CHAIRPERSON: Mr Poyo, what language would you prefer to use?
MR POYO: Xhosa.
LUSINDISO POYO: (sworn states)
CHAIRPERSON: Please be seated.
MR MGIDLANA: Chairperson, may I just indicate that he has applied for amnesty in respect of the APLA 5.
INTERPRETER: Is the witness listening on channel 3?
EXAMINATION BY MR MGIDLANA: I was indicating Mr Chairperson and Members of the Committee that the witness has applied for amnesty in respect of the APLA 5 killing only, he was not involved in the high school shoot-out, as well as the Mapipa case. Mr Poyo, could you give us your full name as well as where you reside as well as the organisation, if any, that you were a member of at the time of this particular incident?
MR POYO: My name is Lusindiso Poyo. My name is Lusindiso Poyo from Mtongo, Port St Johns, I am a member of the African National Congress.
MR MGIDLANA: Since when have you been a member of the ANC?
MR POYO: I joined the ANC in 1988.
CHAIRPERSON: You know why you have come here?
MR POYO: Yes, I know.
CHAIRPERSON: Can you tell us about that? Mr Mgidlana, you can lead him in whatever way you think.
MR MGIDLANA: Thank you. Can you tell the Committee what happened regarding the killing of the APLA 5?
MR POYO: In 1987 before the national elections, I was working for the Department of Water Affairs and Forestry in Libode. I asked for permission from my employer to go and help in the Voter Education in the Branch of Port St Johns where I come from. I was involved in the activities of Voter Education, visiting different rural areas. A rally on the 20th of April was organised. I was fund-raising for that rally that was to take place. We left the day before the rally to Majole, looking for a place where we were going to erect the tent and the other things. We stayed there and looked for other things until the next day. The following day, on this day of the rally, the 20th, we left from Majole with Mr Kanandyana's car, going to Port St Johns. I was going there because I was sent to ask, to get the podium or platform and the loudspeaker. When we got to town, next to the railway station, we met with Fundisele Guleni. Fundisele Guleni talked to Mr Kanandyana at the railway station. Before we could reach the town, he was with the other people of which were not known to me. We turned back without getting into town. Myself, Noteza, Fundisele and Mr Kanandyana went back in this car. On our way, we were told that there were people who were suspected as APLA members who were on their way to disrupt the rally. Myself and Noteza were at the back of the van, Fundisele as in front, occupying the front seat of the van. We went towards Dumasi and the car was stopped, because there were people hitch-hiking.
MR MGIDLANA: It seems that they are complaining that you are very fast.
MR POYO: We went to a place called Dumasi and there was a big board (indistinct) bungalows, that is where the people were picked up who were hitch-hiking next to the road. We left that place, we went towards Etombo. We got next to a place called Mfhadla and the car took a turn. Myself and Noteza were at the back of the bakkie and Fundisele and Mr Kanandyana were in the front in this bakkie. The car took another direction towards Majola, but another route to Majola, not the one that was known to me. We joined this Majola route on the other side. We went to the rally and we got in, there were people there and I think even the General was there at the time. The car got in the field and took a turn and we went to stop the car on the other side of the ground. Mula left us in the car, myself and Noteza. I am not sure where Mr Kanandyana was at the time, but I am sure that myself and Noteza and these people who were hitch-hiking, these people who had been given a lift, were in the car. When Mula came, he came with Mzwandile. We were told to get into Mzwandile's car with those people and there was Mqiza. Mqiza was coming from Majola and I had seen him the day before this rally, on the 19th. We were taken to a certain house that I did not know, I got to know later, that that was Mqiza's home. I did not know that that was Mqiza's home, but I got that information later. I am forgetting something, before getting to Mqiza's home, of which I will apologise, because I am not sure about this one, I am not sure and I cannot remember where did Mzwandile give us the firearms, but I remember that he gave me a pumpgun and when we got to Mqiza's home, I pointed them with this pumpgun and Mula had a firearm that looked more like a 5mm. Their bags were searched, they wanted to know what was in their bags. When we moved there, we were told to get into Mzwandile's car by Mzwandile. We took another route to a place that I was seeing for the very first time, and I was told that that was the route getting to Buche. When we got there, they also alighted from the vehicle. Next to the road, there was a tree, a thorn tree. Just a distance like from this table to that place, to that other table, there was this thorn tree and these people were standing on the other side, and they were questioned, wanting to know who were they and where were they coming from. There was this misunderstanding, because the others, the other one was telling them not to answer, to give the others a chance to answer. That is when Mzwandile decided to divide these people into two groups. These people were on the other part of the slope, the slope was deep, they were on the high point of the steep and Mula went to the other side and questioned the other group and Mzwandile was questioning the other group. As we were still listening to that, I heard a gunshot from behind. I was very shocked because I only remembered afterwards as when I thought about the people who were at the back, because there was nothing that could lead to a fight or conflict, because no one was assaulted at the time. I got a shock when I heard this gunshot. After this, Fundisele and Mzwandile were talking and when I listened, to me it looked like Mzwandile was saying he thought he got a signal from Mqiza to fire. I cannot say for sure today here, what Mzwandile was saying because he said something like - he made a signal and Mqiza misinterpreted that and he shot the people. Within no time, those people were taken in the car and when Fundisele told Mzwandile to take those people to the hospital, I was also there. Mzwandile was driving, there was Fundisele and I was also in the car. There was a misunderstanding, when they were talking about taking the people to the hospital. I also want to explain the fact that after that shooting, when Mqiza fired, I couldn't understand a thing thereafter, and I didn't even know. I couldn't even ascertain whether this was the intention or not, but because those were the people who knew each other and they were just involved in this misunderstanding. There was this verbal conflict. I am sure that Mzwandile did not say let us take a turn here, but I am sure that he turned the car, he took a turn and we went passed the scene. We went to the other side and turned there and stopped the car. That is where these people were removed from the car. But while I was in the car, I realised that some people were injured, but I did not see that on the way from Buche to Gomolo, because I was in the front seat of the car, and later I realised that there were people injured there, though I was not sure about the extent of the injuries. I wanted to get Mzwandile and hear what he was saying, because Mzwandile, just after the shooting, after these people were removed from this car, he issued instructions and he said that no one was going to escape that situation, and no one would go out and tell the other people about it. If ever anyone would do that and go out and tell people about that incident, he knows very well what was going to happen to him. These people were again divided into two and the people who were injured, were put on the other side of the bushveld and they were taken to the other side, and those who were not injured, were on the other side, Mzwandile's side to the group where I was in. He said "Mqiza finish up what you have started with a knife, because the firearm was going to make a noise and alert the people from the village", because it was during the day. I think that he mentioned that three times or four times, saying that those people should be finished. No one was doing anything. Mqiza came with a knife, I am not sure whether this knife was with him or he took it from the other person, but he couldn't do what he was supposed to do. I am not sure whether he tried or not, but he couldn't finish off what he was supposed to do. After that, Mzwandile from time to time, would leave and leave us guarding these people up to such time when it was decided that these people were still alive, be taken to another place to be finished off. That is what was said by Mzwandile in my presence. We left with these people, four of them if I am not mistaken, we took them and we went towards Nzimbeni, we went passed Qwele. Mzwandile took a turn there, there was drizzle or light showers and the car stopped there and Mzwandile instructed Mqiza to finish off, that is when these people who were still alive, were shot at the time. Because of my situation at the time, I couldn't even see how this happened, and actually I feel better today, because at that time, I didn't even know that I would be in that kind of place and I never even thought or anticipated that would happen, but it happened anyway. We were taken into the van.
