
MR RICHARD: For how long?
JUDGE DE JAGER: Mr Richard, I don't think - we've got a peculiar situation here. He's already been granted amnesty. We've got his application on oath before us so you could as far as the background is concerned you could be very short about it.
MR RICHARD: Chairperson, I accept that but if one looks at page 19 of the bundle there the victim makes the statement that the applicants who claimed to be MK trained cadres. I believe it was necessary in lieu of that to shortly report that there was training. I'm going to proceed.
MR RICHARD: My next question is, as at June 1990, what position within MK did you hold?
MR MPHAGA: I was a commissar of the unit which was operating in Gangala.
MR RICHARD: Now who was the commander of that unit?
MR MPHAGA: The commander was Mbata assisted by J P Sibanyoni because they knew Gangala more than I did.
MR RICHARD: Now who was in charge of them and where was that person or persons?
MR MPHAGA: They were staying in Gangala, because ...(indistinct) of Gangala area.
MR RICHARD: Now in that area there was a certain Wiseman Mbata, do you remember the name?
MR MPHAGA: Yes Chairperson.
MR RICHARD: Now he made certain reports to you concerning a person known as Boy Skosana. Is that not correct?
MR MPHAGA: That is correct.
MR RICHARD: What were those reports?
MR MPHAGA: We worked with Boy Skosana in our unit in Gangala. The report which he made is that I gave him a task to gather intelligence about people who were opponents of the organisations of our liberation. Then the name of Mr Skosana came up, then we asked questions about that then it was discovered that Mr Skosana was working at the former Vanderbijl government and then again he is a guest, he is supporting the amalgamation of Gangala to KwaNdebele.
MR RICHARD: Now what was the opinion of your organisation of persons such as Mr Skosana who worked for homeland governments?
MR RICHARD: If I remember well that the former government used to employ people if not all but many of them, where those who were supporting their policies because you were not able to bite the hand that feeds you. Therefore it shows that Mr Skosana was prepared to fight against our liberation struggle. That is why in June 1990 we went to his place and fought him.
MR RICHARD: At page 10 of the bundle, paragraph 10(a) you make mention of the forceful incorporation of Gangala into KwaNdebele. Whose policy was that forceful incorporation?
MR MPHAGA: I did not understand your question, may you please repeat that question?
MR RICHARD: Thank you, there's a question at page 10 at paragraph 10(a)
"State political objectives sought to be achieved".
There your answer is:
"To protect members of community organisation opposed to the forceful incorporation of Gangala into KwaNdebele."
Now my question is from your memory of the times, who wanted the incorporation of Gangala into KwaNdebele?
MR MPHAGA: It is the former government together with our people, some of our people who were benefiting from that system.
MR RICHARD: And what was the ANC's attitude to that incorporation of Gangala into KwaNdebele?
MR MPHAGA: The ANC was against that policy of that incorporation as it was the same with Mutsi to be incorporated in KwaNdebele. ANC in terms of my knowledge was against that policy that Gangala should be amalgamated with KwaNdebele forcefully.
MR RICHARD: Now who was responsible for the selection of targets to attack in your unit?
MR MPHAGA: My seniors who were instructing me in Zimbabwe, they told me that because they would not be there then I'll be the one who would be in that particular area as I was in Gangala at the time but when I was in association with the comrades were staying at Gangala, we would investigate those who were against the liberation of our people. Then after we've identified people who were supporting the system which was not popular to the masses. After that we identified Mr Skosana then we informed Chief Matebe, then he informed others who were senior to me, that is why we went to Mr Skosana's place. Then we attacked his house.
MR RICHARD: So who specifically gave the approval for you to attack Mr Skosana's house?
MR MPHAGA: I've already explained that is.
MR RICHARD: So it was then command structures above you?
MR MPHAGA: Chief Matebe.
MR RICHARD: And Chief Matebe had command structures above him?
MR MPHAGA: That is correct.
