APPLICATION NO: AM6192/97

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CHAIRPERSON: Today we are going to hear the application of Nyawose Ziphakamise aka Khumalo which is application AM6192/97. Ms Thabethe and Mr Mlungisi, I hope we are now ready to proceed. We should have commenced with this application at 9 o'clock. Again our proceedings have been delayed for almost an hour. I do not expect you to advance any reasons for the delay. I however which to register our dissatisfaction with the manner in which these proceedings are going. We hope and trust that we will always be time conscious because if we are not, we will not be in a position to conduct our proceedings in an equitable manner. I expect counsels and lawyers to conduct themselves in a proper manner and that includes observing the time that we have mutually set as a Committee in consultation with counsel and lawyers. I shall now give Mr Molohlanye an opportunity to commence with Mr Nyawose aka Khumalo's application.

MR MOLOHLANYE: Thank you Madame Chair. I'd like to apologise for the delay and I would like to call the applicant in this matter Ziphakamise Nyawose aka Khumalo.

CHAIRPERSON: Mr Khumalo, will you please come forward? Mr Khumalo, which is your correct surname? Is it Khumalo or Nyawose?

MR NYAWOSE: Nyawose.

CHAIRPERSON: Do you also use Khumalo as a surname?

MR NYAWOSE: Yes.

CHAIRPERSON: Which surname should we use? Khumalo?

MR NYAWOSE: Nyawose.

ZIPHAKAMISE NYAWOSE: (sworn states)

CHAIRPERSON: Before you proceed, Mr Molohlanye, I note that you have now handed up another affidavit further to the affidavit that was handed up to the Committee on Monday which paragraphs are different from the ones that was handed to us on Monday. Are you in a position to quickly point to us which paragraphs have been included or have been amended from the one that we had on Monday?

MR MOLOHLANYE: Thank you Chairperson. There has been several changes in the affidavit as such. We'll start at the first one, was in connection to paragraph 1 and the second one is paragraph 5 and paragraph 9, there was a change also there. Paragraph 10 was also a change. Paragraph 11 there was a change but I'm not in the position of that.

ADV DE JAGER: Paragraph 11 resembles the old paragraph 12.

MR MOLOHLANYE: Yes.

ADV DE JAGER: You've combined paragraphs 9 and 10?

MR MOLOHLANYE: That is correct.

Also changes in paragraph 12. According to the new affidavit it's paragraph 11 and paragraph 13 of the old affidavit which is now paragraph 12. That's how far the changes have been.

ADV DE JAGER: Am I correct in saying that the essential paragraph for this application is paragraphs 11 and 12?

MR MOLOHLANYE: That is correct, Honourable Member.

CHAIRPERSON: You will recall that you were to apply for an amendment? Could you please proceed to do so?

MR MOLOHLANYE: Thank you. Before I do so, Madame Chair, I've noticed that after paragraph 19, paragraph 20 to 21 of this is missing in your affidavit. Can I ask our logistical manager to make copies for you before we proceed?

MR PANDAY: Sorry Madame Chair, if I may just intervene here for a moment? Madame Chair, I've been given the amended affidavit as of now as well as the old affidavit as of now. Madame Chair, in the circumstances would it not be advisable that my learned friend get the entire documentation in order so that I can be put in a position to follow what is happening because given the missing pages as my learned friend has indicated to Madame Chair that paragraph 21 of the amended affidavit is now not in it's place, I don't have that as well.

CHAIRPERSON: So you will have it, I mean it is now going to be distributed to all the parties involved.

MR MOLOHLANYE: Madame Chair, I'd like to proceed with my application for an amendment. Madame Chair, I'd like to apply for an amendment in terms of the application by the applicant Mr Nyawose. Mr Nyawose originally applied for amnesty for a murder, for the killing of Mr Bhukunda Cele only and apparently Mr Khumalo was convicted of murder, attempted murder and escaping from prison. I therefore apply to this Committee that we include the attempted murder and escaping from prison because they form part of the same act.

CHAIRPERSON: On what bases would you include the act of escape in your application for an amendment of this application? We have no problem with regard to the act of attempted murder of Mr Ngcobo being included as an act which was omitted specifically as an act was omitted in his amnesty application because it arose out of the same incident to which he applied originally in his amnesty application?

MR MOLOHLANYE: I therefore withdraw the escaping from imprisonment, your Honour.

CHAIRPERSON: Your application for amnesty to include the act of attempted murder of Mr Ngcobo is granted. The applicant will now lead evidence in respect ...(intervention)

MR MALAN: Can we just hear whether there is an objection?

CHAIRPERSON: You are representing the interests of the victims?

MR PANDAY: That is correct, Madame Chair.

CHAIRPERSON: Can we have your name on record?

MR PANDAY: It's Mr Panday, P-A-N-D-A-Y.

CHAIRPERSON: Mr Panday, an application has been made by Mr Molohlanye to include the act of attempted murder of Mr Ngcobo on whose interests we are now appearing today.

MR PANDAY: Your Worship, I represent the victim Goodman Ngcobo.

CHAIRPERSON: Yes, an application has been made to include the act of attempting to kill Mr Ngcobo.

MR PANDAY: No there is no objection ...(indistinct)

CHAIRPERSON: Your application is accordingly granted.

MR MOLOHLANYE: Thank you Honourable Committee.

CHAIRPERSON: You may proceed to lead evidence.

Mr Khumalo, we have been given an affidavit. This will be Exhibit A, page 21 has not yet reached my hands, I mean paragraph 20 to 21 has not yet reached our hands?

MR MOLOHLANYE: Thank you Chairperson. I think the logistical managers are making copies.

CHAIRPERSON: Has paragraph 20 and 21 been read to Mr Khumalo?

MR MOLOHLANYE: Yes they have been.

CHAIRPERSON: Mr Khumalo, is this affidavit the affidavit that you have deposed to? Mr Khumalo, did you depose to this affidavit?

MR NYAWOSE: Yes.

CHAIRPERSON: Do you understand the contents of this affidavit?

MR NYAWOSE: Yes.

CHAIRPERSON: Had you confirmed that they are true?

MR NYAWOSE: Yes.

CHAIRPERSON: We will then accept Mr Molohlanye this as Exhibit A. You don't need to lead him on any aspect which is contained in this affidavit.

MR MOLOHLANYE: That is so.

CHAIRPERSON: Mr Panday, is there anything that you - are there any questions that you wish to put to Mr Khumalo?

MR PANDAY: Madame Chair ...(intervention)

CHAIRPERSON: I am mindful of the fact that you don't have paragraph 20 and 21. I think the crux of the matter really lies in what is contained from paragraph 10 or from paragraph 1 to approximately paragraph 12 which really gives an indication of what actually happened prior to the incident and what happened during the incident in question. The other paragraphs relates to what happened after this incident which I think this Committee is least concerned with.

MR PANDAY: Madame Chair, I accept what Madame Chair has said. As I've mentioned, I don't have in my possession the original affidavit that was handed up to Madame Chair and the members. Now at this stage I'm not in a position to comment on both the affidavits that have been handed up or direct any questions.

CHAIRPERSON: There is only one affidavit that has been handed up and that's the affidavit that we have now accepted as Exhibit A. Don't you have a copy of this affidavit?

MR PANDAY: Madame Chair, I have parts of it, I'm just waiting for the completed affidavit.

CHAIRPERSON: If you don't I will give you my copy. Do you require time now to adjourn in order to have sight of this affidavit?

MR PANDAY: Yes Madame Chair.

ADV DE JAGER: Let's just get this straight. Do you agree that the murder and the attempted murder applied for were acts related to the political struggle at the time in the vicinity?

MR PANDAY: That point is accepted, Mr Chairman.

CHAIRPERSON: The only point of course that you raised with us in chambers is that of full disclosure and you would want to have sight of the affidavit to be able to be satisfied that the applicant has satisfied that requirement of full disclosure. We'll grant you a two minute adjournment to enable you to go through the affidavit and to be able to come back and take instructions to see whether the full disclosure has been complied with by Mr Khumalo. Will that be sufficient time for you to consult with Mr Ngcobo?

MR PANDAY: Yes Madame Chair, that will be sufficient, thank you.

MR MOLOHLANYE: As the Committee pleases.

CHAIRPERSON: We'll adjourn for two minutes.

CHAIRPERSON: Mr Panday, are you in a position to proceed Sir?

MR PANDAY: Yes Madame Chair.

CHAIRPERSON: Have you now taken instructions from Mr Ngcobo.

MR PANDAY: Yes Madame Chair, that's correct.

CHAIRPERSON: ...(inaudible)

CROSS-EXAMINATION BY MR PANDAY: Yes Madame Chair, just a few.

Mr Khumalo, in your affidavit handed up today, in paragraph 9 you say that you were approached by Tokozani who was the member of the ANC and informed you of the fighting that was taking place. What position did Tokozani hold in the ANC?

MR NYAWOSE: He was an ANC member.

CHAIRPERSON: I'm not getting any translation, are you?

I think there's a problem with my set. You may proceed Mr Panday.

MR PANDAY: Mr Khumalo, I know that he was an ANC member. I want to know what position he held in the ANC. Was he a marshall, was - he held some higher position in the ANC?

MR NYAWOSE: He used to be a marshall sometimes.

MR PANDAY: And is he from the area that you lived in?

MR NYAWOSE: Would you please repeat that?

MR PANDAY: Tokozani, was he from the area that you lived in?

MR NYAWOSE: They were still building a house there.

CHAIRPERSON: Was he from where you were staying?

MR NYAWOSE: No they were from Mabaleni, that's where they were staying before and then they just came to the area.

CHAIRPERSON: In other words he was in your area?

MR NYAWOSE: Yes.

MR PANDAY: Mr Khumalo, you thereafter mention in paragraph 10 that you went to Sitombi's place with two other gentlemen to attack this place. You say one of them was Duleng Cele, that's the one you can remember. Do you know who brought the second gentleman?

MR NYAWOSE: Yes I do know.

MR PANDAY: Who brought him?

MR NYAWOSE: They both came with Tokozani and I was the fourth one.

MR PANDAY: Okay.

CHAIRPERSON: May I interpose Mr Panday?

Were these people members of the ANC to your knowledge, the ones that Tokozani brought with them?

MR NYAWOSE: Yes they were.

CHAIRPERSON: Do you know the surname of Tokozani?

MR NYAWOSE: Yes I do.

CHAIRPERSON: What's his surname?

MR NYAWOSE: Tokozani Mbele.

CHAIRPERSON: Yes and is Sitombe, that Mr Panday has questioned you about, the same person as Mr Ngcobo? Is that Goodman Ngcobo?

MR NYAWOSE: Yes, his name is Goodman Sitombe Ngcobo.

CHAIRPERSON: Thank you. You may proceed Mr Panday.

MR PANDAY: Mr Khumalo, I'm going to take you back to the time you gave a statement or a confession to a magistrate. Do you remember that time?

MR NYAWOSE: Yes I do remember.

MR PANDAY: Right. Would you be able to remember the statement you gave to the magistrate?

MR NYAWOSE: Even though I cannot remember very well because when I made the statement I was not well, I was forced and also I was trying to run away from being found guilty or having committed the crime.

MR PANDAY: Mr Khumalo ...(intervention)

ADV DE JAGER: Oh, you lied in that statement, is that correct?

MR NYAWOSE: Yes that is correct, in court.

MR PANDAY: Mr Khumalo, do you remember in court they were arguing to accept your statement or not accept your statement, do you remember that?

CHAIRPERSON: Mr Panday, where is this going to get us in terms of you being able to explore whether in his amnesty application he has made a full disclosure? He has already admitted not to have been entirely true in that statement. Is there a point to which you are getting?

MR PANDAY: Yes Madame Chair.

CHAIRPERSON: You obviously now have taken instructions and if there is anything in terms of what is contained before us in this affidavit, that would indicate that he is not telling the truth. Wouldn't it actually expedite matters if you were to put those things that you do not entirely agree with?

MR PANDAY: As you please, Madame Chair.

Mr Khumalo, when you made the statement you mentioned that you had gone to Durban and fetched nine other men and come back to Sitombe's place, do you recall that?

MR NYAWOSE: Yes I do remember.

CHAIRPERSON: What page is that, won't you tell us?

MR PANDAY: That's page 21 of the bundle of documents that was given to me.

CHAIRPERSON: Yes we have that.

MR PANDAY: Seven lines down from the top, Madame Chair.

Now Mr Khumalo, why now in your paragraph in your affidavit you mention only two others accompanied you to Sitombe's place?

MR NYAWOSE: I said there were nine from Durban before. The truth is that we were four and out of these four I only knew one person. The other one I didn't know and then I knew Tokozani and myself.

MR PANDAY: So are you saying that you lied that there was nine of you?

CHAIRPERSON: That's what he's saying.

MR PANDAY: Now Mr Khumalo, which are we to believe, nine or four?

CHAIRPERSON: He is telling you he's now telling the truth, he lied in the statement he made before the magistrate.

MR NYAWOSE: Yes.

MR PANDAY: Mr Khumalo, in paragraph 11 of your affidavit you mention you had hand grenades and AK-47s. Where did you get the hand grenade from?

MR NYAWOSE: Tokozani brought it.

MR PANDAY: And the AK-47s?

MR NYAWOSE: Tokozani as well brought the AK-47.

CHAIRPERSON: Did Tokozani give an indication from where he had obtained these weapons?

MR NYAWOSE: No, he didn't give me any indication and also myself I didn't even ask him because I actually admired the fact that he had these weapons with him because I also needed weapons and what I had with me, I wasn't happy about it because it was a SP12.

CHAIRPERSON: Yes Mr Panday?

MR PANDAY: So Mr Khumalo, is it correct that the entire factions that took place was not as a result of your brother being killed by Sitombe and his friends, it is what Tokozani came and told you, is that correct?

MR NYAWOSE: It was everything together. Tokozani was being harassed by these people, also myself. I decided that I should accompany Tokozani and if I were to die I was ready to do so.

MR PANDAY: Thank you Madame Chair, nothing further.

CHAIRPERSON: Thank you Mr Panday.

CROSS-EXAMINATION BY MS THABETHE: Thank you Madame Chair, I have one question.

Mr Khumalo, why was Bhukunda Cele and Mr Ngcobo

killed? Why was Bhukunda Cele killed and Mr Ngcobo injured?

MR NYAWOSE: Ngcobo was our enemy, he used to attack the ANC organisation or members and my aim was not to kill Cele, my aim was to kill Ngcobo.

MS THABETHE: No further questions, Madame Chair.