INTERPRETER: Something is wrong with the microphone.
MR POYO: After Mqiza shot these people, we were told to put them in Mzwandile's van, at the back and Mzwandile said there were tools in his house. I cannot remember whether we went to inspect the others that were left on the other side, or we went straight to Mzwandile's place. I think we went to those other people who were injured before, and when we got there, they were not there. We went into this place that looked more like a rivulet and it was impossible for us to get some torch or something to light the place and see what was happening. Mzwandile told us that we would go to his place and get the spades. He went to Mrs (indistinct) house, to the backyard, a house in that backyard, and he got the spades. We went out and when we got there, he stopped a car somewhere and he looked around, and he pointed a place where we were supposed to dig. The marshals dug, I was not involved in the digging, but it is not because I couldn't dig, but the way I was so frightened that day, I don't think I would be able to do anything. I went to stand behind Mzwandile, he had this big firearm, Mzwandile that is. I think it was a G3. As we were there in this small piece of land, he was also moving around. I also had this pumpgun with me. I was looking around, trying to see if there wasn't any person coming to disturb. After that, those people were buried in that hole. The spades were taken to the car and Mzwandile took us to our places of residence. I requested to start with me, to go and drop me home, but he decided that I would be the last person to be dropped home, he did so and he took me back home. That is so.
MR MGIDLANA: Were you a member of either the SDU or of MK at that time, apart from being a member of the ANC?
MR POYO: I was not an SDU member, nor MK.
MR MGIDLANA: So, when you were going to fetch this shovels and all that, with whom were you?
MR POYO: Mzwandile was driving, he was sitting with Fundisele in the passenger seat, and it was Noteza and myself and other boys who were dressed in marshals' uniform and those who were going to be shot.
MR MGIDLANA: Before this particular day, did you know these people that were killed ultimately?
MR POYO: No, I never knew, it was the first time seeing them.
MR MGIDLANA: Are you able to recall as to exactly how many were they?
MR POYO: Initially they were six in number, two remained, the two that were seriously injured and four were taken towards Nzimbeni where they were finished off with guns. I think they were six all in all. We left the two that was severely injured and we left with the four that was finished off at Nzimbeni with firearms.
MR MGIDLANA: So the four that were finished off near Nzimbeni were all that four, all that four were killed near Nzimbeni? The four that had not initially been injured?
MR POYO: As to whether they were injured or not, I think they were injured when somebody suggested that they should be finished off with knife-stabbing, but we did not see whether did it start or not. As to whether they were stabbed or not, they did not die of the stab wounds, that is why they were finished off at a later stage. There is the possibility that they might have been injured, but they were bleeding, but if they were bleeding, it was not due to the gunshot, maybe it was due to stabbing.
MR MGIDLANA: As it were, you were there up until they were buried, where they were buried?
MR POYO: Yes, I was there from the beginning right till the end.
MR MGIDLANA: Is there anything that you wish to highlight about the incident?
MR POYO: At the moment there is nothing that I can recall that I would say.
MR MGIDLANA: And you have heard the testimony of Mr Guleni, do you confirm it in relation to how the incident occurred?
MR POYO: That is correct.
MR MGIDLANA: That is his evidence Chairperson.
NO FURTHER QUESTIONS BY MR MGIDLANA
ADV SIBANYONI: Just one question, you said you were neither MK nor SDU, were you at the time of the incident, a supporter of any political organisation?
MR POYO: Yes, I was a member of the African National Congress.
ADV SIBANYONI: Thank you.
CHAIRPERSON: Mr Malusi?
CROSS-EXAMINATION BY MR MALUSI: Thank you Mr Chairperson. Mr Poyo, you say when you were coming from the rally, you took the APLA members to Mqiza's home, did I get you correctly?
MR POYO: We took them from the rally to Mqiza's house. We first started at the rally and then to Mqiza's house.
MR MALUSI: I take it that your answer is yes, you took them to Mqiza's home? What was the purpose of that visit to Mqiza's home?
MR POYO: The purpose was to search them, to find out what was in their bags, that is what I think, because nobody informed me as to what is exactly, what was going to happen, I just saw action. I just saw their bags being searched and that is all.
MR MALUSI: So I would be correct to say by the time you were at Mqiza's home, you already knew that the APLA members were not armed?
MR POYO: I knew after they had been searched.
MR MALUSI: Were the APLA members questioned at all at Mqiza's home?
MR POYO: They were not much questions at Mqiza's house, other than the fact of who they were, but most questioning took place where they were being shot, not at Mqiza's house.
