TRUTH AND RECONCILIATION COMMISSION

--------------------------------------------------------------------------MS PATEL: ... we are, thank you, Honourable Chairperson. The matter on the role for this morning is that of M M Nsindane, application number 3689/96 and M J Nsindane, application number 4071/96.

MR WILLS: Thank you, Chairperson, Members of the Committee. My name is John Wills, attorney from Pietermaritzburg. I'm representing both applicants and we are ready to proceed.

CHAIRPERSON: Will you call your first applicant.

MR WILLS: Yes indeed, Mr Chairperson, but before we do so, if I could just deal with some formality very briefly. I have discussed this with my learned friend. You will notice in the application in respect of the second applicant there are two application forms in respect of both applicants. I'm going to deal with the reason for that in respect of the first applicant in his evidence.

In relation to the second applicant I would just like to place on record that the only reason that there's a second application form, and as the Committee will see, both application forms are substantially the same, the only reason for it is that we received a letter from the Administration Department of the Truth Commission informing us that that application wouldn't be considered because it wasn't commissioned by a Commissioner or Oaths.

That letter from the Truth Commission was dated the 27th of February 1997, so that's the reason for that second application, but I don't think it materially affects anything. I have shown a copy of that letter to the Evidence Leader in this matter, thank you.

CHAIRPERSON: Thanks very much. Before we proceed, it occurs to me by a cursory reading of the applications of the two applicants, the circumstances to which they depose is spoken of in identical terms in both the applications. Now they are both going to say exactly the same thing, so it seems, about how it came about that the offence was committed and what led them to commit the offence.

MR WILLS: Yes, that is indeed so. The reason for that will become clear as we proceed with the evidence of the first applicant. They were assisted by a particular person from Ulundi and they filled in the forms together. There are slight differences, but I thought that the most efficient way of dealing with it would be that in the main and as regards the actual incident for which amnesty is applied, the second will merely, I will lead him in chief just to confirm what the first applicant has said and save time that way.

Mr Chairperson, sorry, that reminds me of a more important matter before we lead the first applicant, and that is that if one looks at his first application form, and that is page 1 of the bundle, in fact page 2, you'll see that this application form is made, there's an application made, and I'm referring to paragraph C.1, also for the murder of a certain Sipho Zaka, SADF members and a Mrs Ncane. You will also have noticed in the bundle of correspondence that this aspect of the application has been withdrawn. It is the evidence of both applicants. The second applicant didn't apply in respect of this incident, the first applicant did, but in respect of both applicants they are not applying for this incident on the basis that they did not, even thought they have been convicted of this offence, they did not commit this offence.

CHAIRPERSON: What was the offence?

MR WILLS: It was - I can refer you to the ...(intervention)

INTERPRETER: The speaker's mike is not on.

MR WILLS: ... page 81 of the bundle, and that is CC 98/92, it's three counts of murder. Now I place on record the advice, Mr Chairperson. The advice that I've given the applicants is that they are only, according to my understanding of the law, entitled to apply for amnesty in respect of acts which they've actually committed and the evidence to me is clearly, despite the fact that they've been convicted, that they were not involved in this, that my advice has been, well then this obviously isn't the correct forum to use and circumstances permitting I've advised that the only thing that one can do in these circumstances is an application for a re-opening of the criminal trial which is obviously beyond the scope of this Committee.

ADV DE JAGER: Weren't they convicted on the basis of common purpose ...(no microphone) although they didn't ...(no microphone), weren't they convicted on the basis of common purpose?

MR WILLS: My instructions are - with respect, Sir, I haven't gone into the full details of the circumstances surrounding that conviction. My instructions from the two applicants were that they were not there at all and they had absolutely nothing to do with this murder. So it wouldn't be as if one could stretch the law to indicate their inclusion on the basis of common purpose. My instructions are further that they knew about this murder, however the only reason why they knew about it, as the evidence will be given, was because they were part of a group of IFP supporters who were conducting their campaign against the ANC, against a number of targets and they were members of the group that did in fact commit this crime, and so they heard about it after these people had committed the crime but they had no part to that. Their instructions to me are that they had no part in that incident whatsoever.

ADV DE JAGER: ...(indistinct) not in the planning either?

MR WILLS: Not in the planning or anything.

CHAIRPERSON: ....(indistinct) that those are the offences for which the sentences are recorded on page 96?

MR WILLS: That is indeed so, Mr Chairperson.

MS PATEL: Sorry, if I may in response to the Honourable Committee Member's question. In respect of the second incident for which they withdraw the application they were not convicted on the basis of common purpose, but in fact direct involvement in the incident itself.

CHAIRPERSON: So we are strictly speaking not concerned with that because this application relates offences other than those?

MR WILLS: Yes, that is true, Mr Chairperson. We are actually only going to deal with - we are applying for amnesty for one incident and that is the murder of ANC member, Thabani Mgobhozi and the assault, or sorry, the attempted murder of a certain Mhia, and that was all in the same incident.

CHAIRPERSON: The attempted murder of Mhia and the murder of Ngobese?

MR WILLS: It's Mgobhozi. If I could spell it for you Chairperson, it is: ...(intervention)

ADV DE JAGER: M-G-O-B-H-O-Z-I.

MR WILLS: That's correct, Chairperson.

MR WILLS: Sorry, there are a lot of formalities, but to clear confusion my learned friend has very properly revealed to me a statement which was submitted by the mother of the two applicants which we will be dealing with and I believe that my learned friend will be handing in as an exhibit, the original of this statement. In that statement there is also Mgobhozi mentioned, and I just want to make it clear at this stage that this person is a different Mgobhozi to the one in respect of which they're applying for amnesty for. This is a certain Hlanya Mgobhozi that is referred to in the statement of the mother of the applicants, that statement being dated - I can't see the date on it, I'm sorry, but it was supplied to me recently and we will be dealing with that in the evidence in due course. But they are not applying for amnesty for that incident.

ADV DE JAGER: So they are applying for the murder of Thabani and for the attempted murder of Mrs Ncane?

MR WILLS: Yes. Now - sorry, no, no, the attempted murder of a Mhiela - no, Mhia, a person ...(intervention)

CHAIRPERSON: ...(no microphone)

MR WILLS: That's correct, yes.

CHAIRPERSON: It appears at page ...(indistinct).

MR WILLS: That's correct. Now just finally, in that incident they were also, in fact the second applicant was convicted of an assault GBH and it arose from the same incident. I asked why - sorry, an assault GBH on a third person whose name, and just bear with me, appears on the indictment at page 45 of the bundle. It's a Michael Majola. Now they were charged with attempted murder in respect of this matter but the second applicant was convicted of assault GBH in respect of that matter and he hasn't formally applied for amnesty in respect of that offence, in the sense that he didn't fill it out in his application form, but I move that that be included and the reasons being are that this incident occurred in the same, it was the same incident and the same occurrence and the reason, the only reason it wasn't included formally on the application form I submit with respect, was because the applicant wasn't advised and he simply was careless in the filling out of that form in that regard. I submit it's not a new application and it isn't outside the cutoff date because it refers specifically to the same incident that he's applying for in respect of the first two.

CHAIRPERSON: Well that's strictly speaking not an answer because he might have committed various offences at that time you know, the fact that they were all committed at that time in a particular place, and he applies for amnesty only in respect of one or two and not the others really means that he's out of time in respect of any other application which he wishes to make although the offences were committed at the same time, am I right?

ADV DE JAGER: Could you kindly tell us on what counts are you applying for each of the applicants?

MR WILLS: Certainly. I'm applying for both of the applicants in respect of Count 1. I'm applying for both of the applicants in respect of Count 2, and I'm applying in respect of the second applicant only in respect of Count 5.

Mr Chairperson, the only reason I advance, in case I didn't make myself absolutely clear, when I say at the same time, it was exactly the same incident as can be seen from I think pages, judgment in the matter. It was one incident where all of these crimes were committed in the sense that it was an attack on a particular household and all of the charges emanated from that particular attack.

CHAIRPERSON: ...(indistinct) is the one in which the complainant was Michael Majola?

MR WILLS: That is indeed so, yes.

CHAIRPERSON: ... separately for that offence?

MR WILLS: Yes, he got a separate sentence which is running concurrently with the sentences in respect of the first two counts. He received 1 year's imprisonment - sorry, on Count 5, I'm reading from page 76, he was sentenced to 1 year's imprisonment. 3 years of the imprisonment of sentence on Count 2 and the whole of the sentence on Count 5 are to run concurrently with the sentence on Count 1. So he did he get a separate sentence in respect of that assault conviction.

CHAIRPERSON: Thank you.

MS PATEL: Honourable Chairperson, if I may just at this stage. I do not have an objection to my learned colleague amending his papers as such, my only difficulty is that Michael Majola hasn't been notified as a victim.

CHAIRPERSON: Yes, that might present some difficulties. When were these offences committed, in 1990?

MS PATEL: That is correct, Honourable Chairperson.

MR WILLS: October 18, 1990.

CHAIRPERSON: ... knowledge, did Michael Majola give evidence at the trial?

MS PATEL: I think he did. Let me just double-check the record but I'm almost sure that he did, Honourable Chairperson.