CHAIRPERSON: When you say your aim was not to kill Cele but to kill Ngcobo, how was Mr Cele killed?

MR NYAWOSE: Cele was caught in a crossfire because he was at Ngcobo's place.

CHAIRPERSON: When you left that day to attack Mr Ngcobo's house did you know that Mr Ngcobo would not be the only occupant in the house?

MR NYAWOSE: No we didn't know that.

CHAIRPERSON: What were your intentions when you left, were your intentions not to attack Mr Ngcobo's house?

MR NYAWOSE: Yes, they were to attack Mr Ngcobo's house.

CHAIRPERSON: Yes and by attacking Mr Ngcobo's house that would include attacking anyone who was also inside the house is it not so?

MR NYAWOSE: We thought that he was alone inside the house.

CHAIRPERSON: In your affidavit you've stated that your house had also previously been attacked, do you recall that?

MR NYAWOSE: Yes I do.

CHAIRPERSON: And who had attacked your house?

MR NYAWOSE: Dodo.

CHAIRPERSON: Who is Dodo?

MR NYAWOSE: Dodo Mbambo and Mshlate, his brother and Tokozani.

CHAIRPERSON: Tokozani Cele?

MR NYAWOSE: Tokozani Blosi.

CHAIRPERSON: And to which political organisation did these people belong?

MR NYAWOSE: IFP.

CHAIRPERSON: And then your house was attacked, was it an indiscriminate attack on your house or did they shoot at your house and the people who were inside the house?

MR NYAWOSE: No, they didn't shoot at the people, they came straight and they said they were looking for me and they were told that I wasn't there and they said they must tell me when I come back that they will come back for me and they will catch me and they left. They met my sister on the street, they chased her away until she ran to my uncle's place.

CHAIRPERSON: Why was your sister actually chased away?

MR NYAWOSE: I don't have any idea because she's a female.

CHAIRPERSON: When you took a decision to attack Mr Ngcobo's house what objective did you seek to achieve by that attack?

MR NYAWOSE: Our objectives was to kill him so that the violence will deteriorate because at that time it had gone up.

CHAIRPERSON: Was it your intention to kill any person who would have been in the house and whom you thought was an IFP person?

MR NYAWOSE: No, it wasn't my aim, my aim was to just kill Mr Ngcobo.

CHAIRPERSON: Were you not fighting the IFP, were you not having continuous running battles as an ANC member with IFP people?

MR NYAWOSE: No, we didn't want to have continuous fights with the IFP. We didn't want to fight every single supporter of the IFP. The only problem with Mr Ngcobo was that he was the one who used to attack us. He shot at us and I think I know the reason why he shot us.

CHAIRPERSON: Why did he shoot at you?

MR NYAWOSE: ANC supporters or members killed his mother but I wasn't part of those attackers who attacked and killed his mother.

CHAIRPERSON: When was that? Was it also in 1993?

MR NYAWOSE: I think it was 1990, I'm not sure.

CHAIRPERSON: Would I therefore be correct in assuming that there were continuous fights between members of the ANC and the IFP in your area from 1990 to 1993?

MR NYAWOSE: Yes that is correct.

CHAIRPERSON: And that the members of one political organisation were killing members of the other political organisations?

MR NYAWOSE: Yes that is correct.

CHAIRPERSON: And the organisations concerned were ANC and IFP?

MR NYAWOSE: Yes that is correct.

CHAIRPERSON: And that you personally were aggrieved by the fact that your own brother had been killed in this conflict between the two political organisations?

MR NYAWOSE: Yes that is correct.

CHAIRPERSON: And that you also intended to kill members of the IFP because of this political conflict that you had?

MR NYAWOSE: Yes.

CHAIRPERSON: Thank you.

MR MALAN: Mr Nyawose, referring to the first paragraph of your affidavit, the killing of the mother of Sitombe Ngcobo, do you know who attacked and killed her? You said they were other members of the ANC, do you know any of them?

MR NYAWOSE: Yes there are some people that I know that they were among the group who killed the mother.

MR MALAN: Can you mention some of those names that you can remember?

MR NYAWOSE: Yes I will mention the ones that I remember and unfortunately some of them they passed away. Vusi Nglovo, Thabani Nglovo, they are brothers and the others I don't remember because there were quite a number of ANC supporters who came to visit to the area.

MR MALAN: Do you know or did you know a person Dan Cele?

MR NYAWOSE: Yes I know Dan Cele.

MR MALAN: Was he involved in that attack to your knowledge?

MR NYAWOSE: Yes, he was present.

MR MALAN: Was he one of the comrades, Dan Cele?

MR NYAWOSE: Yes he was an ANC.

MR MALAN: Was he a youth leader in the youth league?

MR NYAWOSE: Yes.

MR MALAN: Were you a member of the youth league?

MR NYAWOSE: Yes.

MR MALAN: Did you hold any position?

MR NYAWOSE: No I didn't have a specific position but they would sometimes put me in any position wherever there was a vacancy.

MR MALAN: And Tokozani who accompanied you in this attack, was he a leader?

MR NYAWOSE: Sometimes he would be a marshall since he was working and if he wasn't at work then he will be a marshall in the meeting.

MR MALAN: Thank you.

CHAIRPERSON: Mr Molohlanye, I take it that you wouldn't be bold enough to wish to re-examine?

MR MOLOHLANYE: Yes there's only one question I want to ask to ask.

CHAIRPERSON: So you want to be bold? Yes, I will allow you to re-examine.

RE-EXAMINATION BY MR MOLOHLANYE: Thank you.

Mr Nyawose, now that you divulge all your participation in all these acts, how do you feel now?

CHAIRPERSON: That is not re-examination.

MR MOLOHLANYE: My pardon.

CHAIRPERSON: You can re-examine on anything that came out of Mr Panday's questioning, Ms Thabethe and the Committee's questions.

MR MOLOHLANYE: No re-examination.

CHAIRPERSON: You can apply to reopen your evidence in chief to ask Mr Khumalo that question. You may apply to reopen.

MR MOLOHLANYE: Thank you your Worship, I therefore apply for opening of ...(intervention)

CHAIRPERSON: It's granted, you may put that question to him.

MR MOLOHLANYE: Thank you.

Mr Nyawose, now that you've divulged all your participation and your role in the attacks during the killing of Mr Cele and the attempted murder of Mr Ngcobo, how do you feel now?

MR NYAWOSE: I have great regrets and I realise the one thing that what I've done I've done it because I was heartbroken and it wasn't so necessary. I regret whatever I've done and I feel remorse.

MR MOLOHLANYE: Mr Nyawose, have you met any of the victims which are involved in this incident?

MR NYAWOSE: If you could please repeat that for me?

MR MOLOHLANYE: Have you met any of the victims involved in this incident?

MR NYAWOSE: Yes I have.

MR MOLOHLANYE: How is your relationship or what did you say to them or how do you relate ...(intervention)

CHAIRPERSON: Mr Molohlanye, you applied to reopen your evidence in chief and I granted you that indulgence. It was for only one question. You have exhausted that one question. I don't think this Committee can really be burdened about the relation that he has with the victims. It is common knowledge, it is known to all and sundry that this process is about reconciliation but pertinently we have to be satisfied with regard to whether the applicant in this case, Mr Khumalo, has made a full disclosure and whether the evidence complies with the requirements of Section 20, that is what we have to do. If he wishes to speak to the victims which we will always encourage as a Committee, because we are about reconciliation, he is free to do so. This can be facilitated by our logistics officer, Joe is here around, he can facilitate that, Melani is here, he can facilitate that, we always encourage that but that need not really form part of the record.

MR MOLOHLANYE: Thank you Chairperson, I'll withdraw my question.

NO FURTHER QUESTIONS BY MR MOLOHLANYE CHAIRPERSON: Mr Malan would like to ask Mr Khumalo one

question which might impinge on what you wanted to elicit from Mr Khumalo.

MR MALAN: Mr Nyawose, have you since met Goodman Ngcobo, Sitombe Ngcobo?

MR NYAWOSE: Yes.

MR MALAN: Is he in the same prison with you?

MR NYAWOSE: Yes.

MR MALAN: Have you reconciled?

MR NYAWOSE: Yes.

MR MALAN: Thank you.

CHAIRPERSON: I think that should conclude your re-examination, sorry your evidence-in-chief?

MR MOLOHLANYE: That is correct.

CHAIRPERSON: Are you now in a position to address us on any issue with regard to Mr Khumalo's application?

MR MOLOHLANYE IN ARGUMENT: Yes, I am in a position to address, thank you Madame Chair.

I hereby make a submission in regard to the application of Mr Nyawose in that Mr Nyawose have met all the requirements in terms of the Act, especially Section 20 sub-section 2(a) where Mr Nyawose has divulged or disclosed all the relevant facts in the act in which he was associated with a political objective and Mr Nyawose was a member of a political organisation which was publicly known and his acts where a struggle waged against another political organisation which was publicly known and therefore in terms of Section 20 sub-section 2(f) this person, who was Mr Nyawose, was acting in the course or scope of his duties, within the duties or implied authority of the political organisation.

CHAIRPERSON: Wouldn't he fall pertinently under paragraph (a) rather than (f)? Wouldn't that be your argument that he falls squarely within the provisions of 20, sub-section 2?

MR MOLOHLANYE: That will be so Madame Chair and also further in my submission that in terms of sub-section 3 of Section 20, the criteria which is used in the granting of the amnesty, I believe that Mr Nyawose qualifies in terms from (a) to (f).

CHAIRPERSON: Thank you. Mr Panday?

MR PANDAY IN ARGUMENT: Thank you Madame Chair.

Madame Chair, insofar as the political objective of the applicant is concerned, I think that is now common cause before this Committee that that is not in dispute. Obviously the only issue that now comes to light as to whether there has been full disclosure.

Madame Chair, insofar as the issue of full disclosure is, we've had Mr Khumalo explain to us how the entire incident had taken place at the place of Sitombe Ngcobo's residence, how the killing had led or what led to the killings, Madame Chair.

Madame Chair, it's therefore my submission insofar as to whether what he has put before this Commission as to whether that is full disclosure, Madame Chair. That would have to be left in the hands of the Commission to come to a conclusion whether that satisfies the test of full disclosure.

CHAIRPERSON: But you yourself have not put anything in dispute, you've not disputed the evidence with regard to his explanation as to how the incident occurred, have you?

MR PANDAY: That is accepted, Madame.

CHAIRPERSON: You have not put any different version?

MR PANDAY: That is true Madame Chair insofar as the victims concerned was at this stage as to whether there was just full disclosure.

CHAIRPERSON: Thank you.

MR PANDAY: Madame Chair.

MS THABETHE: No argument Madame Chair, I have no argument.

CHAIRPERSON: Would you say that the applicant complies with the requirements of Section 20, sub-section 1?

MS THABETHE: Yes Madame Chair.

CHAIRPERSON: And would it be your submission that amnesty should therefore be granted to him?

MS THABETHE: Yes Madame Chair.

CHAIRPERSON: Thank you.

I wish to thank the legal representatives, both of the applicant and the objector as well as our evidence leader for their assistance in the speedy conclusion of this application. We will be in a position to pronounce our decision with regard to this application tomorrow morning.

MR PANDAY: As Madame Chair pleases.

MS THABETHE: As the Committee pleases.

MR MOLOHLANYE: As the Committee pleases.

CHAIRPERSON: Mr Panday, I note that you were only involved in this matter. You are excused.

MR PANDAY: Thank you Madame Chair.

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CHAIRPERSON: Ms Thabethe, what is the position now? Which application do we proceed to hear?

MS THABETHE: Madame Chair, we're going to proceed to hear the application of Themba Mshini Ngcobo and Phazimani Ncishane.

CHAIRPERSON: Is the legal representative of Mr Ncishane here?

MS THABETHE: Yes Madame Chair, she is.

Sorry Madame Chair, can I say something?

CHAIRPERSON: Yes.

MS THABETHE: With regard to the previous matter, it was indicated to me that the victim's next-of-kin for Mr Cele are here so I would like you to recommend them for R & R if you do grant or refuse amnesty.

CHAIRPERSON: As you are aware, Ms Thabethe, whenever we make a decision we are required in terms of the Act, the Promotion of National Unity Act 34 of 1995 as amended to give an opinion with regard to whether we think they should be victims in terms of Section 26 and if we are of that opinion, we are required in terms of the Act to make a recommendation that they be referred to the Committee on reparation and rehabilitation in terms of Section 26 for determination as victims and that is what we'll do when we do this decision.

MS THABETHE: Thank you Madame Chair.

CHAIRPERSON: I know that Ms Loonat is still comfortably seated downstairs. We would like you to come up. Will you be comfortable sitting next to Ms Thabethe or would you like to sit next to your colleague, Mr Molohlanye? Yes, will we make an arrangement for one extra seat to be brought next to Ms Thabethe? Unfortunately we only have two tables so maybe you should share Ms Thabethe's table rather than Mr Molohlanye because he will also be sitting with his client.

I know that we are not logistically ready for this matter, we need to have an extra set of microphones for Ms Loonat and her client. I will therefore adjourn these proceedings for two minutes just to allow the technicians to arrange. Will two minutes be okay, Peter? Peter, will two minutes be sufficient? Thank you.

CHAIRPERSON: ...(inaudible) to hear the application of Mr Themba Mshini Ngcobo, application number 7803/97 and Phazimani Joe Ncishane, application number 5638/97. Will the legal representatives appearing on behalf of the two applicants kindly state their names for the record?

MS LOONAT: Madame Chair, my name is Serina Loonat and I'm appearing on behalf of Mr Phazimani Joe Ncishane. Thank you.

MR MOLOHLANYE: Madame Chair, I am Konki Molohlanye and I'm appearing on behalf of Themba Mshini Ngcobo. Thank you.

CHAIRPERSON: Thank you. For the evidence leader, Ms Thabethe. Ms Loonat?

MS LOONAT: Madame Chair, I don't think mine is functioning can I just swop with somebody please? There's no sound at all, there's just a hissing sound. I beg your pardon, thank you.

CHAIRPERSON: Ms Loonat, are you in a position to commence?

MS LOONAT: Yes Madame Chair, thank you.

CHAIRPERSON: You may do so.

MS LOONAT: Madame Chair could I call my client to sit beside me please? Would that be possible?

CHAIRPERSON: That is appropriate. Mr Ncishane you can sit next to your attorney.

Mr Ngcobo, you can also be seated next to your attorney.

PHAZIMANI JOE NCISHANE: (sworn states)

EXAMINATION BY MS LOONAT: Madame Chair, may I commence?

CHAIRPERSON: You may proceed Ms Loonat.