MR MALUSI: Was there any particular reason why you left Mqiza's house?
MR POYO: I think that they wanted to definitely ascertain as to who were they and where were they from and where were they going, but nobody said that to me. I just heard somebody saying that we must take them to that other place to question them thoroughly after they had been searched.
MR MALUSI: Yes, and they were questioned thoroughly and according to your version, Mqiza accidentally shot some of them?
MR POYO: That is correct, sir.
MR MALUSI: After Mqiza accidentally shot some of them, a decision was taken that the rest of the APLA members should be killed, did you associate yourself with that decision?
MR POYO: No, I didn't associate myself with that decision.
MR MALUSI: And if I got your testimony correctly, you didn't even participate in any material respect, that is after the decision was taken, you did not shoot them and you did not dig the graves, you were just standing around?
MR POYO: I was watching and I was staying on guard. I was told to keep an eye on them so that they should not run away. Whilst they were digging, we were told to monitor the situation and make sure that nobody disturbs.
MR MALUSI: To the best of your knowledge, why was the decision taken that the four APLA members who had survived the shooting by Mqiza, should be killed? What was the objective of killing them?
MR POYO: I heard Mzwandile during the argument with Fundisele as to they should be taken to the hospital or they should be killed or not. At that moment, I did not know as to which side was I on, but there was nothing that I could say against Mzwandile because I took him as somebody who was an expert, who knew everything more than me. I could have suggested anything, but there was nothing that I could have a say in this, because I regarded him as the best.
MR MALUSI: Yes, you regarded him as the best and you did not even know what was happening. Did you perhaps ask when you were leaving the scene where the first APLA members were shot, did you ask at all when you were leaving with the other four, "where are we taking these, what are we to do with them?"
MR POYO: The only question that I asked was directed to Fundisele, not in the presence of Mzwandile. There is nothing that I asked of Mzwandile as to what is going to happen, all my questions were directed to Fundisele, who would tell me that. But although he did not tell me exactly where are we going to, but he just said that we are being told that we are going, we are going to some other place.
ADV SIBANYONI: Excuse me Mr Malusi. What would have happened to you if you have refused to go along with Mzwandile?
MR POYO: He told me that he would kill me instantly because when we got there Mzwandile said "no one is going to leave here. Anyone who would try and leave here, would reach his destination as a dead corpse".
ADV SIBANYONI: Did you voluntarily watch and ensure that nobody interfered or were you under any ...
MR POYO: Honestly I didn't watch, because if you could catch me, I was not there, it was just my body. I couldn't do anything, I was just watching because he was in front of me. For that matter, he was the only person that I was watching.
ADV SIBANYONI: Thank you Mr Malusi. You may proceed.
MR MALUSI: Thank you sir. You would have the Committee believe that your testimony is to the effect that you were under duress, you were out of your mind, you were only present there because your body was there, your mind was not there? Is that what you would have the Committee believe?
MR POYO: What I am saying sir, in some instances like digging, if I am being asked whether I was watching or I was alert or not, because nothing wouldn't have happened if it was to happen because I was on guard. I wasn't mentally on guard.
MR MALUSI: First on the killing sir, I want to put it to you that it was a collective decision. Mzwandile may have initiated that all the APLA members should be killed, but it was your collective decision as the ANC group that was there, that the APLA members should be killed, what is your comment to that?
MR POYO: Right from the first to the last minute, nobody told me what is going to happen or asked what my suggestion was. Nobody consulted me in the matter.
MR MALUSI: If we are to believe you, Mzwandile was the main man and if there was any discussion, the discussion was between Mzwandile and Mr Guleni?
MR POYO: Yes, that is correct sir.
MR MALUSI: Mzwandile has made a statement, a sworn statement, to the effect that Mr Guleni was actually the person who was in charge, who was giving orders. May we have your comment on that?
MR POYO: I was present and I was sitting in the front seat, that is absolutely not true. I could tell him all the things that I have just said, I could say it straight in his face. What he is saying, is not true.
MR MALUSI: After the APLA members were taken from the scene, that is where the first two were injured, when the surviving four were taken from the scene, it is my instruction from Mr Gasmeni that before they were shot, they were stabbed by members of your group, what is your comment to that?
MR POYO: Yes, they were stabbed, it is true. The decision to take them to their last destination, it was due to the fact that Mzwandile's order did not work out when he said they should be stabbed, that is when the decision was taken to finally shoot them.
MR MALUSI: I want to put a proposition to you, that there could have been no other objective in killing at least the four surviving APLA members, there could have been no other objective with regard to their killing, other than to make sure that your group was not prosecuted, that is yourself, Mzwandile and the others, what is your comment on that?
MR POYO: Anything would have - person - other than what happened, I have never thought that I would come across such a thing in my life. The fact that we did that because we were trying to avoid that it would have been done by somebody who have done that before. If I was alone and I had to take some decisions there, I wouldn't have taken things that far.
MR MALUSI: Yes, let's just leave that aside. I am now saying to you the sole purpose, the sole objective of killing the four surviving APLA members was to stop them from going to the police, stop your group from being criminally prosecuted with regard to your actions earlier that day, what is your comment to that, just on that?
MR POYO: That is not how I see things, because as far as I heard and as far as I am concerned, if they could let them go, they were going to report back to their organisation and after that, they would come and retaliate. That was never mentioned, the fact that they were trying to escape prosecution. It was only mentioned that if they are released or one of us tell the other people about that incident, they would go to their organisation and later come back and revenge.
MR MALUSI: Let's for a moment accept that what you are saying, is correct, that you were only worried about APLA. Why then on returning to Port St Johns after this whole mission, why then did you not go to your Chairperson or whoever was in charge of the ANC in that region, to inform him or her that as ANC members you have done this?
MR POYO: As far as I am concerned, the next day Fundisele left to meet with Mr Mfeketho and he told him about everything.
MR MALUSI: Did you tell anyone, yourself?