CHAIRPERSON: ...(indistinct) you can ascertain whether he gave evidence at the trial and knew what was being said in connection with the assault on him, it might be a factor we'll take into account and we may proceed in his absence. In the meanwhile, you may call your first applicant.

MR WILLS: Yes, I'm ready to do so, thank you, Chairperson.

ADV DE JAGER: I've still got - on page 96 nothing is mentioned about Count 5, in the sentence.

MR WILLS: Yes, sorry, that is the sentence in regard to the application that has been withdrawn. The sentence in regard to this matter is on page 72.

ADV DE JAGER: ...(indistinct)

CHAIRPERSON: ...(indistinct)

MR WILLS: Sorry, not on 72, on page 76.

CHAIRPERSON: Yes, we see that. Well will Mr Mbuzeni Nsindane stand up?

MBUZENI M NSINDANE: (sworn states)

CHAIRPERSON: You may proceed.

EXAMINATION BY MR WILLS: Thank you, Chairperson.

Mr Nsindane, you have applied for amnesty by filling out application forms, you filled out two application forms.

MR NSINDANE: That's correct.

MR WILLS: Now you have applied for amnesty in respect of the murder of Thabani Mgobhozi and the attempted murder of a certain Thulani Mhia?

MR NSINDANE: That's correct.

MR WILLS: On your first application form you also applied for amnesty in respect of the murder of a Sipho Zaka, an SANDF member and Mrs Ncane, an ANC supporter.

MR NSINDANE: That's correct.

MR WILLS: Is it correct that you are withdrawing your application?

MR NSINDANE: That's correct.

MR WILLS: Why is it that you are withdrawing your application in respect of Zaka and Ncane?

MR NSINDANE: What I can explain is that I was not involved in that crime.

MR WILLS: Sorry, Mr Chairperson, I don't know which channel ... Thank you, thank you.

INTERPRETER: Should I repeat that?

MR WILLS: I'd appreciate that, thank you.

INTERPRETER: He said he is withdrawing because he was not involved in the crime.

MR WILLS: How do you know about that crime?

MR NSINDANE: The people who committed the crime came back and told us about it because they were one of group.

MR WILLS: Right, you were born the Bulwer district in 1975, is that right? - June 1975.

MR NSINDANE: That is correct.

MR WILLS: And from your application it is clear that you became a member of the Inkatha Freedom Party?

MR NSINDANE: That's correct.

MR WILLS: Can you tell us how it came about that you became a member of the Inkatha Freedom Party?

MR NSINDANE: Yes, I can explain.

MR WILLS: Please proceed.

MR NSINDANE: I joined the IFP when I was still young. I liked Inkatha even when I was at school and then I joined the IFP in 1990.

MR WILLS: And as a member of Inkatha, what did you do?

MR NSINDANE: We kept guard at rallies and we were also in charge of the youth.

MR WILLS: And did you learn anything about the ANC while you were a member of Inkatha?

MR NSINDANE: That's correct, we did learn something.

MR WILLS: Tell us.

MR NSINDANE: The ANC was known as an enemy. They were supposed to be very dangerous and they were supposed to be eliminated from the areas so that we could be free.

MR WILLS: Now I see from your application that you got involved in what could loosely be described as military activities, when you were with the IFP, is that correct? You conducted violent attacks on various people?

MR NSINDANE: That is correct.

MR WILLS: Now was this in some form of structure, was there a leadership involved and if so, can you tell us what the position was?

MR NSINDANE: Yes, there were leaders from the Amahlonga area. Those were our superiors.

MR WILLS: Who were those people?

MR NSINDANE: It was Thulani Dlamini, Vimbela Lfanonokhwela

...(intervention)

CHAIRPERSON: Just give that to us slowly because I'd like to take the names down if you'll give me the names. The one was Dlamini, what was the name of the second person?

MR NSINDANE: Vimbela _{Lfanonokhwela}.

CHAIRPERSON: How do you spell that?

INTERPRETER: The first name is V-I-M-B-E-L-A and the second name is L-F-A-N-O-N-O-K-H-W-E-L-A.

CHAIRPERSON: Oh my, you'll have to go over that again please.

INTERPRETER: M-F-A-N-L-O-K-H-W-E-L-A.

CHAIRPERSON: Thank you very much. These were the leaders under which they carried these activities, is that it?

MR WILLS: Yes, they were some of them. I don't think the applicant has finished.

Can you name all of the person who occupied leadership positions?

MR NSINDANE: As well as Bongani Dlamini, Doris Nxwane as well as Mrocks Mgade.

CHAIRPERSON: Could you spell that?

INTERPRETER: I think it's M-R-O-C-K-S.

MR WILLS: Is Mrocks Mgade also known as Mkokodiwe Alfred Mgade?

MR NSINDANE: His other name is Mpogoto Mgade.

MR WILLS: Now what did these people do or what did these people tell you in relation to your activities and the activities of the youth?

MR NSINDANE: They were the people who were at the forefront who gave us instructions on what to do to ANC members.

MR WILLS: Well tell us, what were those instructions?

MR NSINDANE: That we should kill them so that they should not be in the area, so that ANC will not be in the area.

MR WILLS: And why did you listen to them?

MR NSINDANE: They were our superiors and they were elderly.

MR WILLS: Now you've applied for amnesty in respect of this incident which occurred on the 18th of October where Thabani Mgobhozi was killed. Can you tell the Committee in detail how that came about, did anybody tell you to conduct the attack? Tell us exactly what happened and who you were with.

CHAIRPERSON: Just give me that date again.

MR WILLS: It was the 18th of October 1990, Mr Chairperson.

CHAIRPERSON: Thank you.

MR NSINDANE: What I can explain is that we planned this amongst ourselves although our leaders had knowledge about it.

CHAIRPERSON: What does that mean?

MR NSINDANE: I mean that on the actual date that we planned the attack we were by ourselves but they were aware that we were going to launch that attack.

MR WILLS: Continue.

MR NSINDANE: We went to an area called Three Twenty in Amahlonga to plan to the attack to kill Thabani Mgobhozi because he was the one who was identified to be troublesome.

MR WILLS: Was this planning done on the same day of the attack or was it before?

MR NSINDANE: What I can say, it was a day before we attacked.

MR WILLS: Just carry on.

MR NSINDANE: We planned at Three Twenty and then we attacked him. After he had actually pointed the gun at us, pointed a gun at myself and my brother - we actually came back after coming back from where we were off to ...(intervention)

CHAIRPERSON: I think you must be a little firm with the evidence. They planned the attack and the following day they do the attack, precisely what do they do, where do they do it? He's going around saying after the attack we did this that or the other, now I'd like to know precisely what transpired in the actual attack and where did that take place.

MR WILLS: Yes, indeed so, there are a number of questions arising from what he's said, Mr Chairperson, but I will lead him a little bit more specifically.

Tell us - you say that you planned the attack the day before, you use the words "we", now who were the people that you refer to when you say "we"?

MR NSINDANE: We planned to attack, there were six of us, Gigi Mgobhozi ...(intervention)

MR WILLS: Just go slowly because the Committee Members have to write these things down. Carry on.

MR NSINDANE: Mo Khumalo, M-O Khumalo, Fofo Gumede.

MR WILLS: Ja?

MR NSINDANE: Myself, Mbozeni Nsindane.

MR WILLS: It's your brother?

MR NSINDANE: It's me.

INTERPRETER: That is himself.

MR NSINDANE: Zwandile Johnson Nsindane.

MR WILLS: So just before - were those all the people involved, there was a total of six?

CHAIRPERSON: ...(no microphone)

MR NSINDANE: Yes, indeed.

CHAIRPERSON: You see you mentioned Khumalo, Gumede, yourself and your brother, who was the other person?

ADV DE JAGER: Did he not mention ...

CHAIRPERSON: He mentioned Khumalo, but before Khumalo he mentioned a name.

ADV DE JAGER: Khumalo, Gigi Mgobhozi, then himself and his brother, Fofo Gumede - yes, that's five.

Was there anybody else that you haven't mentioned?

MR NSINDANE: ...(no English interpretation)

ADV DE JAGER: Have you got the name of the sixth one?

MR WILLS: Sorry, was a Batana Vzanibe involved?

MR NSINDANE: Yes, he was involved.

CHAIRPERSON: Could you spell that name for us?

MR WILLS: On page 44 of the bundle it's B-A-T-A-N-A, that's his first name and the surname is spelt:

V-Z-A-N-I-B-E.

Now just for clarity's sake I'd like to refer the Committee to page 44, which is the indictment, 44 of the bundle.

The person who is cited on the indictment as number 2, that is Patrick Mandla Mkongo, he was not present, is that correct?

MR NSINDANE: Yes, it is so.

MR WILLS: And the person who is cited as number 6, Thulani Mityane, he was not present, is that correct?

MR NSINDANE: Yes, it is like that.

MR WILLS: But there was a certain Nklanktla Mityane who was present, is that right?

MR NSINDANE: Yes.

MR WILLS: And this is a different person to Thulani?

MR NSINDANE: Yes, he is a brother, they are brothers by surname.

MR WILLS: Yes, and then Victor Fofo Gumede is the same Gumede you mentioned earlier, is that correct?

MR NSINDANE: Yes.