MS LOONAT: My learned colleagues, this morning I am appearing on behalf of Mr Ncishane who is applying for amnesty for the murder of one Samson Mpumelelo Phewa and Amos Cele on the 20th July 1991. At this point I would also like to apply for amnesty for robbery which was committed at the same time as part of the Act. Thank you.

CHAIRPERSON: And this robbery arises out of the same incident?

MS LOONAT: Yes Madame Chair, it arose at the same time.

CHAIRPERSON: Your application is granted.

MS LOONAT: Thank you Madame Chair. Further, could I just at this point bring to the attention of the Committee Members that there are some inconsistencies in this and the reason for that is my client is totally illiterate and he had to rely on his prisoner friends to write for him so it's not from want of not telling the truth but it's just come across the wrong way. One particular one is on page 26, for example, of the bundle. Number 11(a) where he says:

That is incorrect, there was actually an instruction. We shall come to that in the course of the evidence. Thank you.

Mr Ncishane, please tell the Honourable Members of this Committee how old you are now?

MR NCISHANE: I'm 40 years.

MS LOONAT: Are you married?

MR NCISHANE: Yes I'm married.

MR MALAN: Sorry, if 40 years is correct then the I.D. number is wrong.

MS LOONAT: He is 48 Mr Malan.

Are you married?

MR NCISHANE: Yes I am.

MS LOONAT: Do you have any children?

MR NCISHANE: Yes.

MS LOONAT: Please tell us what happened to your wife and children?

MR NCISHANE: When I was arrested everything was destroyed. My wife informed me that she ...(intervention)

MS LOONAT: Sorry, I can't hear anything.

CHAIRPERSON: Peter, it would appear that Ms Loonat is experiencing some technical problems with her headphones.

MS LOONAT: Can the interpreter say something?

INTERPRETER: Which language, English?

MS LOONAT: English, yes.

INTERPRETER: Can you hear me?

CHAIRPERSON: Yes we can hear her quite well, the translators can be heard.

MS LOONAT: I apologise Madame Chair.

Mr Ncishane, please tell me what happened to your wife and children?

INTERPRETER: The speaker's mike is not on.

MR NCISHANE: My wife informed me that she had started living with another man since I've been arrested.

MS LOONAT: So in fact they have deserted you?

MR NCISHANE: Yes.

MS LOONAT: Do you have a fixed address Mr Ncishane?

MR NCISHANE: No I resided in an informal settlement.

MS LOONAT: Which party do you associate yourself with?

MR NCISHANE: The ANC.

MS LOONAT: Do you have proof of membership?

MR NCISHANE: I did have a membership card but my house was burnt down and so was the card.

MS LOONAT: What was your status in the hierarchy of the ANC party?

MR NCISHANE: I was a marshall.

MS LOONAT: What is a marshall, Mr Ncishane?

MR NCISHANE: A marshall would be responsible for checking the area and finding out what the situation looks like in the area. Thereafter we go back and report back to the other comrades.

MS LOONAT: How often did you meet with your ANC members in order to do this marshalling?

MR NCISHANE: We met many times.

MS LOONAT: Only a weekly basis, daily basis?

ADV DE JAGER: I don't think it's disputed that he is a member and I don't know whether it's even disputed that he acted as a member of the ANC in this ongoing battle so as far as I could see we've got this affidavit which you've presented, perhaps you should hand it in as an Exhibit now and then continue to extract facts of the incident?

MS LOONAT: Thank you Mr de Jager. Is everybody in receipt of the supplementary affidavit which I would refer to?

MR MALAN: It has been given to us, shall we refer to it as Exhibit A?

MS LOONAT: Thank you.

On the 20th July 1991 you were together with other ANC members. You participated in a vicious crime that resulted in the death of two people. Do you know these two people?

MR NCISHANE: I knew of them.

MS LOONAT: Who instructed you to commit this killing?

MR NCISHANE: It was our commander, Mr Gumede.

MS LOONAT: He is also the co-accused? Please tell the Committee Members who these people are, the two men that you killed, what do you know about them?

MR NCISHANE: It Mavundla and somebody whose name I've forgotten.

MS LOONAT: And did they belong to any political party or were they personal friends of yours or acquaintances?

MR NCISHANE: They were IFP members.

MS LOONAT: Please tell the Members of the Committee why you committed this heinous crime?

CHAIRPERSON: Hasn't he done that, isn't his evidence that he was instructed by his commander? Is there anything else that you want him to lead before us? Before you answer that Mr Ncishane?

MS LOONAT: No Madame Chair thank you.

When you committed these offences, were you in possession of a firearm?

I know I say this in my supplementary affidavit, should I not refer to it Madame Chair? Okay.

Please tell the Committee Members if you own a firearm?

MR NCISHANE: Yes I did have a firearm but I did not carry it on that particular day. I had a home made firearm.

MS LOONAT: A home made firearm is an unlicensed firearm, do you still - you're not in possession of it any more and you weren't - sorry, I'll put that question again.

On the day of the attack, did you take your firearm with you?

MR NCISHANE: No, I only carried a stick.

MS LOONAT: So how are you responsible for the death of the two men concerned?

MR NCISHANE: I assaulted one of them. I ran away with regards to the other one.

CHAIRPERSON: Which one? Did you assault Mavundla or the other person's whose identity is unknown to you?

MR NCISHANE: Mavundla?

CHAIRPERSON: Yes, how did you assault him?

MR NCISHANE: I assaulted him with my stick.

MS LOONAT: Why did you assault him with your stick? What was the purpose?

MR NCISHANE: They had shot at him and he would not fall down.

MS LOONAT: Who is they that had shot at him?

MR NCISHANE: My co-accused seated across me, Themba Ngcobo as well as My Boy Mavuso.

MS LOONAT: So he did not fall down so you hit with your knobkierie. Please carry on?

CHAIRPERSON: Sorry Ms Loonat.

How many times did they shoot him?

MR NCISHANE: I heard two shots and then I heard another shot, a third shot.

CHAIRPERSON: Who fired the first shots?

MR NCISHANE: It was My Boy but I did not see where he hit him.

MS LOONAT: What time of the day was this?

MR NCISHANE: It was about 8 in the morning.

ADV DE JAGER: And you believed that this man was protected by muti that's why you hit him with a knobkierie?

MR NCISHANE: Yes that is correct.

MS LOONAT: What did you do after that?

MR NCISHANE: Thereafter one of us said the soldiers were coming and then we fled the area, fled the spot.

MS LOONAT: At this point two men had been shot, is that correct?

MR NCISHANE: Yes, I do not know the other man's name.

MS LOONAT: Do you know if they were dead before you left the scene?

MR NCISHANE: I could not see.

MS LOONAT: You said that your instructions were to kill the two gentlemen. How could assaulting him with a knobkierie achieve that?

CHAIRPERSON: I didn't get your question, would you please repeat?

MS LOONAT: Madame Chair, I was asking my client that his instructions from his commander was to kill the two gentlemen concerned, both IFP members, however my client assaulted him with a knobkierie. I wanted to know how did he think he was going to achieve what he set out to do with just a ...(indistinct) in his hand.

MR NCISHANE: That was a weapon that I knew how to use and that is what I carried. I was not familiar with a firearm, that is why I decided to carry that stick on that day.

ADV DE JAGER: And that was a deadly weapon, it was a heavy weapon that could kill people, isn't that so?

MR NCISHANE: It was a knobkierie.

ADV DE JAGER: Yes and you wanted to kill him because you've been instructed to kill him?

MR NCISHANE: If we had not been told that the police were coming we would have killed him.

ADV DE JAGER: And you considered them to be your political enemy?

MR NCISHANE: Yes.

ADV DE JAGER: Thank you.

MS LOONAT: Could you not have gone to the police to sort out your problems?

MR NCISHANE: We could not go to the police because the police in that area collaborated with IFP.

MS LOONAT: What proof have you of that?

MR NCISHANE: I am telling the truth, that was the case, they were ZP, kwaZulu Police.

CHAIRPERSON: That is the perception that you held in your area as ANC members, is it not?

MR NCISHANE: Yes we used to see them.

CHAIRPERSON: Yes but that is what you believed as ANC members, you don't need to have proof to that effect, it was perceived that the police were collaborating with the IFP in certain quarters of kwaZulu Natal?

MR NCISHANE: Yes that is correct.

MR MALAN: Sorry Ms Loonat, just for my clarification, why should he have gone to the police? What's the purpose of the question?

MS LOONAT: It appears that they took the law into their own hands and I was trying to find out if there was perhaps another way that they could have eradicated these faction fightings and asking the police for assistance.

CHAIRPERSON: It wasn't faction fighting was it, Ms Loonat? These were political conflicts.

MS LOONAT: I beg your pardon, the political attacks.

CHAIRPERSON: Chain of attacks and counter-attacks by and between the two political organisations or members of the two political organisations?

MS LOONAT: That is correct, Madame Chair, I beg your pardon.

MR MALAN: Was any evidence introduced that I missed that he had knowledge of any crimes committed by any of these two members, these two persons killed, the two victims, for which purpose he was suspected to go to the police?

CHAIRPERSON: In short, we don't think the questions you are leading are relevant because you must always bear in mind what is already before us. What is before us is that here is a person who is acting on instructions of a commander, to go and kill people that he has been told are his political opponents?

MS LOONAT: I beg your pardon.

Mr Ncishane, when you sat with Mr Ngcobo, having these meetings as an ANC supporter, what was actually discussed, what was actually happening to you at the time, what were your sufferings or what were you suffering at the time?

CHAIRPERSON: Do you mean him personally as an individual because you are going to elicit all kinds of evidence from him that might not be pertinent to his amnesty application. You're not trying to ascertain the kind of evidence that will shed more light about whether there were political conflicts in the area and in that case ask a pointed question so that you can elicit a pointed response.

MS LOONAT: Thank you Madame Chair.

Mr Ncishane, you did say that you're experiencing problems with the IFP members at the time. I just need to go back a little bit, Madame Chair.

ADV DE JAGER: I think we've agreed that it was common cause at that stage that there was an ongoing war between the two political factions, I think that's - unless there's something specific that you want to add to it, because I don't think it's disputed I think it's common cause that at that stage there was an ongoing war. He was a martial, he was instructed to go and kill these people in an operation of at that stage in this war. So I'm satisfied as far as that is concerned that he acted against a political opponent in a situation of war in the conflicts of the past.

MS LOONAT: Okay, may I just lead my client into why he left his employment which leads up to when he got his instructions to the killing.

CHAIRPERSON: But is that relevant?

ADV DE JAGER: Ja is it relevant to whether he was employed or not? Sorry.

CHAIRPERSON: Is that really relevant, efficiently relevant to what seems to be the crux and the ambit of your application which is that he's applying for amnesty on the basis that he was acting on instructions by Mr Ngcobo who is a commander, unless of course it is going to be disputed that Mr Ngcobo was a commander of Mr Ncishane? He's acting on instructions?

MS LOONAT: Yes Madame Chair, he was acting on instructions but he had reached - there was, as you'll accept a lot of raids, ANC/IFP but my client at this point, the first time that he ever did any criminal act in his life gave up his employment in order now to stay at home and look after his area, taking commands as a martial or whatever his status was in order to protect him and that is when the instruction came about for the common purpose.

CHAIRPERSON: Well you seem to be quite persistent in your wanting to lead that kind of evidence. We want to simply indicate to you that as far as we are concerned, unless there is a different version, we accept the fact that Mr Ngcobo - I mean Mr Ncishane, was acting under instructions of his commander Mr Themba Ngcobo and that seems to be sufficient for us to be able to apply the requirements of the Act whether he should be granted amnesty or not. Obviously there is another element of full disclosure, if you so wish however to persist in presenting that kind of evidence you are the person who is leading his evidence in chief, you may proceed to do so. Just don't waste too ...(intervention)

MS LOONAT: Thank you Madame Chair, I accept that you'll understand that there was a common purpose and that he has made full disclosure as far as he is concerned. He can only add ...(intervention)

MS LOONAT: You may proceed and lead the kind of evidence that you want to present to us with regard to why he lost his employment and there's probably something that you want to present to us that we are unaware of but if you do so, please just be quick because we don't think it is the kind of evidence that will assist us greatly in coming to a determination as to whether he qualifies for amnesty or not because your evidence, the ambit of the evidence is that he was acting under instructions.

MS LOONAT: Madame Chair, I'll go on, I won't proceed on that one, I just wish to ask ...(intervention)

MR MALAN: Will you please press the red button?

MS LOONAT: Sorry. Mr Ncishane, how do you feel about the crimes which you committed, how do you feel about it today?

MR NCISHANE: I'm feeling very bad now for what I did to these people.

MS LOONAT: What would you like to say to the victims' families if they are present?

MR NCISHANE: I beg for their forgiveness for what I did. I beg them to forgive me. It is something I will never do again.

MS LOONAT: So you would like to reconcile with the IFP members, of all parties?

MR NCISHANE: Yes.

MS LOONAT: Madame Chair, I have nothing further.

CHAIRPERSON: There is one aspect that you have omitted to deal with, Ms Loonat, and that's the act of robbery. No evidence has been led in respect of it.

MS LOONAT: Mr Ncishane, when you committed - when you went out to kill the two IFP members, why did you rob them and what did you rob them of?

MR NCISHANE: They were robbed of a wallet which had R30. We took the money because we wanted to buy ammunition. It was a wallet and a watch and the wallet contained R30.

MS LOONAT: Was this part of your instructions from your commander?

MR NCISHANE: I will say yes because we wanted to buy ammunition, we did not have enough ammunition.

MS LOONAT: Thank you Mr Ncishane.

ADV DE JAGER: Did you take the money?

MR NCISHANE: It's Mr Ngcobo who took the money.

ADV DE JAGER: You don't know what he did with it?

MR NCISHANE: I do not know what he did with it.

CHAIRPERSON: Now you are applying for robbery and you've only mentioned having robbed one of the deceased of a wallet which contained an amount of R30. Did you personally take anything from any of the deceased on that occasion?

MR NCISHANE: No.

CHAIRPERSON: Did you not take a wristwatch?

MR NCISHANE: I did not.

CHAIRPERSON: Do you recall that there was evidence in this regard by one of your co-accused, Mr Makatini, during your criminal trial? Do you recall that Mr Makatini said something to the effect that you had taken a wristwatch from one of the deceased? Do you recall that?

MR NCISHANE: Yes.

CHAIRPERSON: You dispute that?

MR NCISHANE: I do not dispute that because of the length of time that has passed while I was in prison, I've forgotten some of the things.