MR RICHARD: And the command structures above you approved of the operation of attacking Mr Skosana?
MR MPHAGA: Yes that is correct because you could not reveal the secrets of the military structures. I regarded that they have agreed to that proposal of the attack.
MR RICHARD: Now when I make this proposition, is it right or wrong? At that time in June 1990 people such as Mr Boy Skosana were seen as government stooges, is that right or wrong?
MR MPHAGA: That is correct, Chairperson.
MR RICHARD: Now when you conducted the attack who was with you?
MR MPHAGA: I was together with Tsepo Makola.
MR RICHARD: And he is the second applicant sitting next to you?
MR MPHAGA: That is correct, Chairperson.
MR RICHARD: Now would you briefly tell us at what time of the day or night and with what weapons you attacked the house?
MR MPHAGA: It was at midnight and then we used AK-47s, we made use of two AK-47s. I had one and Makola had one, then we had handgrenades but we did not use them.
MR RICHARD: Why did you not use the handgrenades?
MR MPHAGA: We knew that he was not staying alone at that particular place therefore we foresaw that if we threw handgrenades therefore we would kill all people who were occupying that house at that particular time, that is why we did not use handgrenades.
MR RICHARD: Were the lights on in the house when you arrived there?
MR MPHAGA: No Chairperson.
MR RICHARD: Now at what did you shoot in the house, did you shoot at all the windows, no windows, doors, roofs, walls?
MR MPHAGA: I was facing towards the bedroom which I received information that he was sleeping in therefore I directed my bullets to that particular room. We were shooting above the shoulder heights of the wall even though some bullets went directly lower because we knew that you could not be perfect in your shooting.
MR RICHARD: So in other words you shot either at a horizontal or upwards, is that correct?
MR MPHAGA: We were shooting above the windows but some of the bullets went below the window because you cannot be perfect.
MR RICHARD: Now there was a community hall in the area where Mr Skosana lived and operated ...(intervention)
JUDGE DE JAGER: ...(inaudible). Was your intention to kill him or what was your intention?
MR MPHAGA: The intention was to frighten him but the firearms we were using were lethal.
MR RICHARD: In other words you foresaw the possibility that he might be injured?
MR MPHAGA: Correct, Chairperson.
MR RICHARD: Now in that area where Mr Skosana lived and operated there was a community hall. What was his relationship with this community hall?
MR MPHAGA: I would explain it this way that Mr Skosana, I did not know Mr Skosana but I learnt from various comrades complaining that he was in touch of the access of the hall or usage of the hall and then he many instances he did not allow them to use the hall because he was employed by the oppressive regime. That is why I agreed with them that he was not supporting us but he was supporting the previous regime. That is why at the end we attacked Mr Skosana.
MR RICHARD: Do you believe that he stopped the ANC conducting free political activity and he interfered with their right to do so?
MR MPHAGA: If a person denied people the right of association, therefore he was against or he was an obstacle.
MR RICHARD: Now what do you know of an organisation called Imbokodo, I-M-B-K-O-D-O?
CHAIRPERSON: What is the relevance of that Mr Richard in relation to the incident we are dealing with?
MR RICHARD: At page 20 of the bundle, paragraph 5 ...(intervention)
CHAIRPERSON: Yes, I'm aware of what Mr Skosana has said about Imbokodo.
MR RICHARD: It's relevant only in that ...(intervention)
CHAIRPERSON: Yes, because the witness has not referred to Imbokodo in his evidence, has he?
MR RICHARD: No, but it is in the bundle and if he can speak for it?
CHAIRPERSON: Yes but he really has not said he was associated with Imbokodo, that he reportedly acted on instructions of Imbokodo?
MR RICHARD: The witness was a member of the ANC.
MR RICHARD: Not Imbokodo.
JUDGE DE JAGER: Didn't he allege in his evidence that the victim was a member of Imbokodo?