MR WILLS: Thank you. Okay, you planned the attack, now tell us exactly what you did.

CHAIRPERSON: Let's get this straight, when they say they planned the attack, these were the six people who planned the attack.

MR WILLS: Thank you, Mr Chairperson, I'll go into that in more detail.

CHAIRPERSON: And now we are talking about who carried out the attack.

MR WILLS: Yes.

Were the six persons that you've mentioned, were they all involved in the planning of the attack?

MR NSINDANE: Yes, those are the people who were with.

MR WILLS: And did those same six people come with you to conduct the attack?

MR NSINDANE: Yes, Fofo is the one who actually went to check Thabani Mgobhozi and them, that they are around or not, and then he came back, told us that they are there and then we went to attack after he had actually indicated to us that the people are around.

MR WILLS: And now can you tell us where this attack took place and exactly what happened?

MR NSINDANE: It occurred at the Eplazi where we attacked, where Thabani resided.

CHAIRPERSON: Just wait, where at what place?

MR NSINDANE: It's actually Eplazi ...

CHAIRPERSON: How do you spell that?

MR WILLS: That's E-P-L-A-Z-I, it's an area.

CHAIRPERSON: E-P

MR NSINDANE: E-P-L-A-Z-I.

MR WILLS: It's Amahlonga area under Chief Mokwade.

CHAIRPERSON: Alright, so that is where the attack was carried out.

MR WILLS: Yes.

Which home did you attack?

MR NSINDANE: It was nearby Thabani Mgobhozi's home, but not at his home.

MR WILLS: Can you tell us what happened and how the attack was conducted?

MR NSINDANE: We went there and on our arrival after being told by Fofo that those people are around, and then we surrounded the house. My brother who is sitting next to me, Zwandile Johnson Nsindane knocked at the door and they opened. Mhia actually who got injured is the one who opened the door.

That's when my brother started to shoot as he carried a gun. We all entered and Thabani Mgobhozi was then shot. The rest ran away. We actually catches up, took Thabani and stabbed him because he was already shot.

MR WILLS: Who stabbed him?

MR NSINDANE: I also stabbed him.

MR WILLS: And you say your brother was armed with a firearm, did anybody else have a firearm?

MR NSINDANE: No, I think he was the only one, as I have just indicated.

MR WILLS: And what weapons did the other assailants have?

MR NSINDANE: Spears.

MR WILLS: And what did you have?

MR NSINDANE: I also was carrying a spear.

MR WILLS: And when you say you stabbed Thabani, you used the spear to stab Thabani, is that correct?

MR NSINDANE: Yes, it is the truth.

MR WILLS: Yes, continue, what happened after that?

MR NSINDANE: We stabbed him after he was shot and then we fled. We actually hid in a forest and thereafter the police came looking for us, after realising that we are the ones who killed Thabani Mgobhozi. We ran away. It went on and we were ultimately arrested and implicated or charged.

MR WILLS: Yes, now did you tell anybody about this attack, possibly after you'd finished the attack, any of the community?

MR NSINDANE: Yes, I think amongst those who were in the leadership.

CHAIRPERSON: ...(indistinct) some doubt, he "thinks".

Was there ...(indistinct) reported to anybody by ...(indistinct).

MR NSINDANE: ...(indistinct) actually implicated that yes, there is, our leaders knew about it.

MR WILLS: Did you tell the leaders after the attack?

MR NSINDANE: Yes, we did tell them.

MR WILLS: Who did you tell?

MR NSINDANE: We told Thulani Dlamini, Vimbani Mfanlo Kwela, Bongani Dlamini, Doris Nchoane, Joseph Molefe, Makeba Mgobhozi, Dumsani Xwensa and Mrocks.

MR WILLS: Now - sorry, if the Committee will just bear with me, I've just lost my train of thought.

CHAIRPERSON: Yes, you were asking whether they had reported to anybody and to give you the names of the people to whom they reported.

MR WILLS: Yes, thank you, Mr Chairperson.

What was their response when you reported this attack to them?

MR NSINDANE: They looked happy and actually thought that we have done a good thing about this.

MR WILLS: Did these people know the deceased?

MR NSINDANE: Yes, they knew him.

MR WILLS: Now why did you commit this attack?

MR NSINDANE: We were told that we are supposed to attack ANC people in order to live freely at Amahlonga.

MR WILLS: And who told you that?

MR NSINDANE: They are the leaders that I've actually counted just now.

CHAIRPERSON: You say you were told to attack ANC people. Now talking about the deceased himself, who told you to attack this particular deceased?

MR NSINDANE: What I can say is that our leaders were in line that we should kill Thabani Mgobhozi.

CHAIRPERSON: Did they say so in so many words to you, or did they hear you planning that you were going to kill this man and said nothing about it?

MR NSINDANE: They heard when we were planning and they didn't say anything.

CHAIRPERSON: Yes, in other words it isn't the leaders who told you "kill this man", you amongst yourselves decided you were going to kill him and the leaders came to hear about it?

MR NSINDANE: Yes, it is like that.

ADV DE JAGER: Now who chose him as the victim, did you do it or did somebody else in your group do it, or who said you should kill this specific person, Mgobhozi?

MR NSINDANE: In our group - all of us as the members of that group actually were in line with that he should be killed.

MR WILLS: Why did you choose this person specifically?

MR NSINDANE: He was well-known and that he was an ANC person and he actually used to come at our houses looking for us.

MR WILLS: So what about the person who was injured, what about ...(intervention)

CHAIRPERSON: Can you just explain that to me, I don't understand what that means. "He was well-known and he used to come to our houses to look for us", what does that mean.

MR WILLS: Sorry, Mr Chairperson, I will go on that. I thought he mentioned he was well-known as an ANC member, I think he said on record.

What do you mean by the fact that he was well-known as an ANC member?

MR NSINDANE: What I'm trying to say is that he used to come looking for us, knowing very well that we were IFP people. Because I remember an incident when he arrived at home and he told them at home that they should buy two coffins, mine and my brother's who is sitting next to me, and they must actually buy the mourning clothes because he wherever he finds us he will kill us.

CHAIRPERSON: Does he come to your house and tell your people that?

MR NSINDANE: Yes, that's what he said.

CHAIRPERSON: To whom?

MR NSINDANE: He told my family.

CHAIRPERSON: Were you present?

MR NSINDANE: No, I was not present.

CHAIRPERSON: Did he come alone?

MR NSINDANE: That was never explained to me, but his name was actually the one that was mentioned.

ADV SIGODI: Who mentioned this to you?

MR NSINDANE: At home by my mother, from my mother.

ADV SIGODI: Is your mother still alive?

MR NSINDANE: Yes, she is.

MR WILLS: She's actually present today, Ms Committee Member.

And apart from that, what else was there in the behaviour of this Thabani, which led you to believe that he was affiliated to the ANC?

MR NSINDANE: I can explain that at one instance were just going looking for another group who were IFP members and then he had a gun and he pointed the gun at us, to me and my brother. We couldn't actually escape in that particular instance. We were lucky because it was during the day, he did not shoot us. Then he went back to his home. We proceeded ...(intervention)

CHAIRPERSON: How long ago was that, or when was that incident when he pointed a firearm at you and your brother?

MR NSINDANE: We had not planned to kill him by then.

CHAIRPERSON: No, my question was, when was that incident, can you recall, how long ago?

MR NSINDANE: I think it was in 1990.

ADV DE JAGER: Was it a month, a week, or a long time before you planned to kill him?

MR NSINDANE: I think it was about three days before.

MR WILLS: You say in your application, and I'm referring to page 7, that:

MR NSINDANE: Yes, it is so.

MR WILLS: So how did you know this?

MR NSINDANE: I knew because we were staying with them in the area and we grew up together.

MR WILLS: So apart from the two instances you've mentioned, were there other instances which led you to believe that Thabani was a prominent or an active ANC member? - other things that he did.

MR NSINDANE: ...(no English translation). Yes, I can say that there are other incidents.

MR WILLS: I'm not only referring to incidents of violence, possibly he might have addressed rallies or got people, or spoke about the ANC and got people to join the ANC, or ... I'm trying to establish how you knew that he was involved in the ANC to the extent you claim he was in your affidavit.

MR NSINDANE: I knew that he was an ANC member. As a person that I grew up with, I knew that he is an ANC member.

MR WILLS: Now you were eventually convicted of this and sentenced to, I think it was 10 years imprisonment, is that correct?

MR NSINDANE: Yes.

MR WILLS: And you're serving that sentence at Westville Medium B Prison at the moment?

MR NSINDANE: Yes.

MR WILLS: Now you ...(intervention)

CHAIRPERSON: Is this just for the murder of ...(indistinct)

MR WILLS: Mr Chairperson, it's for the murder and the attempted murder. The effective sentence was 10 years because of the way His Lordship Page structured the sentence. He received 10 years for the murder ...(intervention)

ADV DE JAGER: You're referring to page?

MR WILLS: 76, the bottom of page 75 and then 76. 10 years with two suspended 5 years for the murder and then five years imprisonment for the attempted murder which would run concurrently with the murder charge, so that's effectively a 10 year sentence.

MR NSINDANE: That's correct.

MR WILLS: Now you - can you tell us who assisted you in filling out your amnesty application form?