CHAIRPERSON: Yes, no I'm all that I'm saying is would you agree with what was said by Makatini, was Makatini correct or was Makatini not telling the truth when he said you took a wristwatch? Was Mr Makatini mistaken that you had taken a wristwatch?

MR NCISHANE: I do not remember.

CHAIRPERSON: Now the robber that you are - for which you seek amnesty is that of the wallet which contained an amount of approximately R30, is that you are applying for amnesty when you say you robbed?

MR NCISHANE: I seek amnesty for the political crime that I committed as well as for everything that happened around the crime.

MR MALAN: May I ask him, Ms Loonat, according to the documents before us and the copy of the judgement, there seems not to be a finding or conviction on the robbery charges.

MS LOONAT: I stand to be corrected but I got the distinct impression that he was charged and was sentenced accordingly for robbery?

MR MALAN: Well if you will look on page 79 of the bundle at the bottom:

But the robbery charges are listed on counts 2 and 4 and there's not reference to it in the judgement, the judgement on sentence? So I'm not sure that for some reason that's not within our knowledge?

MS LOONAT: There's no conviction, I beg your pardon, because I obviously misread it because I thought he was also convicted for robbery.

CHAIRPERSON: He wasn't but he's free to make it.

MS LOONAT: Ja he couldn't remember very well what happened because as I said in the supplement affidavit he has been effected and he wasn't quite sure but he wanted to come with full disclosure and because it was common purpose and the instruction was to steal cash towards, he felt that he should ...(intervention)

CHAIRPERSON: There was a statement by a certain Mr Makatini to that effect, whether that was true or not obviously he has not been included in the judgement because there was no conviction.

MR MALAN: May I Chair, with your permission, on page 78 of the judgement of the bundle, the judgement on sentence, the first paragraph there summarises what happens, talks about the three of them, the co-accused, moving as a small band of armed men through an accepted Inkatha area and the first person that had come to be shot at was the witness Zondo and there was fire opened. He wasn't charged but it seems to me like one act. Shouldn't that be disclosed? Did that happen? Maybe I should put that directly to Mr Ncishane.

Do you know a person called Zondo that gave evidence at the trial that said you shot at him?

MR NCISHANE: No I do not remember that person well.

MR MALAN: Well if you follow through, don't you remember him well or don't you remember him at all? Did you shoot at another person on the way to killing Cele and Mavundla?

MR NCISHANE: There is one person that we called and he was in a group of four and three of them ran away and that is the person that we shot.

MR MALAN: Then the summary here indicates to me and this is just my difficulty, that you were walking through an Inkatha area, the area where you killed these people was an Inkatha area, is that correct?

MR NCISHANE: No, the area was divided by a road and we were on the side of the ANC, we were not walking along an IFP area but we did cross the road and went into the IFP area.

MR MALAN: Yes, that's exactly what the summary says, you walked into the IFP area, then you opened fire on the witness there, Zondo. Then it continues to say that a certain Cele was on his way to the shop, that you confronted him and asked him about his political affiliations, that he said that he was the member of Inkatha and that you then shot him. Can you remember that?

MR NCISHANE: Yes.

MR MALAN: Did you stop Cele and ask him whether he was Inkatha or what his political affiliations were?

MR NCISHANE: Yes.

MR MALAN: And then you proceeded to go to another place where you took Mr Mavundla from a friends home, apparently not even his own home, you took him from another person's home, is that correct?

MR NCISHANE: Yes that is correct. That is when I ran away.

MR MALAN: After you had killed him?

MR NCISHANE: One of us, my boys, shot at him. Thereafter I ran away and whilst I was fleeing I heard another shot. I think Themba Ngcobo was the person who was shooting at him at the time, killing him.

MR MALAN: Why did you run away?

MR NCISHANE: I saw IFP members approaching from above and they were shooting and because I was not armed with a firearm, I just had a knobkierie, I ran away.

MR MALAN: When did your commander, Mr Themba Ngcobo, when did he instruct you to go and kill these people, where did it happen? Where did you receive your instructions?

MR NCISHANE: We were in an ANC area where we used to camp, it's Malukazi.

MR MALAN: Did he tell you you were to go and kill?

MR NCISHANE: He told us that whoever we meet we must shoot at them.

MR MALAN: So it was an instruction to go and look for IFP members to kill them. They weren't identified in advance, is that your evidence?

MR NCISHANE: Yes.

MR MALAN: Now, so these people were simply unfortunate that you got to them or did you have any knowledge that they were in a battle with you, these particular persons that you killed?

MR NCISHANE: It is not true that we were just going to shoot at the two of them but we intended to go to their camp but unfortunately for that person we met him as he was going to some house.

MR MALAN: Right, so just to get it clear then, the instruction was not to go and kill specific individuals, the instruction was to cross over into the IFP area, looking for IFP people to kill them and for you to accompany Ngcobo, is that correct?

MR NCISHANE: Yes I will say so.

MR MALAN: Now just the last question, just tell me in which way was Mr Ngcobo your commander, what was his authority, where did he get his authority from?

MR NCISHANE: He was elected by the ANC community, people like Gumede.

MR MALAN: And what was he elected to?

MR NCISHANE: He was told that he was going to be commander of the people, that he was going to be under him and he was also informed as to what they would do and how to deploy them.

ADV DE JAGER: Was he to organise the marshalls for the protection, was he the commander of the marshalls or what commander was he?

MR NCISHANE: I will say that he was the commander of those ANC people who would be coming along to look for our opponents.

MR MALAN: Were you part of those who elected him?

MR NCISHANE: No, but I was present.

MR MALAN: What did - you referred to the robbery for which you don't apply but I think it links onto the possible motive of the killing. From both the deceased you took wristwatches and wallets or money according to the evidence introduced at the trial. You say you can't dispute that but you have recollection only of the one? Did I understand you correctly?

MR NCISHANE: Yes.

MR MALAN: Now on page 67 of the judgement - of the bundle, right at the bottom, this is now after the wallet and the wristwatch had been taken from Mavundla and this is quoted from a statement made by your co-accused - what's his name?

Sorry? Myboy Mavusa, according to a statement made by him, said that you went and you bought with the money four quarts of Castle beer and you all drank that, can you recall that?

Did Themba buy you beer?

MR NCISHANE: I don't consume alcohol, I was not there went they bought that liquor.

MR MALAN: So they alone - do you have knowledge that they went to consume liquor or don't you have any knowledge of that?

MR NCISHANE: I don't know anything about that, I have no knowledge of what happened to the money.

MR MALAN: Okay, thank you very much.

CHAIRPERSON: Mr Molohlanye, do you have any questions to put to Mr Ncishane?

MR MOLOHLANYE: No, I don't have any questions.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No questions, Madame Chair.

CHAIRPERSON: Mr Ncishane, will you therefore say a mistake was made when your affidavit was drawn up and attested to by you? Particularly at paragraph 6 where you state that the instructions were to kill specific persons and that what in fact happened was that you were instructed to kill - to launch an indiscriminate attack on IFP persons?

MR NCISHANE: Yes I would agree with that.

CHAIRPERSON: And when was such an instruction given by Mr Ngcobo, was it given on that particular day on which these attacks were carried out?

MR NCISHANE: He gave the order on the very same day that we launched the attack.

CHAIRPERSON: Yes and was Mr Cele killed at a different place from when Mr Mavundla was killed?

MR NCISHANE: Yes that is correct.

CHAIRPERSON: Was Mr Mavundla killed in a particular house?

MR NCISHANE: I would say that is correct because one person was killed near his house.

CHAIRPERSON: Was he killed inside the house?

MR NCISHANE: Outside the house.

CHAIRPERSON: I'm talking about Mr Mavundla, you say he was killed outside the house?

MR NCISHANE: Yes they were killed outside.

CHAIRPERSON: Mr Ncishane, you may step down. Ms Loonat? Do you propose to call any witness in support of Mr Ncishane's application?

MS LOONAT: No Madame Chair I don't, thank you.

CHAIRPERSON: You close your case?

MS LOONAT: Thank you Madame Chair.

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CHAIRPERSON: Mr Molohlanye?

MR MOLOHLANYE: Thank you Madame Chair. I'm representing Themba Mshini Ngcobo who is applying for amnesty for the killing of Mpumelelo Phewa, Amos Cele and Simpson Mavundla as well as the attempted killing of Mfani Cele on the 20th July 1991. I'll start by ...(intervention)

CHAIRPERSON: He is not applying for robbery?

MR MOLOHLANYE: I was coming to that. I'd like to apply for amendment of the application to include robbery because it was part of the act.

ADV DE JAGER: Did he give any details of the robbery?

MR MOLOHLANYE: Yes he did.

CHAIRPERSON: Yes.

ADV DE JAGER: In his application?

MR MOLOHLANYE: No, in his application he did not.

CHAIRPERSON: Yes, do you agree with us that he was not convicted of the robbery?

MR MOLOHLANYE: Yes I do agree.

CHAIRPERSON: And he is doing so for the purposes of full disclosure.

CHAIRPERSON: Yes, you may proceed.

MR MOLOHLANYE: Thank you Madame Chair. I have an affidavit of Mr Themba Ngcobo which I would like the Committee to take into notice.

CHAIRPERSON: The affidavit will be accepted as Exhibit B. Mr Ngobo, we have Exhibit B in front of us. Do you know the contents of Exhibit B?

THEMBA MSHINI NGCOBO: (sworn states)

CHAIRPERSON: This will be accepted Mr Molohlanye as

Exhibit B. Do you wish to lead him further?

MR MOLOHLANYE: Yes.

CHAIRPERSON: Notwithstanding the fact that we are accepting this affidavit as evidence?

MR MOLOHLANYE: Only on particular issues that I wish to clarify.

CHAIRPERSON: You may do so.

EXAMINATION BY MR MOLOHLANYE: Thank you.

Mr Ngcobo, you said you were a member of ANC. What position did you hold?

MR NGCOBO: I was a commander.

MR MOLOHLANYE: May you tell us who elected you in this position?

MR NGCOBO: I was elected by the community of Malukazi.

MR MOLOHLANYE: Your role as a commander, what was your role as a commander?

CHAIRPERSON: Before he comes to that, when was he elected as a commander?

MR NGCOBO: In 1991, February.

CHAIRPERSON: You may proceed then, Mr Molohlanye.

MR MOLOHLANYE: Thank you Madame Chair.

My question was, what was your role as a commander?

MR NGCOBO: It was to organise my area, the people in my area so that we could defend ourselves against the IFP.

MR MOLOHLANYE: So, proceed further? We hear here in terms of the affidavit, paragraph 5, that you went to a particular place like the IFP area and you followed Mavundla into a house. Who was inside the house?

MR NGCOBO: I was Mavundla and his wife.

MR MOLOHLANYE: You, according to the affidavit, you shot Mr Mavundla. Do you know anything about the robbery?

MR NGCOBO: Yes.

MR MOLOHLANYE: Please inform the Committee what you know about the robbery?

MR NGCOBO: After Mavundla had died we robbed him of a wristwatch and a wallet.

MR MOLOHLANYE: Who took the wallet and the wristwatch?

MR NGCOBO: It was myself.

MR MOLOHLANYE: Proceed further. You left Mavundla there and you went to another area ...(intervention)

MR MALAN: Sorry, let's deal with it now, why did you take the wallet and watch and what did you do with it?

MR NGCOBO: We had a problem with ammunition. We were going to sell the watch and use the money to buy ammunition.

MR MALAN: And the wallet?

MR NGCOBO: I threw it away.

CHAIRPERSON: The money?

MR NGCOBO: I pocketed the money.

CHAIRPERSON: What did you use the money for? Your evidence is that you robbed because you wanted to - you were short of ammunition and wanted to use the proceeds thereof for purposes of buying ammunition. Did you use the money to buy ammunition?

MR NGCOBO: Yes.

CHAIRPERSON: Whilst we are dealing with Mr Mavundla before Mr Molohlanye proceeds to other aspect of your evidence, did you know Mr Mavundla?

MR NGCOBO: I did not know Mr Mavundla.

CHAIRPERSON: How did you know that Mr Mavundla was an IFP person?

MR NGCOBO: I saw him coming from the IFP camp.

CHAIRPERSON: By an IFP camp you mean a house that was known to be used by IFP people?

MR NGCOBO: It was a house that they used, the IFP members.

CHAIRPERSON: How did you know that that house was an IFP camp?

MR NGCOBO: As a commander I used to patrol the area to look for their camps and bases where they would launch attacks from.

CHAIRPERSON: So you knew the house to be used by IFP supporters or members?

MR NGCOBO: Yes.

CHAIRPERSON: Thank you, you may proceed Mr Molohlanye.

MR MALAN: Sorry, I'm not clear on this now. In your patrols, did you also patrol the IFP area?

MR NGCOBO: I would stand from our area and from where I stood it was possible to see that IFP area.

MR MALAN: But you didn't patrol it, you could see the IFP area, could you see the house from which you took Mr Mavundla?

MR NGCOBO: I could see the house from where I stood in our area. It was clear, it was not very far, you could see the house across.

MR MALAN: Now how did you know that that house was used by the IFP? I think as you said to launch attacks?

MR NGCOBO: I used to see them coming from that area when they came to attack us, from that house.

ADV DE JAGER: Wasn't he staying there, wasn't it his own house where he and his wife stayed?

MR NGCOBO: I did not know that that was his house or not.

ADV DE JAGER: There was a bed in that house, he was sitting on the bed when you entered?

MR NGCOBO: He was seated on the bed.

ADV DE JAGER: Who else did you ever see at that house except him and his wife?

MR NGCOBO: No, I did not see anyone else.

MR MALAN: But you haven't seen Mavundla either, before? You did not know him?

MR NGCOBO: No, even if I used to see him but I did not know him.

MR MALAN: You heard when I read out from the judgement to your fellow applicant, Mr Ncishane, that according to the summary of facts there or the summary of facts in the judgement, Mavundla was taken from another home, not from his own home but from a friend's home. Do you have any comment on that?

MR NGCOBO: He was removed from a house. I removed him from that house. I was not aware whether that was his house or not.

MR MALAN: Exactly. Okay, thank you.

CHAIRPERSON: You as a commander conducted certain surveillance one would imagine, is it not so?

MR NGCOBO: Yes.

CHAIRPERSON: That would be one of the primary functions of a commander in a war torn area like Malukazi, is it not so?

MR NGCOBO: Please repeat?

CHAIRPERSON: The conducting of surveillance would have been one of your primary functions in a war torn area like Malukazi was during that time?

MR NGCOBO: Yes it was important.