CHAIRPERSON: Nothing has been said about Imbokodo. Either in relation to his participation or in relation to why Mr Skosana was identified as a target. I'm quite familiar with the bundles and I'm aware that Mr Skosana has referred to Imbokodo but it has no bearing on the issues we have to decide.
MR RICHARD: Chairperson, I accept your direction, it's relevant only in the sense that it is raised as a name in the papers and if the indication is that we do not need to investigate that then I leave the point.
CHAIRPERSON: We don't know why Mr Skosana has raised it because neither in the papers before us nor in the viva voce evidence of Mr Mphaga has any reference been made of Imbokodo.
MR RICHARD: Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you. Is that the end of Mr Mphaga's evidence?
MR RICHARD: Correct.
CHAIRPERSON: Mr Steenkamp?
MR STEENKAMP: Thank you Madame Chair. Madame Chair, I just want to put on record that my previous colleague, Advocate Madikwa, could because of unforeseen circumstances not be able to present Mrs Skosana and the family and under the instruction of Mr Skosana, I've been asked just to raise a few issues with the applicant. I've explained to him position, all these objections as far as I can understand has been raised in his affidavit contained in page 19 and 20. I've also indicated to my learned colleague, Mr Richard, that they will be opposing the application, specifically contained in page 20. As far as I can understand, he has dealt with the majority of them in his testimony in relation to applicant number two who testified first. There's only one or two questions if I can be allowed just to put to the applicant and that would basically be suffice if I could be allowed, just to raise two issues.
MR STEENKAMP: It's been contained in the statement that my instructions are just to raise them.
CROSS-EXAMINATION BY MR STEENKAMP: Sir, it's Mr Skosana's view on it's his contention that he was never a member of any political organisation. What is your view on that, what is your answer to that?
MR MPHAGA: I would not dispute and I would not agree but his actions did not show as to whether he was part of the people who were struggling for liberation, that is why we decided to attack him.
MR STEENKAMP: And secondly, it's his view and his submission that he has never done anything to frustrate the community only by doing his duty and taking up his responsibility as a civil servant of KwaNdebele government. In short, he was never involved in any political action or conflict or anything to that extent. Do you have any comment to that?
MR MPHAGA: I'd repeat again and I would dispute just a little. You'd remember that at the time we did not know how the government was operating. When he denied with the keys, if he explained maybe we would not have done that but because he did not explain and then because of petty talks which were out of the way, that is why we attacked him.
MR STEENKAMP: Lastly, he is saying that since you raised the question of the hall, he can respond and he will respond if necessary to say that he was never asked for any key or any access to the hall which you concede he was in charge of? Do you have any comment on that? Basically he said he was never asked by any political party or any organisation for authorisation to use the hall which he was in charge of.
MR MPHAGA: I've already explained that I was not a resident of Gangala, I was staying in Moutsi. We were using Mbata as an intelligence gatherer. He is the one who brought the information that Mr Skosana is not prepared to work with the people's organisations. At the time I referred to Gangala Civic Association and Gangala Youth Congress. There were rumours that he was not willing to give people the keys for them to have access to the hall and that he was not prepared to work with comrades. You know that during that previous regime it was a serious issue because that government killed many people notwithstanding that our organisations killed other people but the previous government killed many people.
MR STEENKAMP: Thank you Madame Chair, that will be sufficient, thank you for the indulgence.
NO FURTHER QUESTIONS BY MR STEENKAMP
CHAIRPERSON: Thank you Mr Steenkamp. Judge de Jager?
JUDGE DE JAGER: No questions.
NO QUESTIONS BY JUDGE DE JAGER
CHAIRPERSON: Judge Motata?
JUDGE MOTATA: No questions, Madame Chair.
NO QUESTIONS BY JUDGE MOTATA
MR RICHARD: No further questions.
CHAIRPERSON: Yes. Will you proceed to call your next witness?
MR RICHARD: I shall, Chairperson.