MR NSINDANE: Mfole.

MR WILLS: And where does this Mfole come from?

MR NSINDANE: From Ulundi.

MR WILLS: Do you know if he's a member of any political party?

MR NSINDANE: ...(no English translation)

MR WILLS: Well tell us.

MR NSINDANE: Inkatha Freedom Party.

MR WILLS: Is this Ntwe Mfole?

MR NSINDANE: Yes, I think it's like that.

MR WILLS: And did he influence you in any way in regard to filling out the application?

MR NSINDANE: Yes, he was telling me that I must actually put the case of Mrs Ncane and Sipho Zacha, and say that I should actually ask for amnesty for that one as I'm actually charged for that. That actually led for me to create that application. That is why I'm now withdrawing it because I realise that that wasn't the truth because the case actually I do not know it.

MR WILLS: And is that why you later submitted a second application which doesn't include those incidents?

MR NSINDANE: Yes, it is like that.

MR WILLS: Now did anybody else from the IFP come and visit you in prison in order to give you advice on how to fill in your application form?

MR NSINDANE: Yes, there was.

MR WILLS: Can you tell us?

MR NSINDANE: Baba Captain Hlengwa. He said those people are actually implicated, we should put their names down there, we should fill the application form otherwise.

MR WILLS: So I notice in both your application forms that you make no mention of one, the leadership who knew what you were doing, and second, the other persons other than your brother, who were involved in the attack. They're not mentioned in your application form, can you explain that?

MR NSINDANE: Yes, it is the truth.

MR WILLS: But now why didn't you mention these people's names in your application form?

MR NSINDANE: I was afraid that they may actually attack my family.

MR WILLS: Did any of the parties that saw you from the IFP, influence you in regard to the omission of these names?

MR NSINDANE: Yes, it is like that.

MR WILLS: Well tell us, who?

MR NSINDANE: Mr Captain Hlengwa. He said we shouldn't include people's names.

CHAIRPERSON: Can I just ask, your application form, is this in your handwriting? ...(indistinct).

MR NSINDANE: Yes.

CHAIRPERSON: ...(indistinct).

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Yes, what is written on page 6 and 7 of the application form, is that your handwriting?

MR NSINDANE: No.

CHAIRPERSON: Whose handwriting is that?

MR NSINDANE: Another person who was helping us.

CHAIRPERSON: What is his name?

MR NSINDANE: Mfole.

CHAIRPERSON: All the words that are written there are Mr Mfole's words which he told you he was writing, or did you tell him to write?

MR NSINDANE: In this statement 19, I think it was me who was telling him what to write.

CHAIRPERSON: You think?

MR NSINDANE: Or I say it is like that.

CHAIRPERSON: And when you were filling in this form was your brother present?

MR NSINDANE: No, he wasn't around.

CHAIRPERSON: Yes, carry on.

MR WILLS: Thank you, Mr Chairperson.

How do you feel about what you've done, in particular in relation to this murder?

MR NSINDANE: I'm actually - I did not do this intentionally. I would actually apply for amnesty and ask for forgiveness and those people that I have actually wronged I ask for their forgiveness. I feel bad about this.

MR WILLS: If the Committee could just bear with me for a second, I just want to check my notes.

CHAIRPERSON: Yes.

MR WILLS: Thank you, Mr Chairperson.

Just finally, whilst this is the only application you, I mean this is the only incident you're applying for amnesty for, is it not so that you were involved in a number of other acts of violence as a part of this IFP group?

MR NSINDANE: Yes.

MR WILLS: And in relation to those acts you are presently assisting the State with investigations into those incidents, is that right?

MR NSINDANE: Yes.

MR WILLS: Is it not so that you will be appearing at the High Court in Pietermartizburg on the 18th of February to give evidence in relation to some of these incidents, on behalf of the State?

MR NSINDANE: Yes, it is the truth.

MR WILLS: And that you've given information to various investigating officers in order to assist them with their investigations into various incidents?

MR NSINDANE: Yes, it is the truth.

MR WILLS: Thank you, Mr Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MR WILLS

CHAIRPERSON: You told us you were involved in a number of acts of violence.

MR NSINDANE: Yes, it is the truth.

CHAIRPERSON: During what period is that?

MR NSINDANE: Other instances, 1989 and 1990.

CHAIRPERSON: What was the kind of incidents or acts of violence that you were involved in?

MR NSINDANE: It was killing. Those were the killing incidents.

CHAIRPERSON: How many?

MR NSINDANE: Two.

CHAIRPERSON: What else?

MR NSINDANE: Nothing further.

CHAIRPERSON: And you were not arrested for those offences?

MR NSINDANE: No.

CHAIRPERSON: To your knowledge was anybody else arrested for those two incidents?

MR NSINDANE: No-one.

CHAIRPERSON: Were you alone when those two offences were committed?

MR NSINDANE: No, I wasn't alone.

CHAIRPERSON: How many of you were there?

MR NSINDANE: I think we were just a few, I cannot remember them offhand just now.

CHAIRPERSON: And what was the name of your victims that you killed?

MR NSINDANE: Thokozani Xaba.

CHAIRPERSON: I'd like you to spell that name please.

MR NSINDANE: T-H-O-K-O-Z-A-N-I, and the surname is

X-A-B-A.

CHAIRPERSON: Yes, and the next one?

MR NSINDANE: And Hlanya Mgobhozi. The spelling for H-L-A-N-Y-A. The surname is M-G-O-B-H-O-Z-I.

CHAIRPERSON: Ms Patel, are there any questions you wish to up to this witness?

CROSS-EXAMINATION BY MS PATEL: Yes, thank you, Honourable Chairperson.

Mr Nsindane, can you just refresh my memory, when did you join the IFP, was it 1990?

MR NSINDANE: Yes, it is like that.

MS PATEL: Did you not mention at the trial that you'd only joined the IFP in 1991?

MR NSINDANE: You mean when I was in Court?

MS PATEL: Yes.

MR NSINDANE: Yes, I said that. The reason is that I was confused because they were hitting me. I actually lost a tooth there, I lost my tooth.

CHAIRPERSON: Well that's the kind of contradiction that isn't really very material. is it?

MS PATEL: And your brother, were you both members at the time of this incident with the IFP, you're sure about that?

MR NSINDANE: Yes.

MS PATEL: Alright. Did you make a statement to the police after you were arrested for this incident?

MR NSINDANE: Yes, I did but it wasn't a fee statement, I wasn't free when I made it.

MS PATEL: Would you like to explain to us?

MR NSINDANE: They were actually - I was making the statement while they were beating me, so I cannot clearly remember exactly what it was all about.

MS PATEL: Would you like me to place a copy of the statement before you?

CHAIRPERSON: I didn't hear what you're saying.

MS PATEL: I'd like to place a copy of the statement, he says he can't recall the statement.

CHAIRPERSON: ...(indistinct)

MS PATEL: Well there are material contradictions between what he stated then and what he is stating now, Honourable Chairperson.

CHAIRPERSON: He said he made that statement under duress, he was beaten up. ....(indistinct)

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Yes. If he said he made that statement because he was beaten up and didn't freely make it, is there any point in having that statement placed before us?

MS PATEL: Honourable Chairperson, I'm not sure that that's exactly what he had stated. Now he said he was beating up regarding my question relating to the exact time of his membership, not relating to the statement that I'm now referring him to, unless I misunderstood. If ...(intervention)

INTERPRETER: No, you misunderstood.

MS PATEL: Oh, okay, alright, then I withdraw the question, thank you.

Regarding the assault on Mr Majola, you haven't testified or given us any information as to that. I accept it is your brother who was convicted of that incident, did you not have any part in that assault on Michael Majola?

MR NSINDANE: I was around but Majola is not actually part of my attacks.

MS PATEL: Were you not one of the people who followed him when he tried to escape and eventually gave up?

MR NSINDANE: Yes, I think it's like that, but I didn't catch up with him.

MS PATEL: Okay. How many times did you stab the deceased, Mr Mgobhozi?

MR NSINDANE: Several times, countless.

MS PATEL: Were you the only person who stabbed him?

MR NSINDANE: And the others, although I cannot remember or actually take heed of who was really actually stabbing, but the others were stabbing as well.

MS PATEL: Okay. Was he only stabbed and shot, were there no other, besides that, no other assaults that took place on him?

MR NSINDANE: It is like that.

MS PATEL: Can you recall Richard Mkhize, he testified at the trial on behalf of the State? He was one of the people who was in the house that was attacked.

MR NSINDANE: Yes, there is something that I remember about that.

MS PATEL: Do you recall that he had said that after everybody had gone out to chase Mr Majola and came back, that thereafter a further assault took place upon the deceased, that he was in fact hit with bottles that were found on the premises?

MR NSINDANE: Yes, I do remember now that you are actually explaining it to me.

MS PATEL: And did that happen?

MR NSINDANE: Yes, that did happen.

MS PATEL: And who was responsible for that?

MR NSINDANE: It was myself.

MS PATEL: Alone?

MR NSINDANE: Yes.

MS PATEL: And the rest of the people, were they just standing around?

MR NSINDANE: The others were still chasing the ones who were running away.

MS PATEL: Are you saying that you are the only person who came back and then assaulted Mr Mgobhozi further?