CHAIRPERSON: And you had conducted this surveillance and it had during your surveillance you then concluded that that particular house was used by the IFP because you saw quite a number of people coming from that particular house?

MR NGCOBO: Yes.

CHAIRPERSON: Was that an IFP area?

MR NGCOBO: Yes.

CHAIRPERSON: Yes Mr Molohlanye.

MR MOLOHLANYE: Thank you Madame Chair.

In terms of the affidavit we have, paragraph 5, the applicants state that they met, they saw Mavundla in the company of his wife. I'll start reading from:

ADV DE JAGER: We have read that Mr Molohlanye.

CHAIRPERSON: What is your point?

MR MOLOHLANYE: My point is that the house in which they went to was not a camp where the IFP was but was just a house which they ...(intervention)

ADV DE JAGER: Yes.

CHAIRPERSON: His evidence is that he saw Mr Mavundla coming from an IFP camp and we have been trying to establish what he meant by a camp and he said it was a house that he thought was an IFP camp because he, from his surveillance, had seen a number of people coming from that house.

MR MOLOHLANYE: My apologies, I thought maybe he said the house which Mavundla was found was the IFP camp.

CHAIRPERSON: Mr Ngcobo, there are quite a number of camps used by the IFP to your knowledge?

MR NGCOBO: I knew of two.

CHAIRPERSON: Now which ones were those?

MR NGCOBO: That was, one was the one where Mavundla came from, one was next to an Indian school.

CHAIRPERSON: Now in your affidavit you state that on arrival at this house where Mr Mavundla was you made certain enquiries and one of those enquiries was to make enquiries about the whereabouts of one Mpemba and Henry. Who were those people?

MR NGCOBO: Those were IFP leaders, important IFP leaders.

CHAIRPERSON: What position did they hold within the IFP in that area?

MR NGCOBO: Mpemba was the chairperson of the IFP.

CHAIRPERSON: Yes and Henry?

MR NGCOBO: Henry was an activist in IFP, I don't know what position he held.

CHAIRPERSON: So he was a prominent member of the IFP?

MR NGCOBO: Yes.

CHAIRPERSON: Yes. You may proceed to lead your further evidence Mr Molohlanye.

MR MOLOHLANYE: Thank you Honourable Chair.

To go back a little, you said you were a commander. On the day did you instruct any one to accompany you to go to IFP area?

MR NGCOBO: Yes I did instruct two people.

MR MOLOHLANYE: May you please give the names to the Committee?

MR NGCOBO: Phazimani Ncishane and Myboy Mavuso.

MR MOLOHLANYE: Will you please give us the reasons why out of the number of ...(intervention)

CHAIRPERSON: What was his instruction to Myboy and Ncishane?

MR NGCOBO: I said we should go to the IFP camps, that is where these IFP people launched their attacks from.

CHAIRPERSON: What specifically were they to do at the IFP camp?

MR NGCOBO: They could do nothing else except to attack and kill off everyone there because the IFP did not want us in that area.

CHAIRPERSON: Thank you, you may proceed Mr Molohlanye.

MR MOLOHLANYE: Thank you Chairperson.

After you - oh, before I go to that. Why out of a number of people, ANC supporters in an ANC area you only chose two people?

CHAIRPERSON: What are you saying?

MR MOLOHLANYE: I want to get the knowledge what made him to only choose two people to launch an attack on an area of the IFP.

CHAIRPERSON: Yes, you may proceed to respond Mr Ngcobo.

MR NGCOBO: The reason was that it would be problematic to take along a large number of people because we may face problems when we had to flee from the area.

MR MOLOHLANYE: You left the area after Mavundla, after you left Mavundla, was he dead when you left him?

MR NGCOBO: From what I could see he was already dead because thereafter a hearse approached.

MR MOLOHLANYE: You then left the - you ran away and you met at your ANC area. According to your affidavit, I won't lead you on that, that you went to another camp. How did you kill Mr Cele and why?

MR NGCOBO: Mr Cele was killed on the way to the other camp. The camp next to the Indian school because we had been in our attack on the other one. Mr Cele was in the company of somebody else called Mandla.

MR MALAN: Would this be Mandla Zondo.

MR NGCOBO: It is possible but I do not know his surname, I just heard that he was Mandla.

MR MALAN: Do you know anyone else by the name of Zondo who gave evidence at your trial?

MR NGCOBO: No, I do not remember.

MR MALAN: Did Mandla give evidence at your trial?

MR MALAN: Yes I did see him in court. It was only then that I realised that he was the person they were referring to as Mandla because I did not know him before.

MR MOLOHLANYE: After you - oh, how did you kill Mr ...(intervention)

MR MALAN: Sorry, just as to the location as to where this happened. Was this still on your way to the camp next to the Indian school, the killing of Cele, the attack on Cele and Mandla?

MR NGCOBO: Yes.

MR MALAN: It wasn't in the camp?

MR NGCOBO: We had not reached the camp by then.

MR MALAN: Right then just again to make doubly sure on the other one, Mr Mavundla, he was also not killed in the camp, he was killed outside the camp, in a house, or outside of the house, but not in the camp. Is that your evidence?

MR NGCOBO: Yes.

MR MALAN: So although your initial instruction was to move into the two camps and attack IFP, you killed both of the people outside of the camps, not in the IFP camps in the area?

MR NGCOBO: Yes.

MR MALAN: Thank you.

CHAIRPERSON: But just to be clear on that, you found Mr Mavundla inside the camp? He was on the bed, he was sitting on the bed?

MR NGCOBO: He was in another house not the camp.

CHAIRPERSON: He was not in the camp, he was not in the house which you thought was an IFP camp?

MR NGCOBO: No.

CHAIRPERSON: So why did you get into that particular house?

MR NGCOBO: The reason is that we had seen Mavundla coming from the camp and then I instructed the two to stand on the road whilst I go and enquire from Mavundla where Mpemba was because he was the one person that we were looking for.

MR MOLOHLANYE: May I proceed Chairperson?

CHAIRPERSON: I'm sorry about that, you may proceed.

MR MOLOHLANYE: Thank you.

In your affidavit you say Mr Cele tried to run away and you caught up with him and you shot at him. Who do you refer to, who are you referring to?

MR NGCOBO: Mr Cele was not successful in running away, the person who managed to escape was Mandla whom I did not know at the time.

MR MOLOHLANYE: My question is by you saying that you caught up with him and you shot at him, I want to know who shot him?

MR NGCOBO: Myboy first shot at him then I fired thereafter.

MR MALAN: Sorry, did you instruct Myboy to shoot at him or did he shoot of his own at that stage?

MR NGCOBO: Our intention was that we would attack anyone found in the IFP area because we as ANC members were not allowed, we could not walk freely in that area.

MR MALAN: Yes but there's no evidence that you shot Mr Cele, you saw him walking with Mandla and then Myboy shot him, you didn't have a discussion with him, you didn't know whether he was IFP, it wasn't in the camp, it was on the way to the camp near the Indian school? Isn't that so?

MR NGCOBO: We did not discuss it but our belief was that any person found on that IFP area was an IFP member because if they also found any of our members, anybody walking in their area they would kill them.

MR MALAN: Now back to my earlier question, did you say to Myboy and to Mr Ncishane, "whenever you see anyone in that area shoot them", or did you say "I'm taking control, I'll tell you who to shoot, I'm your commander."?

MR NGCOBO: I ordered them to kill anyone in the IFP area.

MR MALAN: So the only people that you met up with walking in that IFP area, was that Mr Mavundla and his wife and Cele and Mandla, didn't you see anyone else?

MR NGCOBO: We did not meet anyone else besides those.

MR MALAN: You didn't see any other person, you didn't see any other person in that area in broad daylight, is that your evidence?

MR NGCOBO: I do not remember.

MR MALAN: And why did you rob both of them if your intention was to go and tell. You didn't tell them in advance you would be robbing them or did you?

MR NGCOBO: With regards to Mavundla I did explain that the intention was to buy ammunition because we were short of ammunition to be able to defend ourselves when they launched their attacks. Secondly, with regards to Cele, he had been carrying a firearm, something that we needed and we were short of. We need a firearm to protect ourselves during attacks.

ADV DE JAGER: Did you in fact buy ammunition?

MR NGCOBO: Yes I did buy ammunition.

ADV DE JAGER: Where did you buy it?

MR NGCOBO: From some people in the hostel at GN17.

ADV DE JAGER: Who was that man you bought it from?

MR NGCOBO: I do not remember his name but he was a person from uMsinga.

ADV DE JAGER: What kind of ammunition did you buy?

MR NGCOBO: SP12 pellets.

ADV DE JAGER: That's shotgun pellets?

MR NGCOBO: Yes.

ADV DE JAGER: And what kind of weapon did you take from the deceased?

MR NGCOBO: It was a homemade firearm, a 9 mm.

ADV DE JAGER: And what happened to those weapons?

MR NGCOBO: I gave them to the other comrades who did not have firearms so that we could protect ourselves.

ADV DE JAGER: Myboy told the court that you bought liquor at the shebeen, Castles, with the money?

MR NGCOBO: That was a huge mistake.

ADV DE JAGER: Was it a mistake or a lie?

MR NGCOBO: It was a blue lie.

ADV DE JAGER: Did you go to the shebeen afterwards?

MR NGCOBO: I did not consume alcohol because of the situation which was bad.

MR MALAN: Did you never consume alcohol or did you not consume alcohol then, what is your evidence. Did you not consume alcohol on that day because of the situation or are you a teetotaller. What is your evidence?

MR NGCOBO: I did used to drink but because of the situation in the area I could not afford to drink because if I would be found drunk I could get myself injured.

MR MALAN: Where did you sell the wristwatches? Let me just get this clear, in the summary of facts and according to the evidence and statements made by Myboy and yourself and others, sort of consensus of the evidence is that you took money from both victims and wristwatches from both victims. In other words you took a wristwatch also off Mr Cele. What did you do with the wristwatches? Or let me put it in order, sorry, let me say firstly, did you - can you remember taking a watch from both Cele and Mavundla?

MR NGCOBO: I remember taking a watch, a wristwatch from Mavundla, I don't remember with regards to Cele.

MR MALAN: Is it possible that you did take the watch from Cele?

MR NGCOBO: No.

MR MALAN: Did you take money off Cele?

MR NGCOBO: No.

MR MALAN: Did you take money off Mavundla?

MR NGCOBO: Yes.

MR MALAN: So what did you do with the wristwatch?

MR NGCOBO: I sold the wristwatch.

MR MALAN: Did you sell it yourself? Who sold it?

MR NGCOBO: I sold it.

MR MALAN: Where did you sell it?

MR NGCOBO: At GN17, the hostel.

MR MALAN: What did you get for the watch?

MR NGCOBO: I received R20.

MR MALAN: You sold it at the hostel?

MR NGCOBO: Yes.

MR MALAN: Is that the ANC hostel?

MR NGCOBO: It's a mixed hostel.

MR MALAN: Did you sell it to ANC members or to IFP members or to ANC supporter or to an IFP supporter?

MR NGCOBO: I sold it to any particular person.

MR MALAN: You didn't mind whether it was a supporter of the IFP or the ANC?

MR NGCOBO: No I did not mind.

MR MALAN: Now you with the R30 in cash and let's assume that you did not buy any liquor and the R20 that you got for the watch you had R50, what ammunition did you buy and where did you buy it? You bought this SP12, where did you buy it?

MR NGCOBO: Yes.

MR MALAN: Where did you buy it and from whom?

MR NGCOBO: At GN17.

MR MALAN: At the hostel?

MR NGCOBO: Yes.

MR MALAN: At the same time you sold the watch?

MR NGCOBO: Yes.

MR MALAN: You exchanged the watch for the ammunition?

MR NGCOBO: I sold the watch, I received the cash thereafter went and bought ammunition.

MR MALAN: You went where? Weren't you at the hostel then? Did you not receive the cash for the watch at the hostel? Did you not buy the ammunition at the hostel?

MR NGCOBO: Yes.

MR MALAN: Did you buy it that same occasion or did you make a second visit to the hostel to buy the ammunition?

MR NGCOBO: I performed these transactions on the same day.

MR MALAN: At the same time?

MR NGCOBO: Yes.

MR MALAN: With the same person?

MR NGCOBO: No.

MR MALAN: Did you know who to buy the ammunition from, how did you get to the seller of the SP12?

MR NGCOBO: I knew who to buy the ammunition from.

MR MALAN: Who was that person that you got the ammunition from?

MR NGCOBO: A certain man by the surname of Zulu.

MR MALAN: A man by the surname of Zulu? Was he an IFP supporter or an ANC supporter?

MR NGCOBO: He was not affiliated to any political organisation.

MR MALAN: Thank you.

CHAIRPERSON: Ms Loonat, do you have any questions? I take it that you have?

MS LOONAT: No Madame Chair, I have no questions, thank you.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No questions Madame Chair.

CHAIRPERSON: I take it that you're not going to have a single question to re-examine Mr Ngcobo on, Mr Molohlanye?

MR MOLOHLANYE: No.

CHAIRPERSON: Are you in a position to give us your legal address?

MS LOONAT: Yes.

CHAIRPERSON: But before we proceed to do so, Ms Thabethe, is this matter opposed?

MS THABETHE: No Madame Chair.

CHAIRPERSON: Ms Loonat you may proceed to give us your address but would you prefer that you do that after lunch? I know that it's five to 1, maybe we should adjourn for lunch until half past 1 whereafter we would then expect you to address us?

MS LOONAT: Madame Chair, I would prefer it after lunch, thank you.

CHAIRPERSON: Mr Molohlanye, would that be in order with you?

MR MOLOHLANYE: That is correct.

CHAIRPERSON: We'll adjourn until 1.30.

MR MOLOHLANYE: As the Committee pleases.

CHAIRPERSON: Ms Loonat are you in a position to commence with your argument?

MS LOONAT: Sorry I missed that Madame Chair?

CHAIRPERSON: Are you in a position to commence with your legal argument?

MS LOONAT IN ARGUMENT: Yes, certainly Madame Chair, thank you.

Madame Chair, Honourable Members of the Committee, my learned colleagues, my client is an uneducated, simple man of mature years. He has committed no offences for which he could be charged throughout his life. He is now 40 years old. His fight for survival, warding off the persistent unprovoked attacks by the IFP on his homestead albeit an informal settlement, was aimed not at him personally but generally at ANC supporters in his area of which he has been and still is a staunch member since the '80's and this eventually took it's toll on him.

He was instructed to do something positive on the 20th July 1991 in furtherance of his political struggle. Together with two ANC members there was a common purpose and it was to eliminate the deceased who were known IFP members. The sole purpose was to achieve peace.