MR POYO: No, I never mentioned this to anyone, this is a great opportunity for me to take this out of my chest. The very first person that I told about this, was the person who went to get the statement. This is for the second time that I am talking about this incident.
MR MALUSI: Just from this point of a political objective, were you not acting contrary to ANC policy at that time in killing the APLA members if we are to accept, if the Committee has to accept your version that you killed them to prevent further hostilities between PAC and ANC? Were you not acting contrary to ANC policy at that time, which was that political opponents should not be killed and the ANC had effectively suspended the armed struggle at that stage.
MR POYO: At the time, I knew nothing about the armed struggle at the time. As I have mentioned before, how I got myself into this, therefore I couldn't oppose anything.
MR MALUSI: If I can just refer you to your statement on page 12 of the Bundle, on paragraph 34. You say that he, that is Mzwandile, ordered you or us to dig one big hole. Your entire statement is in that vein, that you participated in this, but your testimony today ...
CHAIRPERSON: It does not follow that he is contradicting himself, his participation in the plural may very well be a contribution not physically.
MR MALUSI: I take the point, Mr Chairperson. The point I am trying to make to the applicant is this that on reading his statement, one gets the impression that he is including himself in the activities, he was part of the activity but his testimony today is to the effect that he in fact was out of his mind, to a point he did not know what was happening. I just want him to clarify that.
MR POYO: Chairperson, I want to rectify the fact that I was out of my mind, that is not the case, but what was happening on that day, I was not myself. To me it looks more like a dream, it is not that I wasn't there or I was out of my mind. I was okay, but I was even there when Mzwandile said that people should dig a hole, but he did not call people by names. When I say that Mzwandile told us to dig the hole, yes, he did mention that, but he never mentioned the people's names, and I never practically took the spade and dug the hole.
MR MALUSI: Can you perhaps advise the Committee the specific acts for which you are applying for amnesty?
MR POYO: First of all, when I heard about the Truth Commission, when it was said that if there is anyone who knows anything about human rights violation, those people should go forward, I thought that was a call to me because I was there and I knew that there was someone else who would listen to me when I talk about this. This is my first reason.
MR MALUSI: Maybe you didn't get my question clearly, my question is this, you claim not to have been actively involved, to have been there, but not actively having taken part. I am asking now is there a specific act, something that you did that day, that you would like to be forgiven for, except for just being there?
MR POYO: Guarding people in that process, and guarding the place when I was given this pumpgun, the one that I had.
MR MALUSI: Were you involved in any actions prior to this incident with Mzwandile? We have had testimony of other incidents in Port St Johns, were you involved in any other incident besides this one with Mzwandile?
MR POYO: No, that was the very first and the last incident.
MR MALUSI: The reason I am asking that, I am trying to ascertain why would you be so fearful of Mzwandile if you had not been previously involved with him?
MR POYO: Sir, this problem started when the shoot-out started and from there he wanted us to continue with this, and on the way, he instructed the people to finish off these people and I refused to go there. He told me that if I thought that I was going to escape that situation, I was going to die. On that particular day, and I knew that he was capable of doing anything. I couldn't do nothing about the situation.
MR MALUSI: Is it possible at all that the killing of the APLA members, was planned the moment you left Mqiza's home, that your group or Mzwandile and someone else deliberately took a decision when you left Mqiza's home that these people were to be killed?
MR POYO: I do not think so. I don't think there was time to do that, because I was present when we were moving from this particular place. If there was that kind of a planning, it was done later on, but I have no idea about that.
MR MALUSI: A final question, Mr Chairperson. If I got you correctly, you said that at the time you were fearful that these APLA members may retaliate, is that correct?
MR POYO: Let me explain this. Initially I did not realise that, I only got a fright after the shooting. I couldn't say anything because they were already shot and I did not think that they would be able to fight again. They had no firearms, we saw that when we were at Mqiza's home, and I did not see them fighting again after being shot, because they had no firearms.
MR MALUSI: Yes, the question I wanted to ask after that actually was, if you are afraid that after being shot, that they were going to retaliate, was your group not afraid that even if they had not been shot, they would still have retaliated for the abduction and the questioning?
MR POYO: If they were going to retaliate, they could have done so, but I cannot say what was going to happen. I couldn't say no to anything, maybe they were later going to retaliate, but I do not know for sure. I cannot say what would have happened if they were released.
MR MALUSI: Thank you for your time, sir. No further questions Mr Chairperson.
NO FURTHER QUESTIONS BY MR MALUSI
CHAIRPERSON: Mr Mgxaji, I don't suppose you have any questions?
MR MGXAJI: No questions.
NO CROSS-EXAMINATION BY MR MGXAJI
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: No questions, sir.
NO CROSS-EXAMINATION BY MR MAPOMA
CHAIRPERSON: Mr Mgidlana, have you got any re-examination?
MR MGIDLANA: There is none, Judge.
NO RE-EXAMINATION BY MR MGIDLANA
CHAIRPERSON: Yes, thank you, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Mr Mgidlana?
MR MGIDLANA: Chairperson, that is all in respect of the applicants.
CHAIRPERSON: Mr Malusi, have you got any witnesses?
MR MALUSI: Yes, Your Worship, there is Mr Gasmeni who survived this incident, but Your Worship, I have consulted with him, his testimony really would relate to what is on page 101 to 109, that is his two statements to the police in the Bundle.
CHAIRPERSON: I am in your hands on that score. Page 101 you say?
MR MALUSI: That is correct, yes.
CHAIRPERSON: I don't know what you want to do. I have not read those statements.
MR MALUSI: Oh, I had assumed incorrectly, that the Committee had read the statements.
CHAIRPERSON: No, I make it a point of not reading it before I hear testimony. I don't want to cloud my mind.
MR MALUSI: If perhaps I can be so presumptuous as to ask if any member of the Committee has a particular point that they would like to raise with Mr Gasmeni?
CHAIRPERSON: None.
MR MALUSI: In that event then Mr Chairperson, I do not intend to call him because really, truly speaking his evidence is as contained on pages 101 to 109.
CHAIRPERSON: It is not going to take the matter much further?