MR NSINDANE: I did not ...(indistinct), I remained in the house, I did not leave the house.

MS PATEL: But you have just told us that you left the house to chase Michael Majola. Because the further assault that I'm talking about, according to the evidence at the trial, took place after everybody had chased, after everybody had returned from chasing Mr Majola.

MR NSINDANE: I was a bit confused. Yes, we did go and come back.

MS PATEL: Okay. And finally, you're the only person who then hit him with the bottles as well, when you got back?

MR NSINDANE: Yes, it is so.

MS PATEL: Can I ask why you did that, the man had already been shot, he'd been stabbed seven times, according to the post mortem report, where was the need to assault him further?

MR NSINDANE: By that time my belief was that I was actually to ensure that by the time I leave him he is dead.

MS PATEL: And the rest of the people who were in the house at the time, did you know them?

MR NSINDANE: Some I knew, some I did not.

MS PATEL: Those that were in fact hurt, did you know them to be ANC members? Did you choose ...(intervention)

CHAIRPERSON: ...(indistinct) evidence of anybody else being hurt?

MS PATEL: Well there's the ...(intervention)

CHAIRPERSON: ...(indistinct) for one who was ...(indistinct) attempted murder.

MS PATEL: That's who I'm referring to.

CHAIRPERSON: Apart from Majola, was there anybody else that was murdered?

MS PATEL: No, no, Honourable Chairperson.

CHAIRPERSON: ...(indistinct)

MR WILLS: Possibly there's a bit of confusion here, Mr Chairperson, there were three people who were actually injured. There was the deceased obviously, then there was this Mhia who sustained gunshot wounds and then there was the Majola who was assaulted.

CHAIRPERSON: Thank you. Carry on.

MS PATEL: Did you target those specific victims because you knew them to be ANC members or did you just target them because they were in the house at the time?

MR NSINDANE: We attacked them because they were ANC members.

MS PATEL: You've just stated now that you didn't know all the people who were in the house.

MR NSINDANE: Yes, it is so.

MS PATEL: Who didn't you know?

CHAIRPERSON: ...(indistinct) only three of them.

MS PATEL: No, no, Honourable Chairperson, there was a Richard Mkhize who managed to avoid, he testified at the hearing, he managed to avoid being assaulted and in fact hid under the bed. He was the one who testified regarding the further assault with the bottles, ja.

MS PATEL: Mr Mkhize who testified at the hearing, did you not know him?

MR NSINDANE: Yes.

MS PATEL: And how did you know Thulani Mhia?

MR NSINDANE: I knew him as an ANC person who was actually in good relation with Thabani Mgobhozi.

MS PATEL: And Michael Majola?

MR NSINDANE: He was a friend but I did not know whether he was an ANC member or not.

MS PATEL: Can you recall whether Mr Mgobhozi, how long he'd been resident in the area?

CHAIRPERSON: Is it material at this stage?

MS PATEL: The applicant are saying - this applicant has testified to the fact that the deceased had in fact been a troublemaker, an ANC troublemaker in the area for a long time. My instructions are in fact that the deceased had left the area by this stage and had in fact only returned to visit his sister during that week in which he was killed.

CHAIRPERSON: So he wasn't living in the area?

MS PATEL: Those are my instructions, no, that he wasn't living in the area at the time of this incident.

CHAIRPERSON: ...(indistinct)

INTERPRETER: Sorry, what would be your question then to him?

MS PATEL: My question is that according to my instructions the deceased wasn't resident in the area at the time that the incident had occurred, but he had in fact fled the area some time before with his mother and the rest of the family, but that he had returned to the area during that week of the incident to visit his sister.

MR NSINDANE: I think that's a mistake.

CHAIRPERSON: Are you about to finish, otherwise we'll take a short adjournment at this stage.

MS PATEL: Perhaps we should take the short adjournment, thank you.

CHAIRPERSON: We'll take a short adjournment, resume in 15 minutes.

ON RESUMPTION

MBUZENI M NSINDANE: (s.u.o.)

CROSS-EXAMINATION BY MS PATEL: (cont)

Thank you Honourable Chairperson.

Mr Nsindane, you stated earlier on that the statement that you mae to the police, that it was made under duress, is that correct?

Sorry, Honourable Chairperson, it appears that the interpreters ...

CHAIRPERSON: Aren't they here?

MS PATEL: No.

CHAIRPERSON: Yes?

MS PATEL: Shall I start again?

CHAIRPERSON: Yes, please.

MS PATEL: Mr Nsindane, you stated earlier that the statement that I referred you to that you made to the police after you were arrested for this incident, that this statement was in fact made under duress, is that correct?

MR NSINDANE: That's correct.

MS PATEL: Okay. Can you - you've had an opportunity to look through the statement now during the break, is that right?

MR NSINDANE: That's correct.

MS PATEL: Are you saying that everything that is stated in this statement was made under duress - sorry, no, let me rephrase, my apologies.

CHAIRPERSON: Have you read that statement?

MR NSINDANE: It was read to me.

CHAIRPERSON: What page is it?

MS PATEL: Page 31, 32 and 33, Honourable Chairperson.

CHAIRPERSON: In whose handwriting is that?

MR NSINDANE: I think it was written by the police.

CHAIRPERSON: Yes, proceed.

MS PATEL: Thank you.

The information contained in the first paragraph of that statement stating that the deceased had in fact, as you'd later decided, had insulted you, was that correct or not?

MR NSINDANE: It is not correct because when I made the statement I was assaulted.

CHAIRPERSON: I think you just put - which portion of the statement that you've made is incorrect?

MR NSINDANE: I do not want the statement to be accepted or be accepted as valid because I was making it under duress.

CHAIRPERSON: No, I understand that, you've told us that. Which portion of the statement is not the truth?

MR NSINDANE: I would say that it is not true in its entirety.

MS PATEL: But Mr Nsindane, there's certain information in your statement, let me put it to you, that you had verified in fact this morning in your evidence-in-chief. You stated that the deceased had threatened you and your brother prior to this incident, and that information is also contained in this statement made to the police. If you look at the 2nd paragraph on page 31, that wasn't a lie, that was what you told us today as well.

ADV DE JAGER: Can you read English, do you understand English? Can you read and write English?

MR NSINDANE: I cannot read English.

MS PATEL: Perhaps I should just ask for the relevant portions to be interpreted again to the applicant. Page 31, second paragraph:

That's the truth, isn't it?

MR NSINDANE: Yes, that is true, but that statement was not made voluntarily.

CHAIRPERSON: Was not made what? What did he say, that statement was not made ...?

INTERPRETER: Voluntarily.

CHAIRPERSON: Yes, we're now not talking about if it was made voluntarily or not because you've told us that, we are going through portions of your statement which seems to be what you have told us this morning. That is what we are now doing, do you understand?

MR NSINDANE: Yes, I do.

CHAIRPERSON: So that would be the truth because you are repeating it this morning?

MR NSINDANE: Yes, there are parts that are true.

CHAIRPERSON: Yes, carry on.

MS PATEL: Are you saying that there are parts of the statement that are true?

MR NSINDANE: Yes, if I can just refer to what has just been mentioned, it is the truth.

MS PATEL: And it's also true that - you mentioned earlier that Fofo had gone to check whether the deceased, Mgobhozi was in fact at home at the time and that he came back and reported to you, and based on that information you then went out, is that correct?

MR NSINDANE: That is correct.

MS PATEL: Okay, that's also stated in your statement.

MR NSINDANE: Yes, I understand that.

MS PATEL: Okay. You stated in your statement that Fofo was in possession of a firearm and that it was a home-made firearm, is that correct?

MR NSINDANE: That is not true.

MS PATEL: Is that not true. Why did you say this?

MR NSINDANE: Because of the assaults that I suffered I was not sure what to say and what not to say then.

MS PATEL: And you've also stated in your statement that you had a spear and that your brother had one as well.

MR NSINDANE: I am the one who had the spear, my brother did not.

MS PATEL: Okay. And did Fofo fire a shot at the deceased?

MR NSINDANE: He did not because he did not carry a firearm.

MS PATEL: You stated further in the statement that you had stabbed the deceased with a spear in the chest, and you were very specific, you stated that you stabbed him about six times which is very close to the independent evidence of the post-mortem report, contained in the post-mortem report where the deceased was stabbed seven times, so that is the truth.

MR NSINDANE: Yes, I would say it is the truth.

CHAIRPERSON: What about concentrating on what is not the truth, Ms Patel.

MS PATEL: You stated in your statement that Fofo had fired a further three shots inside the house after the deceased was shot.

MR NSINDANE: That is not true.

MS PATEL: You also stated that prior to the incident you'd never had any quarrel with the deceased.

MR NSINDANE: That is not true.

MS PATEL: You've also stated in the statement that you joined the IFP at the beginning of 1991.

MR NSINDANE: That is also not true.

MS PATEL: Can you then explain why the statement contains certain truths and certain untruths, why didn't you just deny? If you say that the statement was made under duress, why didn't you just deny involvement in the matter, why did you implicate your brother and Fofo and yourself?

MR NSINDANE: It is because I was confused, I did not know what to do anymore.