MR MALAN: Sorry, why do you say to eliminate the deceased who were known IFP members? That's totally contradictory to the evidence, is it not?

MS LOONAT: Sir I understand that they were aware that these were IFP members, according to my clients, because when they raided his area he had known them to be IFP supporters raiding and he recognised them as such.

MR MALAN: Ms Loonat, your client's evidence was that he never saw Mr Cele before, he had no knowledge of him, he'd seen Mavundla before. That was his specific evidence?

MS LOONAT: I beg your pardon, Mr Malan, yes Mavundla was the Inyanga that he knew and he knew him as the IFP person. I beg your pardon, then Mr Cele was pointed out to him a being an IFP supporter by Ngcobo, does that satisfy you Sir?

May I proceed?

CHAIRPERSON: You may proceed.

MS LOONAT: He who did not even fire at the two victims for want of possessing a firearm was charged for murder and sentenced to 18 years imprisonment. He has served 8 years approximately. In line with full disclosure he has told all and is prepared to implicate all who participated in these murders and other raids and helped track them down if that is what is expected of him.

He is extremely remorseful of what has transpired. Innocent lives are lost in political warfare. He apologises for the grief his participation has caused these families. He realises that to maim or murder does not resolve anything, it in fact exacerbates the already volatile situation. He has no previous convictions. He was not interested in even robbing the victims on that day except if it came about that any monies taken would be used for the furtherance of his ANC party aims.

CHAIRPERSON: Is there any evidence that he was aware that any kind of repossession or robbery would be part of the instruction that was issued to him by Mr Ngcobo?

MS LOONAT: Madame Chair, I understood that as part and parcel of it, if any monies were to be recovered from their victims, it would go into a fund towards party promotion and in this case it was to buy ammunition. Thank you.

MR MALAN: You may have understood that from him but I don't recall you having lead that evidence?

MS LOONAT: I beg to differ but I think it was led, Mr Malan, thank you.

CHAIRPERSON: It wasn't specifically led, it came out from questioning of Mr Ncishane but that's not the evidence that you pointedly led, particularly with regard to the nature, the professed nature of the instructions from Mr Ngcobo, but you may proceed.

MS LOONAT: I do concede that, thank you.

He was employed at the time of his arrest. He did lead evidence to the effect that he sacrificed his employment in order to bring about peace to his party and family. He honestly believed that by removing these troublemaking IFP supporters, beginning with the two deceased from whom he is presently seeking amnesty, he would surely achieve the peace he so desperately sought.

On page 79 of the bundle I refer you to the learned Judge Combrink's statement in which he states at line 9, I quote:

Sorry? Page 79. He had, I repeat, had two children and a wife. This political warfare resulted in their deserting him. Financially he is a man of straw so he cannot even begin to think how he could assist the bereaved families. He appreciates his actions have caused the victims' families immense suffering. He admits too that this is something he could not have foreseen. Nor was it part of his agenda. Such easy prey for political propaganda, coupled with the fact that his party persistently enjoyed losses in the hands of the IFP raiders. He is paying the price for his political intolerance but he cannot escape the nightmares he experiences for his involvement. He vows never to resort to criminal acts to achieve his political objectives, instead he wishes in the spirit of reconciliation to tell the truth, to reach out to all political opponents and to educate himself in party politics with the assistance of those more learned than himself. To try to understand the other man's views instead of resorting to violence to achieve political objectives, such as peace.

I humbly submit that my client has satisfied all the criteria as set out in the Act. In the circumstances I humbly submit further that the Committee grant him amnesty as his actions fall within the ambit of Section 20, sub-section 2(a), (d), (f) and sub-section 3 (b) and (e). Thank you Madame Chair.

CHAIRPERSON: Is he serving an effective sentence of ...(inaudible)

MS LOONAT: That is correct, Madame Chair.

CHAIRPERSON: Mr Molohlanye?

MR MOLOHLANYE: Thank you Chairperson.

CHAIRPERSON: Do you have anything to respond to these submissions made by Ms Loonat?

MR MOLOHLANYE: No your Worship, I don't have anything.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No response Madame Chair.

CHAIRPERSON: In that case we bounce back to you Mr Molohlanye, do you wish to address us with regard to any legal issues concerning the application of Mr Ngcobo?

MR MOLOHLANYE IN ARGUMENT: Yes Honourable Chair, thank you.

In my submission, Chairperson, I'll not like to go back to the evidence that was led in this hearing, but I'd like to stress that the requirements of the Act, the Promotion of National Unity and Reconciliation Act on granting of amnesty on an application, I'll submit that the applicant, Mr Ngcobo, satisfied all the requirements of Section 20 because he has made a full disclosure of his participation in the acts which were committed with a political objective and in the conflict of the past and going further to Section 20, sub-section 2(a) where this Mr Ngcobo was a member of a publicly known political party and he held a position of a commander, he disclosed that, he did not deny and he was involved in the struggle waged by such organisation of which he was a member against another publicly known organisation or liberation movement.

I therefore submit also in terms of sub-section 3 of the same section that the acts of the applicant were associated with a political objective and therefore made the criteria in terms of sub-section 3, that is from sub-section 3(a) to (f). Thank you.

CHAIRPERSON: Ms Loonat, do you wish to respond?

MS LOONAT: No Madame Chair, thank you.

CHAIRPERSON: Ms Thabethe?

MS THABETHE: No Madame Chair.

ADV DE JAGER: Could I only ask you, suppose I'm not satisfied that the money was taken for political purposes, how would it effect your main application for murder.

MR MOLOHLANYE: It would effect it in the sense that a robbery was committed, that is admitted and the money according to the applicant was used for buying ammunition for the furtherance of a political objective, that is to buy ammunition for the organisation of which he was a member.

ADV DE JAGER: No, I know that's his evidence, but suppose I won't believe him on that part of the evidence, what about the other evidence for the murder, would that still stand or would it effect that evidence?

MR MOLOHLANYE: It will effect because if you don't take it then there will be no full disclosure on the part of the applicant.

ADV DE JAGER: No full disclosure about another offence which he's not even applying for amnesty for, he's not applying for amnesty for the robbery?

MR MOLOHLANYE: But at the opening I made an application for amendment of the application to include robbery. I think he is now in terms of why it was granted and he's applying for robbery also.

MR MALAN: Mr Molohlanye, if I may put it to you the same question in a different way? The question is, if the panel should not be satisfied that the robbery was political but criminal, suppose that's for the moment for argument's sake, the panel decides that the robbery was a criminal act, it wasn't with a political motive, how would that effect the murder? Would that have an effect on the motive, the political motive, the political objective sought through the murders, the killings?

MR MOLOHLANYE: Thank you Honourable Member. I think in terms of the judgement, the applicant was not convicted on the issue of robbery and therefore his application or application for murder or for robbery if he's not taken, would not effect his evidence in terms of the murder of the main application that he made for murder.

MR MALAN: Let me put it bluntly. Why should the deduction not be made that the killing was in order to rob?

MR MOLOHLANYE: No, I would say because it was put here in terms of the evidence that was led that the applicant and his co-accused or the other applicants, they went into the IFP area with the sole purpose of attacking and killing members of the IFP and in them doing so they went further and took their possessions that they can buy ammunition ...(intervention)

MR MALAN: It's clear you're not hearing my question. My question is if the panel should believe that the taking of the wristwatches and cash was a criminal act was mere theft because that if we decide in our understanding that was not the objective, would that objective not flow over as a criminal, an indication of a criminal intention in the killings? That's the question of Mr de Jager.

CHAIRPERSON: May I try and clarify the issue further? Will you say that if we should find that there was no political motive for the robbery, that it was criminal, would that dilute your argument and your submission that the two killings were politically motivated and that the act of killing both Mr Cele and Mr Mavundla was aimed at achieving a political objective as evidenced, as evinced by your client? Would you say that you would still find, you would still argue and submit that they still have a political motive for the killing and that the evidence led before us should satisfy us that the killing was politically motivated and that whatever finding we have in respect of the robbery should not effect the motive that your client has testified to with regard to the killing?

MR MOLOHLANYE: Thank you Madame Chair, that is clear and I'm indebted to you.

I think or I'd like to say that the robbery will not effect the purpose and the objective of the attack or the killing of these deceased. Thank you.

CHAIRPERSON: Thank you very much to the two legal representatives, presenting both Mr Ncishane, Ms Loonat, Mr Ngcobo represented by Mr Molohlanye and Ms Thabethe. We'll reserve judgement in respect of this application and we'll pronounce our decision in due course.

MS THABETHE: As the Committee pleases.

MR MOLOHLANYE: As the Committee pleases.

MS LOONAT: As the Committee pleases, thank you.

CHAIRPERSON: Ms Loonat you are excused.

MS LOONAT: Thank you.

CHAIRPERSON: Ms Thabethe what is the next matter to be heard?

MS THABETHE: The next matter Madame Chair is the matter of Madlala and Mngomezulu.

ADV DE JAGER: In the previous application were the victims notified and did you hear anything from them?

MS THABETHE: In the previous incident?

ADV DE JAGER: Yes.

MS THABETHE: I just want to confirm my answer before I give it.

CHAIRPERSON: There was an indication that the publication was by means of radio broadcast. What may assist us in ascertaining would be the date because the date was not inserted, the date on which the radio broadcast was made with Radio Zulu. Will you get that information and give it to us in due course?

MS THABETHE: I'll do that Madame Chair.

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CHAIRPERSON: We'll proceed to hear the application of Happy Mngomezulu and Thulani Christopher Madlala. Will their legal representatives appearing in respect of the two applications kindly state their names for the record?

MS MOODLEY: My name is Ms ...(indistinct) Moodley and I appear for both the applicants.

CHAIRPERSON: For the evidence?

MS THABETHE: I'm the evidence leader, Ms Thabile Thabethe.

CHAIRPERSON: Yes Ms Moodley, are we in a position to commence with the two applications?

MS MOODLEY: Honourable Chairperson, I would like to address the Committee on an issue that I think is pertinent before we proceed to the application after my address?

CHAIRPERSON: Yes.

MS MOODLEY: Briefly, my concerns about the application being properly heard before this Committee, I believe is going to be compromised if reference is not had and evidence is not furnished by persons in a leadership position in relation to the political disputes that have arisen in this particular area of Wembesi. I'm mindful that the Committee is under strong time constraints and I do believe though there is equally an important concern that I have that the applicants be given the full opportunity to disclose fully before this Committee all facts some of which are not within their own knowledge at this particular point and that is why I make the request that without delaying unnecessarily the time of this Committee that we be afforded the opportunity to present witnesses who would then give a full picture in relation to the context and the commission of the offences that we now seek amnesty for.

ADV DE JAGER: What would the nature of that be?

MS MOODLEY: It would relate to the issue of the alliance and the issues that I would, as legal representative, deal with in my application by reference to Section 20 of the Promotion of National Unity and Reconciliation Act No. 35 of 1995. I believe that as I read the Section 20 together with the qualifying sections, I am going to face a difficulty in relation to the aspect, more particularly if I could read it and I think the Honourable Members are well informed of the particular section, Section 20, sub-section 2, sub (a). Any member or supporter ...(intervention)

CHAIRPERSON: You don't have to read it, just refer to the particular section, we are all familiar.

MS MOODLEY: I will refer to it, you want references?

CHAIRPERSON: Yes.

MS MOODLEY: But in order that we do not delay the process unnecessarily, I think the leading of evidence of the first applicant in the matter would not prejudice anyone's particular rights but I want the Commission to be mindful of the fact that I do require witnesses to be led and because they turn on the issues that I've mentioned just before.

MS MOODLEY: May you just explain to us how the leading of evidence from persons in the ANC leadership would actually assist your application with regard to the Sections that you've drawn this Committee to, that being Section 20, sub-section 2(a), how would that assist the applicants?

MS MOODLEY: On a very legalistic narrow interpretation of the particular section, I would concede Your Honourable Chairperson, that it does not necessarily imply those particular witnesses are going to be peremptory witnesses required by the Commission but I'm saying if one has reference to the affidavits that have been ably drafted by Mr Molohlanye and to which I've added a last paragraph, there is reference therein to individuals who would then be in a position to clarify matters because with all due respect I will say that the applicants are really the foot soldiers of what we are about here. There are elements that I think would come to the fore in relation to activity that was orchestrated and organised, not confined to Wembesi but throughout the midlands in kwaZulu Natal so I think there would be some reasonable good value for witnesses that would lend more light, shed more light on the circumstances and the situation as they arose in Wembesi. These individuals are not simply plucked from the leadership positions of any of the alliance organisations, it's simply people who have been intrinsically involved at grassroots level.

CHAIRPERSON: So if they are intrinsically involved at grassroots level as you allege, that would put them in the same position as the applicants?

MS MOODLEY: With all due respect, Honourable Chairperson, the qualification that a foot soldier does not - is not meant to demean of take away from the abilities of the applicant, is not fully apprised and aware of the vacuum in which he operates or she operates.

CHAIRPERSON: Yes?

MS MOODLEY: When you further the objectives of your organisation and my concern is that leadership and I can say this with my engagement as late as last night, it became apparent that there was some valuable information to share with this Committee from a person who was on the ground at the time and who continues to be deeply involved in the Wembesi area.

CHAIRPERSON: What would the import of that information?

MS MOODLEY: It would relate to why you have an anonymous situation of alliances brokered at national level which should permeate throughout the structure of an organisation but somewhere between that level and the ground, there seems to be blockages and impasses.

CHAIRPERSON: Yes. Without really interfering with you, I want to be on the same page as you, do I understand you to be addressing us with a request for an application for a postponement of this matter?

MS MOODLEY: Yes, Your Honourable Chairperson, only insofar as I might require it at some later stage during the course of the day because my concern is that my witness who I expected to be here at 12 o'clock sharply today does not appear to have presented himself.

CHAIRPERSON: Now are you in a position to proceed other than that? How many witness do you propose to call in support of these applicants?

MS MOODLEY: At this stage two because they would be the same witnesses that I would use in both the applications.

CHAIRPERSON: And who are they?

MS MOODLEY: I could furnish you with the first witness, it's Teaspoon Bunu Mkhize.

CHAIRPERSON: Yes?

MS MOODLEY: The second witness I actually have not confirmed.

CHAIRPERSON: Was Mr Mkhize made aware of the fact that we would be proceeding with this application at about 12 o'clock as we had earlier on indicated to you?

MS MOODLEY: No your Honourable Chairperson, he was actually informed the early part of this morning that in fact if he could be here a 9 o'clock it would be in the interests of the applicant.