MR MALUSI: Much further, Your Worship.
CHAIRPERSON: Fair enough. I appreciate the approach. Any other witnesses or is that your lot?
MR MALUSI: That was the only witness I intended calling, the only person.
CHAIRPERSON: Thank you. Mr Mgxaji, do you have any witnesses?
MR MGXAJI: Certainly not beyond what I submitted in respect of when I was dealing with the Mr Mapipa case.
CHAIRPERSON: Mr? I didn't get the name.
MR MGXAJI: No, My Lord.
CHAIRPERSON: You haven't got. Mr Mapoma?
MR MAPOMA: I have no further evidence, Chairperson.
CHAIRPERSON: That being the case, there will be no more evidence, Mr Mgidlana, have you got any submissions to make? We certainly would like to hear which applicant applies for what.
MR MGIDLANA IN ARGUMENT: Judge, I will begin by indicating that I will not deal with Hermans as well as Pato's portions of their applications that were withdrawn. If we may begin with the shoot-out at the high school on this particular day, the Voter Education shoot-out.
CHAIRPERSON: Who is involved there.
MR MGIDLANA: Wherein Guleni was involved, Matshaya, Mdlulwa as well as Pato.
CHAIRPERSON: Okay, what is Guleni applying for?
MR MGIDLANA: Judge, Guleni is applying for his involvement in the shoot-out.
CHAIRPERSON: No, I cannot understand that. Let me make it easier.
MR MGIDLANA: As it pleases, Judge.
CHAIRPERSON: On the evidence given by them, are they guilty of anything?
MR MGIDLANA: It will seem to me Judge, my submission would be that they could be guilty if they were to be charged, with public violence even though of course they are saying that they were trying to defend the people where they ...
CHAIRPERSON: No, I am not talking about what the prosecution authority of this country may decide. I've got to look at the facts. They were defending people.
MR MGIDLANA: Yes.
CHAIRPERSON: It is not a crime to defend people.
MR MGIDLANA: Yes.
CHAIRPERSON: On that basis, are they guilty of anything?
MR MGIDLANA: Given that Judge they are not saying that they know of any person who was injured or killed during that incident...
CHAIRPERSON: Even that, I mean can they be said to have unlawfully taken the life of another or attempted to take the life of another?
MR MGIDLANA: My submission will be that it might be said that depending on what happens, whether or not their act of self-defence did not exceed the bounds, but ...
CHAIRPERSON: But that is not their versions.
MR MGIDLANA: Yes, but it is not their versions, yes. In fact the only thing that comes to my mind, Judge, is that it could just be said there was fighting between these two groups.
CHAIRPERSON: They - aren't they guilty of unlawful possession of firearms and ammunition, on that incident?
MR MGIDLANA: That is another aspect Judge ...
CHAIRPERSON: That is about all that can be said.
MR MGIDLANA: That is all that can be said, yes.
CHAIRPERSON: Get to the next matter.
MR MGIDLANA: The next matter would be that of the killing of, in fact that applies to all these four that I mentioned, in this first matter, Judge. Then the second one relates to the killing of the late Mr Mapipa, of which the applicant is Guleni.
CHAIRPERSON: Yes. He would be guilty of murder?
MR MGIDLANA: He is guilty of murder, Judge.
CHAIRPERSON: Mr Mapoma, the Sotho Interpreter has been interpreting, is he necessary to the public? Is there anybody that wants to listen in Sotho?
MR MAPOMA: If I may Mr Chairperson, yes.
CHAIRPERSON: Okay. We will then break for two minutes then.
COMMITTEE ADJOURNS
CHAIRPERSON: Mr Guleni in the killing of Mr Mapipa, would be guilty of murder, unlawful possession of a firearm?
MR MGIDLANA: (continued) (No audible reply)
CHAIRPERSON: I didn't hear.
MR MGIDLANA: Malicious damage to property, Judge, because Mr Mapipa's vehicle was certainly damaged.
CHAIRPERSON: Yes. And were there other people injured in that incident?
MR MGIDLANA: From what I gathered from my learned friend, that somebody else was injured.
CHAIRPERSON: You don't know who that person was?
MR MGIDLANA: Who that person is, yes. It could be attempted murder in respect of that person.
CHAIRPERSON: Yes.
MR MGIDLANA: As well as, I don't know whether it will follow therefore that assault GPH will be involved in the event that the attempted murder could not have been proved. But whatever competent verdicts ...
CHAIRPERSON: Shooting somebody blindly cannot be other than attempted murder?
MR MGIDLANA: Yes.
CHAIRPERSON: And the killing of the APLA operatives?
MR MGIDLANA: In the killing of the APLA 5, it is murder.
CHAIRPERSON: Well, who is involved there?
MR MGIDLANA: It is Guleni as well as Poyo.
CHAIRPERSON: Yes, it is five counts of murder or how many counts?
MR MGIDLANA: It is five counts of murder, because as I understand it, five people died.
CHAIRPERSON: One attempt?
MR MGIDLANA: One attempted murder, yes.
CHAIRPERSON: Yes.
MR MGIDLANA: I don't know whether it is relevant, the question of conspiracy because the actual murder was indeed carried out.
CHAIRPERSON: Yes, then it is not conspiracy.
MR MGIDLANA: Yes. As to the - I am not so certain what offence will have amounted to the concealment of their bodies, but whatever offence relating to the concealment of their bodies, and also the possession of firearms and ammunition, if any during that incident.
CHAIRPERSON: Did Guleni have a firearm that day?
MR POYO: From the testimony of Poyo, he says Guleni was also having a firearm.
CHAIRPERSON: And Poyo himself?
MR MGIDLANA: And Poyo himself, he had this firearm that he got from Mzwandile Jagu, which was the pumpgun. It seems in so far as the offences for which they apply amnesty it would be those.
CHAIRPERSON: Is there anything else you wish to add to that?
MR MGIDLANA: Judge, unless the Judge wants to and the Panel in general, wants to hear me on the question of the applications, the merit of the applications ...
CHAIRPERSON: Let's see what difficulties the other Attorneys pose to us.