MS PATEL: And why did you make up the story about the deceased having insulted you, where was the need for that? - because that gave you a motive in a sense, not so?

MR NSINDANE: I had no other option because the police wanted me to make a statement. I had to create a statement.

MS PATEL: The question still remains, why did you implicate your brother and Fofo and yourself, why didn't you protect everybody?

MR NSINDANE: I decided that I should say whatever came to my mind so that they would leave me alone.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions.

ADV SIGODI: How old were you at the time of the killing of the deceased?

MR NSINDANE: I think I was 13 if I'm not mistaken.

ADV SIGODI: When were you born?

MR NSINDANE: In 1975.

MR WILLS: It's 15 years.

CHAIRPERSON: ...(indistinct)

ADV SIGODI: Were any of your family members IFP members, your parents?

MR NSINDANE: I did not have knowledge thereof.

ADV SIGODI: In other words you do not know if your parents were IFP supporters?

MR NSINDANE: I do not know.

ADV SIGODI: Who recruited you to join the IFP?

MR NSINDANE: I started liking the IFP when I was still at school until I joined the party in 1990.

ADV SIGODI: I asked who recruited you to join the IFP.

MR NSINDANE: I went to join voluntarily.

ADV SIGODI: Were you just a supporter or did you have a more active role as an IFP person?

MR NSINDANE: I was in charge of protecting or guarding the youth at rallies.

ADV SIGODI: In other words, was it a leadership role that you had?

MR NSINDANE: No, it was not.

CHAIRPERSON: Any re-examination?

MR WILLS: No re-examination, thank you, Chairperson.

CHAIRPERSON: Yes, thank you.

CHAIRPERSON: ...(indistinct) applicant number 2 please. Will you please stand. Are you prepared to take the oath?

M J NSINDANE: (sworn states)

CHAIRPERSON: Thank you, you may sit down. Yes?

EXAMINATION BY MR WILLS: Thank you, Chairperson.

Mr Nsindane, you also made two applications to this Committee and prior to this hearing you went through them with me, do you recall that?

MR M J NSINDANE: Yes, I do remember.

MR WILLS: Now do you confirm the contents of those application forms which you filled in?

MR M J NSINDANE: Yes, I do confirm it.

MR WILLS: You've also heard the evidence of your brother describing the attack that occurred and the attack where Thabani Mgobhozi was killed and certain other people were injured, do you confirm what he says as being correct?

MR M J NSINDANE: Yes, I do confirm that it the truth.

MR WILLS: Do you confirm that you were armed with a firearm and it was you who shot Thulani Mhia initially, and then you who shot Mgobhozi?

MR M J NSINDANE: That is true.

MR WILLS: Just - sorry, I meant to mention something. I want to refer to page 5, sorry, page 17 of the bundle, Mr Chairperson, and it's page 5 of the first affidavit of the applicant. There is some writing next to the words N/A, which are short for not applicable and I'm just showing an extract of this to the applicant.

Do you see that writing on that application?

MR M J NSINDANE: Yes, I do.

MR WILLS: I'm looking at paragraph 11(b) and there's a whole lot of N/As and there's some writing next to it, was that writing on the application before you submitted it?

MR M J NSINDANE: No, it was not written before I submitted the application.

MR WILLS: And if you turn to page 18, there's some more writing there - sorry, the next page, you should have the next page. Sorry Mr Chairperson, if you can just bear with me, I'll point out the page to him. Just go to page 18. On paragraph 13(b) and, sorry, (b)1 and (b)2, there's also writing there, was that writing on it when you submitted the application? That is the writing again next to the words "not applicable", next to the abbreviated for not applicable.

MR M J NSINDANE: It was not there.

MR WILLS: Now you've - can you tell the Committee how you became involved in the IFP.

CHAIRPERSON: Before you go on, is there anything material on what is written here, are you going to refer us to what is intended to be written there?

MR WILLS: No, Mr Chairperson, just as a formality I just wanted to make sure that you knew what was on the application. I've looked at those names and it appears to me that they are some of the names that have been brought up in the leadership, in the question of leadership that I asked the previous applicant, which I'll get onto later but I'm not going to make any point. Just for formality I just wanted you to make sure what he actually wrote.

ADV DE JAGER: In paragraph 13 it seems to be the names of legal representatives.

MR WILLS: Sorry?

ADV DE JAGER: Or - I don't know, I thought it's names of legal representatives, for instance de Klerk of Information Centre, I don't know. Okay.

CHAIRPERSON: So we'll never know who wrote them. Carry on.

MR WILLS: Thank you, Mr Chairperson. I don't think - I don't know if you have the original served with you,

no but be that as it may.

How did you become involved in the IFP?

MR M J NSINDANE: I started being involved with the IFP when I arrived at the Amahlonga area in Umkomaas.

MR WILLS: And how did you become involved?

MR M J NSINDANE: When I grew up it was an organisation that I liked.

MR WILLS: And when did you actually become a member?

MR M J NSINDANE: I became a member in 1990.

MR WILLS: Did anybody recruit you?

MR M J NSINDANE: Nobody recruited me, it was something that I wanted to do by myself.

MR WILLS: Now you've heard the names that your brother gave in respect of person who had leadership positions in the IFP in your area, do you recall those names? I'll just mention some of those that your brother mentioned; Mrocks Mgade, do you know him?

MR M J NSINDANE: Yes, I do.

MR WILLS: Do you know Peter Johannes Molefe?

MR M J NSINDANE: Yes, I do.

MR WILLS: Do you know Vmbela Kwela?

MR M J NSINDANE: Yes, I do.

MR WILLS: Do you know Thulani Dlamini?

MR M J NSINDANE: Yes, I do.

MR WILLS: Bongani Dlamini?

MR M J NSINDANE: Yes, I do.

MR WILLS: Dumisani Ngwenya?

MR M J NSINDANE: Yes, I do.

MR WILLS: Singene Nowane, Doris?

MR M J NSINDANE: Yes, I do.

MR WILLS: Now who were these people?

MR M J NSINDANE: They were our leaders in the area.

MR WILLS: And your brother also mentioned the names of persons who accompanied you on the fateful, on the 18th of October 1990, when you attacked this house, do you remember those people? Do you confirm that the information he gave was correct?

MR M J NSINDANE: Yes, I do confirm what he said with regards to those people who were there, those that I remember.

MR WILLS: Now when you were a young man and you were a member of the IFP, what was your opinion in relation to, what opinion did you hold of person who belonged to the ANC?

MR M J NSINDANE: I was of the opinion that they were enemies.

MR WILLS: And what did your leadership say in relation to those people?

MR M J NSINDANE: They were against the existence of the ANC in the area.

MR WILLS: And did they tell you to do anything about that?

MR M J NSINDANE: With regards to this incident I do not remember them saying anything about it.

MR WILLS: I'm talking generally.

CHAIRPERSON: No, I think that we've got the evidence now.

MR WILLS: Thank you.

CHAIRPERSON: "We were told that the ANC are our enemies."

MR WILLS: As you please, thank you, Mr Chairperson.

Now why did you get involved in this incident?

MR M J NSINDANE: Thabani Mgobhozi was somebody we did not see eye-to-eye with regards to political affiliation.

MR WILLS: Yes?

MR M J NSINDANE: We then regarded him as an enemy because he was a prominent member of the ANC who had been involved in gangsterism.

MR WILLS: And what about Thulani Mhia?

MR M J NSINDANE: I placed in the same group as Thabani because they belonged to one group.

MR WILLS: And this obviously is the ANC group?

MR M J NSINDANE: Yes.

MR WILLS: And what about Mlungesi Hadebe and Richard Mkhize and Michael Majola? Those are the other persons who were in the house on the day of the incident.

MR M J NSINDANE: I regarded them as ANC people.

MR WILLS: Now why, what made you regard them as ANC people?

MR M J NSINDANE: The reason for that was that the area in which they resided was an ANC stronghold.

MR WILLS: So is it your evidence that the area in which you resided generally was divided up and certain people, if they belonged to the IFP, would live in one area and other people who belonged to the ANC would live in another area?

MR M J NSINDANE: That is correct.

MR WILLS: And obviously the area where you resided was an IFP area?

MR M J NSINDANE: That's correct.

MR WILLS: You've said that you shot Mr Mgobhozi, have you got anything to say about that to his parents? - his mother is here today.

MR M J NSINDANE: Yes, there is something that I would like to say.

MR WILLS: Well continue.

MR M J NSINDANE: What I can say is to asks their forgiveness, but I would also like to explain to them exactly what happened because we worked as a group but we did not divulge those names in Court.

MR WILLS: Why not?

CHAIRPERSON: What does that mean? He says he asks for forgiveness and "we worked as a group".

MR WILLS: Sorry, what are you trying to say?

MR M J NSINDANE: What I'm trying to say is that when the plan was hatched to kill Thabani, there were others involved but I could not divulge their names in Court.

MR WILLS: So - thank you, Mr Chairperson, I have no further questions.

CHAIRPERSON: Did the - Mr Wills, to your knowledge did the accused give evidence at the trial?

MR WILLS: I'm not - I know that his defence was an alibi defence that was rejected by the Court, but unfortunately I haven't taken instructions whether or not he gave evidence. It would be probable that he did. Sorry, Mr Chairperson, I didn't take instructions on that, but possibly we can ask him.