CHAIRPERSON: So he's aware that he should have been here at 9 o'clock?

MS MOODLEY: No, I think - let me explain and then maybe you can hear where I'm coming from in relation to Mr Mkhize. I spoke with him at half past 5 yesterday afternoon for the first time and I indicated that I might require him before the Commission. He indicated that did not have an objection to being here but because he was councillor and otherwise engaged with council work, he was not in a position to present himself at 9 o'clock and then I said to him that we would like you to keep in touch because I think it is important for you to be here. I called him during the course of this morning and he said he would make attempts to be here by 12 o'clock, having taken the cue from consulting with you in chambers and there is now no Mr Mkhize and I'm concerned if you go on without his input, I mean my concern is we need to know that he is going to be here tomorrow at least.

CHAIRPERSON: Yes. Now you are only concerned about the importance of Mr Mkhize's evidence which would present a better picture as you allege with regard to the political context at Wembesi at the time when this incident occurred?

Do I comprehend you properly in that regard?

MS MOODLEY: In respect of the, as you have outlined so ably, you Honourable Chairperson, but in addition he is then going to then be able to give the amnesty the benefit of his history with Wembesi and the conditions as they pertained then.

CHAIRPERSON: Yes, bearing in mind obviously that Mr Mkhize is not an applicant?

MS MOODLEY: Absolutely.

CHAIRPERSON: Yes. We are here concerned with the applications made by the applicants. I must hastily advise you that our concern is to make sure that we hear applications of persons held in custody as quickly as possible. In fact we have been enjoined by the Act to do that right at the beginning of the life of the Amnesty Committee. We have not been able to do that as best as we would have liked to. This Committee is now coming to an end and our main concern is that we don't want to postpone applications of people who are held in custody unless there is a very good reason advanced why their applications should be postponed because they continue to be incarcerated in situations where if the applications are expedited they could have been released or at least the applications disposed of. Now we are also aware that we'd like to have Mr Mkhize coming to give evidence in support of the applicants' application. As far as we are concerned, having read the papers, we are not dealing with people who had just come into Wembesi, the applicants had stayed at Wembesi. The applicants were actually staunch members of their organisation. They were in support of Mr Mkhize's organisation. They are quite familiar in our view reading from their application of the political situation in Wembesi. You are, however, not precluded to call in as many witnesses as you wish to support their application at any given stage. We are satisfied that the requirements of Section 20, sub-section 2(a) do not require people other than the applicants to put us in a better picture, to satisfy ourselves whether they fall within that cluster of the provisions of the Act or not. We wish to make this quite clear to you at this early stage before you proceed further with your application. If you persist with your application for a postponement, we are not likely to grant you that indulgence because we feel that issues that have to be ventilated in order to satisfy this Committee whether to grant amnesty or not are peculiar and within the Province of the applicants concerned.

MS MOODLEY: Thank you, your Honourable Chairperson.

ADV DE JAGER: Would your witness be in a position to be here tomorrow?

MS MOODLEY: Yes, let me give you an undertaking because he said he was going to be here at 12 o'clock. I mean I can't guarantee that but I ...(intervention)

ADV DE JAGER: So you could now proceed to lead the two applicants?

MS MOODLEY: Yes but I just want to address you Honourable Chairperson on the issue of expediting matters. I think it would be short-sighted of me as responsible counsel not to have alerted the Committee to my difficulties because the application that I am charged with is not the - I'm not saying that the application is exceptional, but what I'm saying is there are issues there that are peculiar in relation to the question of the requirements as they are laid out in the Act and that is my only concern.

CHAIRPERSON: And just to respond to your concern and we really appreciate your concern, our response is that we don't think that situation would require anyone other than the applicant to be in a position to put you in a better position to argue, really, I mean they are they ones who committed the deed for which they seek amnesty, they themselves were motivated by what they believed to have happened at that time at Wembesi and nobody else I think can give a better context of the situation at Wembesi other than the applicants who committed the deeds for which they seek amnesty. People can come in and support their application but nobody can come and give a version on behalf of the applicant other than the applicant himself.

MS MOODLEY: Honourable Chairperson, I take the point.

CHAIRPERSON: Yes. In short therefore, are you now - can we say we are on the same page?

MS MOODLEY: Yes.

CHAIRPERSON: That we will proceed with the application?

MS MOODLEY: Yes.

CHAIRPERSON: But it is open to you to call in as many witnesses as you wish to, obviously, to support their applications. We don't want to prevent you from doing so.

MS MOODLEY: Thank you Honourable Chairperson.

CHAIRPERSON: Yes.

MR MALAN: Chair may I just add on this point, I think it must be clear in our understanding that the applications succeed or fail on the basis of the applicants' understanding and belief, not of the reality divorced from their understanding. They cannot qualify for amnesty on the basis of an external position of which they had no knowledge of, which motivated them to do certain things. They can only base their applications on their own motivation, the objectives as they saw and understand it or understood it at the time of the organisation to which they belonged or whose interests they had the furtherance of in mind.

MS MOODLEY: Commissioner Malan, with due respect, I take the point that you make as well but I then do want to place on record that obviously the applicant can only depose to what is within their knowledge but there is an addition, not in relation to the applicants but for purposes of the information for the Committee, that myself as counsel can bring to the Committee to supplement?

CHAIRPERSON: Yes.

MS MOODLEY: And that is what I'm about to, in respect of my witnesses ...(intervention)

CHAIRPERSON: Precisely, you really are at liberty and we give you room to call in as many witnesses as you wish to, to support your clients' application.

MS MOODLEY: Honourable Chairperson, may I start by firstly handing over copies of an affidavit prepared by ourselves in respect of the first applicant, Happy Mngomezulu?

ADV DE JAGER: Well could you call him to the...

CHAIRPERSON: Ms Moodley, what do you propose doing, do you want to read this application into the record or it would be sufficient to the applicant to confirm it's correctness and for us to accept it as an exhibit?

MS MOODLEY: Yes Honourable Chairperson, I think that would be sufficient.

CHAIRPERSON: Then you would lead him ...(intervention)

MS MOODLEY: Sorry, before I even start with the exhibit, as we will call it later on, may I then first deal with the question of the amendment to matters that appear in the application for amnesty, if I can turn to Form 1, page ...(intervention)

CHAIRPERSON: Page 4?

MS MOODLEY: Page 4 yes, item 9(a)(i).

CHAIRPERSON: Yes?

MS MOODLEY: We need to move for an application to amend the acts or omissions or offences committed by Mr Mngomezulu.

CHAIRPERSON: Yes?

MS MOODLEY: And if I could turn to page, as the Honourable Members to turn to page 60 of the judgement?

CHAIRPERSON: Yes?

MS MOODLEY: And more correctly I think page 43 of the indictment, sorry 41, if we could amend the particular section to include in respect of Mr Mngomezulu counts 2 and 4 which relate charges as reflected on the indictment.

CHAIRPERSON: Yes?

MS MOODLEY: Because we will moving an application for amnesty in respect of those as well.

CHAIRPERSON: That would be possession of 7.65 mm CZ pistol?

ADV DE JAGER: Were those the weapons used in the attack?

MS MOODLEY: Yes.

CHAIRPERSON: You also want to include the unlawful possession of a 9 mm pistol? Was he convicted of that?

MS MOODLEY: Yes he was convicted on count 4.

CHAIRPERSON: And what about count 3?

MS MOODLEY: No, count 3 and 2 relate to the other accused.

CHAIRPERSON: So with regard to Mngomezulu the application for an amendment is with regard to the inclusion of the unlawful possession ...(intervention)

MS MOODLEY: Of an arm.

CHAIRPERSON: Of a 7.65 mm CZ pistol as well as count 4 which is the unlawful possession of ammunition for the said weapon.

MR MALAN: That's Mngomezulu?

MS MOODLEY: That's Mngomezulu.

CHAIRPERSON: That's Mngomezulu yes and it will be so amended.

MS MOODLEY: Honourable Chairperson, there is one other issue that I need to attend to. There's the name of the applicant.

CHAIRPERSON: Yes?

MS MOODLEY: He also has, I've been instructed, another surname. It doesn't appear on the papers or in the bundle.

CHAIRPERSON: What other surname does he have?

MS MOODLEY: He wants to disclose to the Commission that he's also known as Happy Aubrey Mjali.

CHAIRPERSON: Mjali? He was however convicted and sentenced as Happy Aubrey Mngomezulu. Yes, we'll take note of that.

ADV DE JAGER: Has he got an I.D. number at present or not?

CHAIRPERSON: Whilst you are dealing with your application for an amendment, will you also address us with regard to which acts Mr Madlala will seek to apply for amnesty which are not included in his formal application?

MS MOODLEY: Yes 3 and 5.

CHAIRPERSON: 3 and 5, yes.

MS MOODLEY: Count 3 and 5, 42 yes.

CHAIRPERSON: The amendments have been accordingly granted.

MS MOODLEY: Thank you.

HAPPY AUBREY MNGOMEZULU: (sworn states)

EXAMINATION BY MS MOODLEY: Honourable Chairperson, shall we mark the affidavit as Exhibit A?

CHAIRPERSON: Has it been read to Mr Mngomezulu, the affidavit?

MS MOODLEY: Yes.

CHAIRPERSON: Yes, do you wish to read out the entire affidavit for his benefit?

MS MOODLEY: I think so.

CHAIRPERSON: You may do so.

MS MOODLEY: Thank you. Affidavit marked Exhibit A:

ADV DE JAGER: Mr Gumbi, was he a member of the ANC?

MR MNGOMEZULU: I do not know.

MS MOODLEY: The Honourable Member of the Panel, I think that has just been put for effect because it doesn't really relate to the application that we are charged with.

ADV DE JAGER: So he was a councillor there and there was now trouble between the councillor and ...(intervention)

MS MOODLEY: Well we are going back in time and we now ...(intervention)

ADV DE JAGER: Okay then proceed to this incident.

MS MOODLEY: No, but I think ...(intervention)

MR MALAN: Ms Moodley, can't we answer the questions? You put information before us, if we need information just answer it and let's continue.

MS MOODLEY: No, I understand that, what I'm simply saying ...(intervention)

MR MALAN: Continue please, let's not argue, let's just understand each other?

MS MOODLEY: I know that time is of the essence for the Commission but I do believe that if an affidavit has been drafted and if something in it is not relevant then it's proper for me to say so.

MR MALAN: It would have been proper then from the beginning not to have inserted it. Please continue.

MS MOODLEY: Will do so.

ADV DE JAGER: Could you kindly give us a time span here? When was Mr Teaspoon's son for instance killed, was that in 1989, 1990, so that we could get a ...(intervention)

MS MOODLEY: Yes, surely, if you could give me a minute?

CHAIRPERSON: May I request because this, we don't to have evidence coming from you, you are just reading the affidavit of Mr Mngomezulu. After completing reading the affidavit, we'll then put questions on issues of clarity because if you were to respond now, it will be your evidence and we don't want you to be a witness.

MS MOODLEY: Thank you. To continue:

The affidavit is attested.

CHAIRPERSON: Mr Mngomezulu, do you confirm the correctness of the facts stated?

MR MNGOMEZULU: Yes.

CHAIRPERSON: This affidavit will then be accepted by us as Exhibit A. Ms Moodley do you wish to lead evidence on any issue which has not been covered by this affidavit, do you wish to highlight anything?

MS MOODLEY: Yes Honourable Chairperson. If I could take the applicant to paragraph 8 of the affidavit?

CHAIRPERSON: Yes.

MS MOODLEY: For the benefit of all of us, Mr Mngomezulu, you say:

I want to afford you an opportunity to actually clarify or qualify anything that you want to in relation to that particular sentence that I have drawn your attention to.

CHAIRPERSON: Do you hear the translation? Can you please come to his assistance, apparently no translation is coming through his headphones? Ms Moodley, may you repeat your question for the benefit of your client?

MS MOODLEY: Thank you Honourable Chairperson.

Mr Mngomezulu, I take you back to paragraph 8 which relates to the incident of the shooting. And I would like you to comment or add or qualify what is contained there if you feel so inclined?

MR MNGOMEZULU: It was on a Friday morning, Gweni Nglovu who is Thulani Madlala uncle, was shot. Gweni was then taken to hospital. At about 11, we went to the hospital to visit him. MR MALAN: Alright, did you get it?

MS MOODLEY: I got the Zulu.

CHAIRPERSON: You were still explaining that it was a particular Friday morning when you were advised that Thulani Madlala's uncle had been shot?

MR MNGOMEZULU: Yes, before we reached ...(intervention)

CHAIRPERSON: What happened before you got to town?

MR MNGOMEZULU: Before we got to town we tried to enquire as to who had shot Thulani's uncle. Unfortunately we did not get that information but the ammunition that had been used, it had come from the area that Amabumvu stayed in. We then went to the hospital to check on Gweni's condition. On our arrival, we discovered that he had been shot but he was not in a very serious condition.

On our way back from the hospital we were travelling in a van, that is a van belonging to the family of Thulani. When we arrived at the taxi rank we found a lot of people waiting there. We then requested that the van should at least give transport to those people, to take them to their township. The van then proceeded to the township and I remained with Thulani. Moosa was the driver and he was in the company of Intunzi Indelani when they went to the township.

As we were still standing there at the rank Mr Christopher Phewa approached, he was in the company of Detrix and some of his other friends that I did not know. As he approached the rank his manner was very aggressive and he showed Detrix that he was one of the people who had killed his father, he was pointing a finger at me at that time. On seeing this I asked him if he had witnessed me doing this or if he was present when the incident took place but because we had a very poor relationship to such an extent that if you see or if we saw one another we would just attack or shoot one another if we had a chance. On realising that my life could be in danger I drew my gun, a 7.65, and shot at him. If I'm not mistaken, I think I fired four shots at him because my ...(indistinct) was damaged.

After I shot him he fell to the ground and I tried to flee. Thulani then approached him and I'm not sure how many shots he fired at him.

CHAIRPERSON: May I interpose or were you still proceeding to give your evidence? Yes, is he still proceeding?

MS MOODLEY: Yes.

MR MNGOMEZULU: As I was running I was being chased by White persons as well as some Indian persons. The police eventually caught up with me.

MR MALAN: What do you mean eventually? When did the police catch up with you?

MR MNGOMEZULU: I committed this incident it could be - it was a short distance after that incident, it couldn't have been more than two kilometres thereafter.

MR MALAN: Were you being pursued while fleeing?

MR MNGOMEZULU: Yes I was.

MR MALAN: Thank you, you may continue.