MR MGIDLANA: As it pleases you, Judge.
CHAIRPERSON: We may come back to you.
MR MGIDLANA: As it pleases you.
CHAIRPERSON: Mr Malusi?
MR MALUSI IN ARGUMENT: Thank you Mr Chairperson. With respect to the murder ...
CHAIRPERSON: You are dealing with the APLA 5?
MR MALUSI: The APLA 5, the murder of the five APLA members and the attempted murder of Mr Gasmeni. It is my submission to the Committee that both applicants do not qualify to be granted amnesty for those offences. The principle reason being that it is my submission to the Committee that the killing of the five, in fact, I am not certain, the killing of four of the operatives, is definite that it is not politically motivated, that is those that were taken after the initial shooting by Mqiza, to be killed somewhere else. It is my submission to the Committee that that killing is not politically motivated. It is my submission to the Committee that that killing was done solely for the reason of trying to silence them so that there could be no criminal prosecution. On their statements in the Bundle, it comes our clearly that they said they had no intention of killing these people. There is no mention at all in their statements about a fear of retaliation. Their versions, that is Guleni and Poyo, on their statements in their application, is that the first two were shot accidentally by Mqiza. After the shooting by Mqiza a collective decision was taken that ...
CHAIRPERSON: Well, was it accidental? He thought, he honestly thought that he got the instruction, it may turn out that he didn't get an instruction, but when he shot, he intended to shoot them, because he honestly believed that he had an order.
MR MALUSI: From his superior?
CHAIRPERSON: So it is not a question of a mistake when he actually did it. It turned out after that, that it may have been a wrong interpretation, and in that fashion, maybe a mistake. Would you agree with that?
MR MALUSI: I agree fully with that, Judge. That is why I am saying with regard to the initial shooting of the two, that is why I am saying not murder on five counts. They are possibly entitled to amnesty with regard to murder on one count. Unfortunately we do not know who was killed initially by Mqiza, because he genuinely believed, bona fide believed, that he had received an order from his Commander to kill these people, which it turned out was a mistake. But with regard to the actual murder later on of the three others, and the attempted murder on Mr Gasmeni, they are not entitled to amnesty. It is clear from their applications that they are saying they murdered them to silence them. This testimony today that these people were murdered so that they could avert a retaliation by APLA, is an afterthought.
CHAIRPERSON: Do you have the names of the victims?
MR MALUSI: Yes, I do Judge. If the Panel would bear with me.
CHAIRPERSON: Maybe you can give it to Mr Mapoma when you do find it. I can get it from him, don't worry.
MR MALUSI: Okay.
CHAIRPERSON: Carry on with your submission.
MR MALUSI: My submission is that with regard to the killing of the other four is that a chain was broken. If these people were all killed at the same time when Mqiza misinterpreted that instruction, possibly they would qualify for amnesty, but that break in time, that break in activity, when they went around to say "we must take them to the hospital" and they said "no, we cannot take them to the hospital, they will report this" ...
CHAIRPERSON: Changes the whole scene?
MR MALUSI: Changes the whole thing, it is now premeditated murder, to conceal the earlier murder of the two APLA cadres. It is my submission that on that score, there is no political objective. To further undermine the applicants' application, the organisation to which they belong, they admitted that it was the policy of that organisation that political opponents were not to be killed, they admit that the armed struggle was suspended at the time. Even if we were to view their version on its own, it is my submission that it cannot succeed, that is the version that we killed them because we were furthering the aims of the organisation, these APLA cadres were troublesome in Port St Johns. It is my submission that that cannot succeed. I would like also to point the Committee to page 48 in support of my application, page 48 of the Bundle wherein there is a statement by Mr Guleni, paragraph 37, that is the relevant paragraph, when he says when they left, there was a general assumption that these people were to be taken to hospital, but Mzwandile said if they did that, they would be arrested. That is in support of my application. I also would like to refer the Committee to the statement by Mr Guleni where he says on page 47, 48, there are two paragraphs 34 there, and then there is also paragraph 35. It is clear from those three paragraphs, the two paragraphs 34 and paragraph 35 that these APLA people were disillusioned members, it is clear that after the interrogation, it is clear that these people were disillusioned, they were trained, they were to an extent abandoned by APLA, the PAC, they were being integrated into the TDF. They are not happy with the integration into the TDF, they are clashing with their own comrades, with their own APLA comrades. They are now leaving the base where they are being integrated, to go to Umtata, to go to Qogani. This is on the version of the applicants. Why then would people, who are in such a position, be seen to be posing a threat of a counter-attack, of a revenge attack? It is my submission to the Committee that this purported attack is not reasonable and cannot be accepted. I am sure even the applicants do not bona fide believe this now or even then, that there was to be a counter-attack. A second point, my instructions are that the applicants have not made a full disclosure. The affidavit of Mzwandile is in complete contrast to both the testimony of the applicants. Mzwandile is saying that Mr Guleni played an active role, he is the person who was giving the orders. The statement by Mzwandile, it is from page 84 to page 90. It is my submission that on reading that statement by Mzwandile Jagu and on reading the statement by Mr Gasmeni, the survivor of the attack, that would be on page 101 to page 109, those statements are similar in material respects, that these people were lined up, an order was issued that they be shot and these people were shot. Gasmeni is not providing the names, because clearly these people were unknown to him at the time, who gave the order and everything, but Jagu supplies us with the names, that so and so gave the order, so and so did this, so and so did that. It is my submission that the two applicants did not make a full disclosure with regard to their role in the actual murders. I am now saying if the Committee on the first submission I make, there is no political objective, does not agree with my submission, dismiss that and says there is a political objective, the second point to be considered by the Committee is, did these people make a full disclosure. It is my submission that they have not.
CHAIRPERSON: You are saying for the reasons you have given us, they fail in their application, on both counts?
MR MALUSI: They even, the applicants, both Mr Guleni and Mr Poyo, today they are giving us the impression that they were mere spectators. If one reads their statements in the Bundle, one gets the impression that they actively participated. Yes, their participation was not a leading role, but their participation was there. Today their testimony is to the effect that they were passive participants, they did not actively do anything.