CHAIRPERSON: At your trial, did you give evidence?

MR M J NSINDANE: Yes, I did, but I was not speaking freely because the leaders who had also been involved were present in Court.

CHAIRPERSON: I understand that in the trial your evidence was what is called an alibi, in other words that you were not there when the crime was committed.

MR M J NSINDANE: That is true.

CHAIRPERSON: ...(indistinct)

MR WILLS: No further questions, Mr Chairperson.

ADV DE JAGER: There was a question put, or the allegation

was made that the deceased left this area together with his family, his mother, a week or more before the accident or even longer before the incident and that he only returned to visit his sister, he was not staying in that area anymore, is that true?

MR M J NSINDANE: As far as I know, I do not know about that.

ADV DE JAGER: But you were involved in forcing people to leave the area, ANC people, isn't hat so?

MR M J NSINDANE: That is correct.

ADV DE JAGER: Do you know whether he fled to another area with his family?

MR M J NSINDANE: I gathered that information, I heard about it but I was not sure, I was not certain whether that was true or not.

ADV SIGODI: You mentioned that at the trial you were not speaking freely because there were other leaders who were involved, they were present at the trial. Now this involvement of these leaders, were they involved in the planning of the killing?

MR M J NSINDANE: Although they were not involved I was of the opinion that if I divulged all the names of the people involved, these people will take it back to the community and my family will be in danger.

ADV SIGODI: No, you're not answering my question. You said you were not speaking freely because some of the leaders who were involved were present, who are those leaders?

MR M J NSINDANE: I said I could not speak freely because our leaders were present in Court. At the trial I was supposed to divulge all the names of the people who had been involved in the planning, because we did not plan this alone. Those people are close to the leaders.

ADV SIGODI: Can you tell me who were the people involved in the planning of the killing?

MR M J NSINDANE: Yes, I can tell you.

ADV SIGODI: Who were they?

MR M J NSINDANE: Gigi Mgobhozi.

ADV SIGODI: Yes.

MR M J NSINDANE: Ntlanla Mtiyane.

ADV SIGODI: Yes.

MR M J NSINDANE: Fofo Gumede.

ADV SIGODI: Yes.

MR M J NSINDANE: Mbuzeni Nsindane.

ADV SIGODI: Yes.

MR M J NSINDANE: Zwandile Mkhonto Nsindane, that is myself and Mo Khumalo.

ADV SIGODI: Thank you, Chairperson.

CHAIRPERSON: Precisely what is it that you did in the commission of these offences? I want to know exactly what the limit of your participation was in the commission of these crimes. In the killing of the deceased, what did you do?

MR M J NSINDANE: I'm the one who shot him.

CHAIRPERSON: In which part of the body did you shoot him?

MR M J NSINDANE: At the back next to his bum.

CHAIRPERSON: How many shots did you fire?

MR M J NSINDANE: Because I was just shooting, if I'm not mistaken once or twice.

CHAIRPERSON: Is there anything else you did to the deceased?

MR M J NSINDANE: No, it's just that I shot him and actually shot the others like Thulani, Mhia and the other one that I do not remember the surname. But when I left outside I actually took part when we were actually finishing him off with my brother because he was still alive.

CHAIRPERSON: No, let's just go step by step. What else did you do to the deceased besides shooting him?

MR M J NSINDANE: I finished him off with, I stabbed him with a spear.

CHAIRPERSON: Where did you get the spear from?

MR M J NSINDANE: From my brother Mbuzeni.

CHAIRPERSON: And in respect of the others in the room, precisely what did you do?

MR M J NSINDANE: The other person that I shot is Thulani Mhia.

CHAIRPERSON: Which part of his body?

MR M J NSINDANE: In front, I can quite remember. I think it was in the stomach.

CHAIRPERSON: How many shots did you fire?

MR M J NSINDANE: Once.

CHAIRPERSON: What else did you do to him?

MR M J NSINDANE: Nothing else because he was running away to tell the others inside, actually informing them that we have arrived to attack them.

CHAIRPERSON: No, my question is, what else did you do to him, not about what he ran away to tell others. Did you do nothing else to him?

MR M J NSINDANE: No, I didn't do anything else.

CHAIRPERSON: Is there anybody else that you assaulted or hurt or shot?

MR M J NSINDANE: I did shoot another person, but I can't remember that person's surname.

CHAIRPERSON: Where did you shoot this other person?

MR M J NSINDANE: On the chest because he was running away.

CHAIRPERSON: What is the name of this person, have you subsequently learnt?

MR M J NSINDANE: I don't remember the name. I did think about it initially but now I don't remember it, but that person was a resident at Amahlonga.

CHAIRPERSON: Can you shed any light on that Mr Wills?

MR WILLS: No, unfortunately I can't, Mr Chairperson, this is new to me.

CHAIRPERSON: He wasn't charged for that offence?

MR WILLS: He may well have been, Mr Chairperson, because there were a number of charges laid and some of them being attempted murder. I just trying to look through now. There was an acquittal in respect of three of the attempted murder charges, sorry, two of the attempted murder charges, counts 3 and 4. I can't take it any further than that, Mr Chairperson.

ADV DE JAGER: I see on page 48 they refer to a Mhungesi Hadebe.

MS PATEL: If I may assist in respect of that complainant. There was no direct evidence, in fact the witnesses couldn't even remember what had happened to him immediately after the perpetrators had entered the house, so once they came in there was no sign of him, so he must have escaped prior to anybody else being injured.

ADV DE JAGER: But according to the summary of facts he was also shot in the stomach, paragraph 6, and he was struck on the head with an axe.

MS PATEL: If my memory serves me correctly, that was never borne out at the trial itself, no.

CHAIRPERSON: ...(indistinct)

MS PATEL: No, no.

CHAIRPERSON: ...(indistinct)

ADV DE JAGER: Wasn't this the person you're referring to, Hadebe, or can't you remember?

MR M J NSINDANE: The name it is Mlungesi, but I don't remember the surname.

CHAIRPERSON: ...(indistinct). Yes, thank you very much.

CHAIRPERSON: Are you calling any other witnesses?

MR WILLS: No other witnesses. May I just ask one question arising out of the questions that the bench asked?

CHAIRPERSON: Proceed.

MR WILLS: Thank you, Mr Chairperson.

MS PATEL: Honourable Chairperson, I haven't had an opportunity.

CHAIRPERSON: Sorry, sorry, please.

CROSS-EXAMINATION BY MS PATEL: I'm going to be very brief in any event.

Mr Nsindane, did your brother at any stage make a report to you that the deceased had insulted him?

MR M J NSINDANE: Yes, he did tell me that, I remember.

MS PATEL: Can you recall when he said this and exactly what he said to you?

MR M J NSINDANE: He actually explained that the deceased insulted him and said, he called him by the name of "klova".

MS PATEL: Was this before the murder took place? I mean, how long before the murder took place did he report this to you?

MR M J NSINDANE: It was some time before the killing.

MS PATEL: So in the planning stage, when you decided on the target, exactly who had made that decision out of the six of you that were together?

MR M J NSINDANE: The person who actually took that decision is Gigi Mgobhozi because that the person we were with and he was ... because he, the person was older than us.

MS PATEL: And did the question of the deceased having insulted your brother come up during those discussions?

MR M J NSINDANE: I can't quite clearly remember that, but what I remember very well is that when we were discussing that Thabani Mgobhozi should be killed, we had actually regarded him as an enemy because he was the leading person, a prominent person in the ANC, and that he should be killed.

MS PATEL: Was the decision to murder the deceased at that particular time, not prompted by the fact that he had insulted your brother?

MR M J NSINDANE: No, I don't think so. I don't think that's the reason, it was because of political reasons.

MS PATEL: I can't recall whether you've answered this already, but did you state that you didn't know that the - no, let me finish. Did you state that you didn't know that the deceased had in fact left the area during that period when he was killed, that he had been drive out?

MR M J NSINDANE: I did explain that he had actually, I did not know that he had left the area.

MS PATEL: Thank you, Honourable Chairperson.

CHAIRPERSON: I'm sorry about that, Ms Patel.

MS PATEL: Okay.

ADV SIGODI: Just a few questions. At the time of the planning of this murder, did you plan who was going to do what, who was going to play which role?

MR M J NSINDANE: No, we did not plan that.

ADV SIGODI: And where did you get your arms from?

MR M J NSINDANE: From Gigi Mgobhozi.

ADV SIGODI: Did he give you the gun?

MR M J NSINDANE: ...(no English interpretation)

ADV SIGODI: Do you know where he got it from?

MR M J NSINDANE: I have no idea where he got that gun.

ADV SIGODI: When did he give it to you?

MR M J NSINDANE: On the 18th of October.

ADV SIGODI: Did you agree on the day when you would kill the deceased?

MR M J NSINDANE: Yes, we did.

ADV SIGODI: And the time?

MR M J NSINDANE: I can't remember the time, it was at about 12.

ADV SIGODI: Do you know what position the deceased held in the ANC?

MR M J NSINDANE: No.

ADV SIGODI: How did you identify him as a prominent ANC person in that area?