CHAIRPERSON: That amounts to not fully disclosing?
MR MALUSI: I submit that it would, Mr Chairperson.
CHAIRPERSON: Yes.
MR MALUSI: In that the Committee or the Act expects of an applicant to fully state his role. If as these applicants were, if one is involved in a murder, I believe the Act expects that person to state fully what his role was.
CHAIRPERSON: We understand that, you are correct.
MR MALUSI: If a person says I was there in the murder, but I was just standing by, and the Committee later finds out that you were not only standing by, your role was more than standing by, I believe that is a ground for refusal, and it is my submission that they also be refused. On those two grounds, Mr Chairperson, I submit that both applicants, Mr Guleni and Mr Poyo, with regard to the Port St Johns incident, be refused amnesty, especially with regard to the murder of the four APLA cadres and the attempted murder of Mr Gasmeni. Of course there are other charges, possession of unlicensed firearm because he says they were carrying Uzzis, pump action guns and the like, I believe they had those for political objectives. The abduction of the APLA cadres earlier on during the day, I believe based on the Act, that abduction was justified. All their acts were justified to an extent up to the point when they decided to kill those people to silence them, from there on their acts were definitely not justified in the Act. Thank you for having me.
CHAIRPERSON: Thank you. Mr Mgxaji?
MR MGXAJI IN ARGUMENT: Mr Mgxaji, Judge.
CHAIRPERSON: I am sorry.
MR MGXAJI: With regard to the application by Mr Guleni, relating to the murder of Mr Mapipa, ,from his testimony proffered, we do ascertain, he so also admits, that at the time Mr Mapipa was murdered, he had never been involved in any endeavours, interfering with the election campaign of the ANC. He was never involved in any of the alleged political clashes in Port St Johns, specifically the time that he was so shot at and murdered, he was not engaged in any activities attacking the applicant and therefore there could not have been any political reason why the applicant would hold Mr Mapipa a political target. That at least we are so sure of from the testimony of the applicant. What could be arguable though itself, I will show it to be baseless, is that the unit alleged by Mzwandile Jagu, to be in Mr Mapipa's motor vehicle was a Third Force Unit or APLA, either way, that also does not ground a reason for the murder of Mr Mapipa and therefore there could not have been any political objectives sought to be achieved in taking the life of Mr Mapipa. As contended by the victims through me, even those who were with Mr Mapipa, were not APLA members. That they were not, could not also be refuted by the applicant. His Lordship seems to argue that at the time the act was committed, the applicant bona fide believed that what he was shooting at, put aside the question of Mr Mapipa, was APLA, but His Lordship would agree with me that determining or ascertaining one's bona fide beliefs, such determination is arrived at objectively. In other words, objective facts should exist upon which that genuine or bona fide belief is based. There being no objectively ascertainable facts upon which the applicant could have genuinely believed that the boys who were with Mr Mapipa, were APLA members or Third Force Unit as having been reported to him by Mzwandile. That not being the case, his state of mind at the time that the offence was committed, cannot be said it shows a genuine belief on his part. Even if one focuses on the alleged Third Force Unit or APLA men who were attendants or guards to Mr Mapipa, for whatever reason that could possibly have been, but the fact of the matter is that on mere report by Mzwandile that Mapipa' van with a Third Force Unit or APLA Unit, they jumped into the van and attacked. Unless the applicant did ascertain the identity and the capacities of those who were in the motor vehicle with Mr Mapipa, he have never done so, it just cannot by any stretch of imagination, be argued, from whatever angle, that he had risen to believe that those were APLA members, not particularly a trained member of a military wing of a liberation organisation, and my submission conclusively is that the murder of Mr Mapipa as an individual, there was no political reason, no motive on the part of the applicant. In the same way as it is an afterthought, just a concocted story that those who were at Mr Mapipa's motor vehicle, were a Third Force Unit. We do have in the Bundle of documents, a statement by Mzwandile Jagu. Even though that statement relates to the five fellows that were picked up on the road and murdered, that statement as to who Mzwandile is, tells this Committee that certainly the allegation by the applicant that he was a man from whom commands could emanate, are merely a (indistinct) on the part of the applicant, to portray a situation wherein commands and instructions were given to him. In the same way as there was no reason for applicant to believe as he seeks this Committee to believe, there was no reason at the time Mzwandile was reporting to him about this Unit, there was no reason for him having a trained mind, in a military action or (indistinct) situation, there was no reason for him not to assess and seek to ascertain the veracity of the statements by Mzwandile and the conclusion one is led to arrive at, is that it is a mere fabrication that Mzwandile make that report. If one looks at the statement, on page 89, that would be paragraph 2. I do understand His Lordship, that he has indicated that he did not read through the statement, but if His Lordship would, he would read that what Mzwandile says is that
"... my bakkie was washed the blood in the garage, and the time by then, was about ten. I left them in town after a strong warning that if I can ever reveal or if I can reveal all this thing, my property, myself and my wife, would be destroyed. Even if I can go to hide myself, they will hunt me."
My Lord, there is no reason why this Committee would doubt that extract or portion of the statement by Mzwandile, and this Mzwandile is the very same Mzwandile whose bakkie was used when Mr Mapipa was murdered, and my submission therefore is indeed, there was no political objective sought to be fulfilled by the applicant. In so far as the question of the second leg, being that of full disclosure ...
CHAIRPERSON: Well, if we accept that there was no political motive, it would have to be on the basis that Mzwandile was not the leader he is made out to be, and therefore there would not be full disclosure?
MR MGXAJI: That assertion is also applicable My Lord.
CHAIRPERSON: I am saying, that is how I understand your argument?
MR MGXAJI: Certainly this Mzwandile is the very one who has proffered in that statement, who he is, how he is related to the applicant and on the basis of what comes out of that statement, in relation to what the witness has proffered before this Committee, certainly no full disclosure is made.
CHAIRPERSON: And therefore the application in respect ...
MR MGXAJI: Should not succeed.
CHAIRPERSON: Well, it fails on both counts?
MR MGXAJI: That would be my submission that it should fail on both counts. My Lord, I would - one does know that there could be various interpretations of what is meant by a political objective, but one does know the South African political scenario, the forces of change and the forces against change and therefore one does know a political objective would be the one that seeks to advance the interest of change, and the political parties involved in that scheme of arrangements, are also known. The political leadership and the organisation, both in the ANC, the PAC and AZAPO, (indistinct) may name them, all in the left, certainly they decry any political acts by anyone of their members directed to a member of another political organisation in the order that you shall find in the left of the centre in the South African political scheme of things and my submission therefore is even if we take Mr Mapipa as having been a Robben Islander, a member of the PAC, taking his life does not fit in in the political objectives any individual involved in the political struggle may seek to achieve. Eliminating Mapipa would not advance any political interest in effecting change in this country. It is something that is decried by all these political organisations I have enumerated and my submission therefore is indeed, there could not have been any political basis, motive, nor reason why Mr Mapipa was murdered cold-bloodedly in the manner in which he was and therefore the application should be turned down. That is all Mr Chairperson.
CHAIRPERSON: Thank you.
PROSECUTOR: Mr Mgxaji, will you also like Mr Malusi, do us the favour to furnish Mr Mapoma with the full names of the deceased, Mr Mapipa, his address, his next-of-kin and all of the people who were attacked in his vehicle?
MR MGXAJI: Certainly I will do so, My lord.
PROSECUTOR: Thank you, thank you very much.
CHAIRPERSON: Mr Mapoma, have you got any submissions? I doubt there is any left?
MR MAPOMA IN ARGUMENT: Just a few Chairperson. Chairperson, I have listened carefully to the submissions that have been made by those appearing for the victims. I would like Chairperson, just to make a few comments. In particular sir, that when the Committee determines this application, it is important that the context within which these acts happened, must be taken into account. I am saying so because Chairperson, the provisions of the Promotion of National Unity and Reconciliation Act particularly Section 20(3) sets out the criteria that must be taken into account in determining as to whether an act is an act associated with a political objective. Amongst those criteria the political motive is supposed to be taken into account as well as the context within which the acts took place. It may well be argued that the ANC decried violence against other political organisations within the land, but the matter does not end there because if you look into the political motive, one cannot negate the fact that these actions were politically motivated. It is common cause Chairperson, that in particular regarding to the APLA 5, that they were members of APLA, they were trained as such. It is common cause as well that during that period, there
was a conflict, a fierce conflict between the ANC, SDU's and the PAC in the form of APLA. In a way that is almost common cause in this house. It is unfortunate that those conflicts resulted in this particular actions. I have taken into account as well Chair, the submission which was made that the decision to kill the APLA 5, was prompted by a desire to evade prosecution and nothing else, but there is an alternative explanation that has been tendered by the applicants to the effect that not only that, whilst they concede that it may be well be that they did not want to be prosecuted, but as well, they did anticipate that should they release them, there was anticipated a counter-attack onto them. Even if, for that matter, Chairperson, it can be argued that amongst the reasons, they were avoiding prosecution, given those times, prosecution itself to a great extent, would hinder their political objective if they were to be prosecuted at that time, given their role in the area, particularly Guleni because he was a leader there. If he were to be arrested, that to a certain extent would hinder the political process of their own organisation. In a way Chairperson, I would certainly argue that it is very difficult to say these particular actions were not politically motivated. Regarding Mr Mapipa, it is also accepted that he was a prominent member of the PAC in that area and there was this conflict that was there. In a way, as well ...
CHAIRPERSON: Is that common cause?
MR MAPOMA: Yes, in fact Mr Mgxaji has argued, I mean has mentioned that he was a former Robben Islander, a PAC leader in Port St Johns, and unless I ...
CHAIRPERSON: I will check that with him. You carry on.
MR MAPOMA: Yes Chairperson. That being the case, I am saying it is very difficult really to say there was no political motivation. I would not deal Chairperson, with the question of full disclosure.
CHAIRPERSON: Thank you.
MR MAPOMA: Thank you sir.
CHAIRPERSON: Mr Mgxaji, tell me the question of membership of the PAC on the part of Mr Mapipa, is that correct?
MR MGXAJI: May His Lordship bear with me, I was attending to something else, and not on the microphone. What is sought to be ...
CHAIRPERSON: No, there is a submission here that it is common cause that the deceased was a member of the PAC.
MR MGXAJI: Yes, he was a member of the PAC.
CHAIRPERSON: Then I am sorry, I misunderstood your original submission. Thank you. Mr Mgidlana, I don't think we need to hear you, we have heard what they want to say, we will take it into consideration. We don't need to hear you.
MR MGIDLANA: As it pleases you, Judge.
CHAIRPERSON: That brings an end to this week of hearings. I want to thank, before we stop, the people who made this hearing possible, the Logistics Officers, Publicity Officers, in particular the Interpreters who are taken for granted at most occasions, and yet they do the hardest work of having to inform almost everybody in various languages and we thank them for that.
We thank those who have provided the food that we have enjoyed, and those representatives who at short notice are briefed to represent the various parties, in particular I want to thank those who participated in the procedure and those members of the public who have taken an interest in what is happening.
I also want to appeal to the people who are affected by the acts which we have to ponder upon during this week, that in my view, what has happened in this country, came near to madness and whether we like it or not, some of our people were manipulated by those who wanted to hang on to the apartheid structure and the system. To that end, we have defeated the apartheid system, but we haven't cleansed ourselves yet, and no matter what, I cannot say to people to forget your loved ones. What I would like them to consider is to make an attempt to come to terms with life now, bury the hatched, remember those who died, and let's get on with forming a new country and living in it, together. I sincerely hope that the families of the victims can see their way clear of coming to terms with having to have some type of social relationship with those that have thus far not cared for, because they had attacked their loved ones, or even hated them. The time has come for our country to stop hating each other. I thank you for listening. We are adjourned.
HEARING ADJOURNS