MR M J NSINDANE: As I did not(sic) grow up at Amahlonga, I knew that he was an ANC person, and the others that I've already counted.

ADV SIGODI: No, what I'm trying to find out from you is, how far is your home from the area where the deceased was staying?

MR M J NSINDANE: It's a distance, it's a bit far.

ADV SIGODI: How far?

MR M J NSINDANE: I cannot do an estimation, it was far because they are in another area called with another name and we are in different areas.

ADV SIGODI: So how did you identify ANC leaders in the other area?

MR M J NSINDANE: The area that I'm talking about, it's in the same place.

ADV SIGODI: As where you were staying?

MR M J NSINDANE: Yes.

ADV SIGODI: What is it that the deceased had done that made him to be identified as a prominent ANC person?

MR M J NSINDANE: What made us to take him as a prominent person is that in the area he used to collect money from the community and he was leading, and actually was in line with the idea that the IFP should not exist in the area.

ADV SIGODI: So he used to go and collect money from the community?

MR M J NSINDANE: Yes, he used to force the community to actually pop up some money.

ADV SIGODI: Did he come to your area to force your community, the predominantly IFP community, to pop out some money?

MR M J NSINDANE: Yes, he used to come even in the IFP stronghold, but he wouldn't be alone, they would come in a group with the others.

ADV SIGODI: And would the people be forced to pay out those monies? Would the people pay actually pay out those monies which he forced them to pay?

MR M J NSINDANE: Yes, people used to pay.

ADV SIGODI: In other words he was some kind of a terrorist, he was terrorising communities? Is that what you're saying?

MR M J NSINDANE: Yes.

ADV SIGODI: Thank you, Chairperson.

CHAIRPERSON: Yes, thank you very much. Yes Mr Wills?

MR WILLS: The Honourable Chairperson, Advocate Sigodi asked the question that I wanted to ask in relation to where the gun came from. I've no further questions, thank you, Mr Chairperson.

CHAIRPERSON: Are you calling any other evidence?

MR WILLS: No further evidence, thank you, Mr Chairperson.

CHAIRPERSON: Ms Patel?

MS PATEL: I do not intend calling any witnesses, thank you, Honourable Chairperson.

MR WILLS: Mr Chairperson, if I could just have a minute, we don't have to adjourn, just to liaise with my learned friend. If you could excuse me just to ask her something very briefly.

CHAIRPERSON: Yes, certainly.

MR WILLS: ...(indistinct). The only other evidence that I'd like to submit by consent is a statement that was given to the police by the applicant's mother and has been handed through to my learned friend, and that is going into by consent, thank you.

That is the applicant's case, Mr Chairperson.

ADV DE JAGER: When was this statement?

CHAIRPERSON: The statement will go in as Exhibit A.

MR WILLS: Thank you, Mr Chairperson. Mr Committee Member, the statement is dated. I tried to get the date earlier. The original isn't available at this point in time, but if you could bear with me I could establish that from the deponent. Can I do that?

CHAIRPERSON: Yes, proceed.

MR WILLS: Thank you. She recalls 1997, Mr Committee Member.

CHAIRPERSON: What is the age of the second applicant, when was he born?

MR M J NSINDANE: I was born in 1971.

ADV DE JAGER: This statement seems to have been given to the investigators of the Truth Commission.

MS PATEL: If I may just respond to the circumstances under which this came to our attention. At some stage the mother of the applicants had filed a complaint regarding the ill-treatment of the applicants in prison and it was a result of that that this information had then came to our attention.

CHAIRPERSON: Yes Mr Wills?

MR WILLS: Sorry, just for the purposes of the record, Mr Chairperson, i don't know if my learned friend is going to be presenting any evidence.

CHAIRPERSON: She said she's not calling any witnesses.

MR WILLS IN ARGUMENT: Thank you, Mr Chairperson.

Mr Chairperson, I submit that the applicants have made out a case for amnesty in respect of the incidents for which they apply.

Briefly Mr Chairperson, there are clearly one or two minor discrepancies in their evidence, but when one considers the time that incident occurred one would expect that in the normal course of events.

I submit that their evidence was given to the point. They answered all questions directly and they endeavoured to give information to the best of their knowledge, and I submit they did that.

I further submit that there can be nothing against, it can't be held against them that certain details weren't released in their applications. It is clear from their evidence that they didn't have legal advice, and clearly they also had certain pressures brought to bear on them when filling out these applications.

I submit that that problem they resolved in these hearings, and they gave all the information that they have at their disposal to the Committee. In other words I submit that they have satisfied the requirement of full disclosure.

As regards the issue of political motivation I submit that that too is satisfied, I think it's established. It's in fact - with respect, it's common cause that this occurred in a context of conflicts in the past between two political parties. I'd just like to refer to - that was Judge Page's, sorry, His Lordship, Judge Page's assessment when he gave sentence. And to that extent I refer the Committee to page 74 where I quote, and I'm quoting from line 8:

As regard the issue of proportionality, Mr Chairperson, clearly I think account must be had of the fact that there was a low intensity civil war going on between various protagonists, including the State, the ANC and the IFP, and that the situation was extremely volatile and violent and unfortunately the death and destruction was symptomatic of that struggle, and it is in that context that this attack occurred. So I submit that the deeds, whilst atrocious, occurring in that context were not disproportionate to the political object that was sought, which was clearly to rid the area of the opposing political party in order for the IFP, in this instance, to gain the upperhand.

It's in that context that I submit that a case for amnesty has been made in respect of each of the applicants in regard to this incident, and I submit that it should be granted.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: The sum total of the point you're making is that as far as the political objective is concerned, was the desire on their part to rid the area of the ANC?

MR WILLS: I would say that that was the objective, but it's a deeper objective connect with that in the sense that it did also, the evidence was to the effect that they were essentially involved in an IFP military grouping and that ...(intervention)

CHAIRPERSON: Where's the evidence about military grouping?

MR WILLS: The evidence of the first applicant which was confirmed by the second applicant, was that they were involved in this group of IFP youth which were under the leadership of certain names persons and that, if my memory serves me correctly, Mr Chairperson, that one of the tasks of this group was to attack the enemy. And it is in that context that I make that submission.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's mike is not on.

MR WILLS: Yes, indeed that is the case, yes. I'm saying that that was the objective but that objective occurred within a very defined political context and was supported by members of the IFP and persons in leadership positions in the IFP, at least tacitly.

CHAIRPERSON: Yes, carry on.

MR WILLS: I have no further submissions, Mr Chairperson.

CHAIRPERSON: Ms Patel, do you have anything to say?

MS PATEL: Considering my position, Honourable Chairperson, I think very briefly ...(intervention)

CHAIRPERSON: I think it is clear that there is a great deal of conflict that was carrying on in that area between the two major political rival groups.

MS PATEL IN ARGUMENT: Be that as it may, Honourable Chairperson, and in fact the victim's family will concede that the deceased was a member of the ANC, I will however ask you to take into consideration that inasmuch as there was a broader political struggle that had raged in the area, that the probability does exist that what spurred this incident was in fact the insult that had been directed against the first applicant, which he had chosen to deny, said that it was made under duress, the report of which his brother had in fact confirmed.

I will also ask you to take into consideration that during the commission of this incident the deceased had in fact been driven out of the area by that stage.

I have nothing further to add, thank you, Honourable Chairperson.

ADV DE JAGER: But the fact was that he was in the area again for maybe at least three days it seems.

MS PATEL: It was a week in fact. And the purpose of him having returned to the area was to visit his sister. They had in fact feared for their lives when they had left, prior to this incident having occurred.

CHAIRPERSON: One gets the impression that as far as the applicants are concerned they did not know that this man had left the area.

MS PATEL: That is conceded, Honourable Chairperson.

MR WILLS: Just if I may add, Mr Chairperson, and in finality, the word that was used as an insult, the first applicant doesn't concede that, but the word "klova" is a derogatory term which is used to describe IFP members.

CHAIRPERSON: Does it have a particular meaning?

MR WILLS: Mr Chairperson, I'm not an expert on language, but from my experience in these matters and political trials in this area, from that general knowledge, it seems to me that it is a term that is used by ANC members pejoratively to insult and degrade IFP members.

CHAIRPERSON: Yes, thank you very much. The Committee will take time and will convey its decision at an appropriate time.

Ms Patel, will you be taking particulars about victims or the dependants?

MR PATEL: Yes, I will certainly attend to that.

CHAIRPERSON: ...(indistinct).

MS PATEL: Yes, certainly.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's mike is not on.

MS PATEL: That is correct, Honourable Chairperson. Unfortunately the attorney for the victims in the next matter is only available tomorrow.

CHAIRPERSON: What time will he be available tomorrow?

MS PATEL: I can make arrangements as and when you please, Honourable Chairperson.

CHAIRPERSON: Will you convey to him that we hope to start at 09H15 tomorrow morning?

MS PATEL: Certainly, thank you.

CHAIRPERSON: That would be convenient to you, would it?

MS PATEL: It would, Honourable Chair. We can even start a bit earlier, I don't have a problem.

CHAIRPERSON: Yes, alright.

MS PATEL: Because I believe that attorneys are from the area as well.

CHAIRPERSON: Yes. Very well, we'll now adjourn until 09H15 tomorrow morning.