MR MNGOMEZULU: That is how I was arrested.

CHAIRPERSON: In your evidence in Exhibit A you state that you fired those shots because you were protecting yourself?

MR MNGOMEZULU: That was part of it.

CHAIRPERSON: What reason was there besides the statement that was made by Phewa that you were one of the people who had killed his father? What other reason prompted you to think that your life was in danger?

MR MNGOMEZULU: It was his manner, the attitude that he approached me as well as the situation between myself and his colleagues. There was war between us, there were Amabumvu and the ANC and they called us robbers and they had a separate leader who had been or who was an ex-ANC member. That was the situation that prompted me to think that if I do not defend myself I will lose my life because at that time I was Mr Mkhize's follower.

CHAIRPERSON: At that time did you see if Phewa or his companions were armed?

MR MNGOMEZULU: I cannot be too certain about them because they did not come closer to us, the only people who came close to me was Phewa and his friend Detrix.

CHAIRPERSON: Was Phewa and Detrix armed?

MR MNGOMEZULU: I would be lying, I'm not sure, I do not know.

CHAIRPERSON: Did you not see anything in their possession, maybe in their hands?

MR MNGOMEZULU: Because of how quick this whole thing happened, I did not notice anything.

CHAIRPERSON: What do you mean when you say you wanted him?

MR MNGOMEZULU: As I mentioned before, the relationship between us was very bad, to such an extent that if we meet there was something that was going to happen between us. It's either I or they that would die.

CHAIRPERSON: In your affidavit you explain that Mr Teaspoon Mkhize's son had been killed. When did this happen?

MR MNGOMEZULU: The son, Mr Mkhize's son died before this war erupted between the SACP and the ANC, he was killed by IFP members. I think it happened in '92, 1991.

CHAIRPERSON: It had happened before there was a split in the ANC which led to the formation of this group Amabumvu?

MR MNGOMEZULU: Yes that's true.

CHAIRPERSON: When did your father die?

MR MNGOMEZULU: He died in 1993 but he did not die as a result of the political conflict, he was just a sickly person.

I then returned from my hide out to attend his funeral. I then could not return because of the situation at the time because there was no one to look after the home. I was therefore forced not to return to where I had been.

CHAIRPERSON: What problems did you have, what was the source

of your conflicts between yourself and the Amabumvu?

MR MNGOMEZULU: What I can say is that the Amabumvu did not want to understand the situation. Mr Mkhize tried several times to broker some peace between us. He even called on Mr Gwala to explain to them that ANC and SACP were not enemies, they did not understand that. Mr Blade Msimande even came to explain the same thing and they did not want to understand that because they wanted to commit and achieve their own objectives in the name of the SACP. I knew that the SACP and ANC were allies but because of these boys, the acts that they committed as well as for the fact that I and Mr Mkhize resided in the same section and I was the follower of Mr Mkhize.

CHAIRPERSON: I think you are speaking too fast for the translators to be able to pick up everything that you are saying. They are struggling, they are trying to translate at a breath breaking speed. You are making their jobs very difficult. I am going to repeat my question. I will now address you in English because I think it's important for the Committee to understand the nature of the conflict that existed between your group and the Amabumvu group. Will you slowly repeat what you have just stated? I myself was unable to keep up with you because I'm listening to you in Zulu and trying to listen to the translators in English.

What was the nature of the conflict?

MR MNGOMEZULU: What I can say is we had a commander Mr Blade Msimande. Because of that position he was very close to Mr Mkhize. I think there was something that they could not see eye to eye with Blade because when Amabumvu was formed there was another person called, his name was Mkhize. He is the person who then became their leader, he removed these boys who had been guarding Mr Mkhize. He then managed to get a lot of these boys away from Mr Mkhize.

CHAIRPERSON: Are you in short saying that there was a problem between Mr Blade Msimande and Mr Teaspoon Mkhize as a result of which Mr Msimande formed his own camp?

MR MNGOMEZULU: Although I cannot be absolutely certain if that was the reason Amabumvu was formed but yes, before Amabumvu was formed there was a group or there were some amongst us who had intended, who wanted to form SACP and Mr Blade Msimande refused, he said there shouldn't be two organisations in one area. On seeing that disagreement, he used that opportunity to form Amabumvu. He was not just alone but with Mr Phewa and Zulu Mkhize whom I did not know.

CHAIRPERSON: When did this Amabumvu formation take place? Was this in 1993?

MR MNGOMEZULU: Although I cannot remember correctly but 1994 they were already in existence, I'm not sure when they were formed exactly.

CHAIRPERSON: To your knowledge, when did you begin to know that you had differences with Amabumvu as an ANC organisation, you as a person. When did you become aware of the conflict that existed between Amabumvu and members of your camp in the ANC?

MR MNGOMEZULU: On a certain day ...(intervention)

CHAIRPERSON: No, I want to know when, when in terms of the year and month.

MR MNGOMEZULU: I can say in 1994.

CHAIRPERSON: Now how soon before Mr Phewa was killed did you become aware of this difference or conflict? Mr Phewa was killed in March 1994?

MS MOODLEY: Honourable Chair, if I may intervene?

CHAIRPERSON: Is it 1993?

MS MOODLEY: No, Topay was the deceased.

CHAIRPERSON: Yes, oh, Topay was deceased?

MS MOODLEY: Not in respect of the amnesty application but in respect of circumstances.

CHAIRPERSON: Yes I mean Mpumelelo Christopher Phewa, this is the one that I'm referring to.

MS MOODLEY: Yes 25th March.

CHAIRPERSON: Yes.

ADV DE JAGER: He was killed on the 25th March 1993.

CHAIRPERSON: I'm only confining myself to Mr Phewa who was killed in March 1994 in respect of whose death you seek amnesty, do you understand Mr Mngomezulu? Yes, now when did you personally become aware of this conflict that existed between your camp and the Amabumvu taking into account that Mr Phewa was killed in March 1994? I just want to put some time frame to when you became aware of the conflict, that's all?

MR MNGOMEZULU: As I mentioned before, I am not certain as to when Amabumvu was founded. What I can say is that towards the end of 1993, beginning of 1994, I was already aware that we had differences that is organisation and Mr Msimande's organisation. Up until that time I was convicted or up until the time I committed this crime people lost their lives during that time. Mr Mkhize was also attacked at his home. My elder brother was also threatened with death. There are many instances that I can quote.

CHAIRPERSON: When was your home attacked?

MR MNGOMEZULU: I am not sure when Mr Mkhize's house was attacked but it was before the death of ...(intervention)

CHAIRPERSON: Mr Phewa died in March 1994 which is early 1994. Was your home attacked in the same year or the year before?

MR MNGOMEZULU: I did not say that it was my home that was attacked.

CHAIRPERSON: When did your father die?

MR MNGOMEZULU: In 1993.

ADV DE JAGER: Ja but when in 1993? October, December, Christmas, January, New Year's day or what

MR MNGOMEZULU: Because of the situation then I do not recall the month. I was not present when he died but it was early 1993, it could be April.

CHAIRPERSON: Is it not your evidence that you left Wembesi for some time and when you returned, which was after your father's death, you came back to a very different Wembesi which was now divided into different camps. That's the evidence that's before us?

MR MNGOMEZULU: Yes I did leave Wembesi and returned after my father's death.

CHAIRPERSON: Your evidence as contained in Exhibit A refers to the area having been divided into IFP and the ANC. Now were they different divisions, were they divisions of the IFP and the ANC as well as divisions of the ANC and the Amabumvu?

MR MNGOMEZULU: As you mentioned, I returned and there was by then the IFP and ANC existing in the area and later on there was Amabumvu as well as the ANC.

CHAIRPERSON: Now can you just explain to us briefly what the objectives to your understanding of the Amabumvu were, what political objectives did they pursue?

MR MNGOMEZULU: Although I cannot be certain of their intentions in the township I think that as I mentioned before some people did attempt to form a SACP branch and Mr Msimande refused. The problem that was then existing was that I thought that the person who wanted to be the leader was Mr Phewa because they were by the time not on good terms with Mr Mkhize because of Blade Msimande. I cannot really say what they wanted from him because I was not close to them, I was not in their camp. I knew that whenever or wherever we meet them, there was nothing else that we would do except kill one another.

CHAIRPERSON: Why were you fighting, maybe I should put it in that fashion. Why were you fighting with the SACP?

MR MNGOMEZULU: They started the attack on Mr Mkhize's home where there was a meeting held. They are the ones who also demarcated the area, they attacked Melusi at Mkhize's home, they decided that people who stayed in Five Row section are Amabumvu and those who resided at Mr Mkhize's side were ANC and they used to label as Amagola, which is robbers but I do not know, I cannot tell this Commission just what this problem was but I trusted Mr Mkhize and trusted that he was going to help the township develop and I could just not let him down and leave him in the hands of such people.

CHAIRPERSON: To your knowledge did they ever try and recruit members of your particular section to become SACP?

MR MNGOMEZULU: I would have no knowledge in that regard.

CHAIRPERSON: Ms Thabethe?

CROSS-EXAMINATION BY MS THABETHE: Maybe one question Madame Chair, I think the Committee has asked all the questions that I had prepared.

Mr Mngomezulu, would you say your political objectives as the ANC of Mr Mkhize were the same as the political objectives of the Amabumvu?

MR MNGOMEZULU: I do not believe so because Mr Mkhize had never once instructed us to kill people but they were capable of killing our people.

ADV DE JAGER: Did they in fact kill any of your people?

MR MNGOMEZULU: Yes they did.

ADV DE JAGER: Who killed?

MR MNGOMEZULU: Do you mean the killers or people who were killed? I did not get that question?

ADV DE JAGER: You knew the Amabumvu people. Did they kill any ANC people?

MR MNGOMEZULU: Yes there were that they killed.

ADV DE JAGER: Who was killed?

MR MNGOMEZULU: I remember Thulani Mbaso, Mr Gerry Zuma who was a school principal, there were various incidents, we were also attacked in a house but nobody was killed. Moosa was even killed as well. They killed a lot of people even when I was arrested, in prison, they continued with that campaign of killing people.

ADV DE JAGER: That was even after the election?

MR MNGOMEZULU: What I know is that Musanglovu was killed after I was incarcerated, I'm not sure whether it was before or after the elections.

ADV DE JAGER: Well you killed this man Phewa a month before the elections, a month and four days before the elections?

MR MNGOMEZULU: That is correct, just before the election.

ADV DE JAGER: At that time the ANC and the SACP were campaigning as one political organisation?

MR MNGOMEZULU: Yes they were allies but not in my area, that did not exist there and at that time I had already been arrested.

CHAIRPERSON: No, I think what my colleague is saying is that by March 1994 it's common cause that there was an alliance between the ANC and the SACP, there was such an alliance. Did you know that there was an alliance between the ANC and SACP and Cosatu in March 1994?

MR MNGOMEZULU: Yes I did know that.

CHAIRPERSON: And did you know what was the purpose of the alliance?

MR MNGOMEZULU: Although I cannot say for certain but I do know that they wanted to remove the opposite government.

CHAIRPERSON: So what is important for us to understand to be able to really have a clearer picture to the crux of your application is to understand the cause of the conflict between your organisation and the SACP, why you say you became enemies. That has not been borne out by the evidence that you've tendered so far. It is very, very critical and it is of fundamental importance for us to know why you became enemies. What is it that you were fighting for as an alliance? It's the SACP and the ANC organisation.

MR MNGOMEZULU: As I mentioned before, I knew and still know that the ANC and SACP were part of an alliance but in our township that was not so. The SACP in our township used that name just for personal gain, not for gain of the organisation. That was what we were fighting against. We did not want a split in our organisation.

CHAIRPERSON: Now you are saying they used the name SACP but were not in fact SACP members, is that what you are trying to suggest to us?

MR MNGOMEZULU: Although I cannot say it with absolute certainty but some of them were Mr Gwala, even asked amongst them if there was a member of the SACP who was 17 or who was unemployed and as I knew there shouldn't have been any member of the SACP who was unemployed or was that young but I'm not aware if they had membership cards.

CHAIRPERSON: But did you regard this Amabumvu as the SACP as you understood the SACP within the broader alliance between the ANC, SACP and COSATU?

MR MNGOMEZULU: As far as I could tell these Amabumvu at the township were not part or were not like the SACP that was fighting for the development and growth of our country.

CHAIRPERSON: Were you aware of any persons who were genuine SACP members within your area?

MR MNGOMEZULU: Unfortunately no, there was no one that I knew.

CHAIRPERSON: You still haven't really explain in a manner that I can personally understand why there was this fighting between what you perceived to be Amabumvu or people who called themselves Amabumvu and you as members of the ANC, I still have not been able to grasp why there was a division, what is it that you were fighting for. What I seem to be understanding and what I seem to be hearing from your evidence is that they started fighting, they started launching attacks on you as an organisation and then you retaliated. Other than that was there any reason that made you to be divided as different organisations?

MR MNGOMEZULU: I mentioned before that the one thing that really bothered us was that they attacked Mr Mkhize and they would attack other members of the ANC and we had thought that we were all members of one organisation. I am not in a position to say what they wanted from us but I do know that at that time they'd even give us names.

CHAIRPERSON: For what purpose did they attack Mr Mkhize and the members of your community? Why were such attacks launched by these Amabumvu against your members of Mr Mkhize?

MR MNGOMEZULU: On enquiring from people was that they will say with Mkhize, he's involved in embezzlement of funds in the township and he is also involved with our mothers. This is what people like Blade used to say because they wanted to desert him, they did not want to be the same organisation.

CHAIRPERSON: May I interpose? When you say they wanted to do that, do you want to say they wanted to depose Mr Mkhize, they wanted to remove him so that they can take over the political control of your area?

MR MNGOMEZULU: Even though I cannot say it with certainty but from their actions I thought that was part of their campaign as well as to undermine the ANC because the ANC by that time was a well established organisation because sometimes you would meet Blade or you would see Blade in an IFP rank where I would not be able to go, he would be able to go there. That was one of those things that led me to believe that they were trying to undermine and destabilise the ANC in the area.

ADV DE JAGER: Yes but you now mentioned that they wanted to get rid of Mr Mkhize because he embezzled money and ...(intervention)

MS MOODLEY: That's not what I recall. He said ...(intervention)

MR MALAN: Sorry, my note is "they say that Mkhize, there was an embezzlement of funds."

MS MOODLEY: They alleged these things.

ADV DE JAGER: Well leave me to complete my question and if you want to object you object then.

MS MOODLEY: Advocate de Jager, with all due respect I can hear you quite clearly, you seem to be screaming into my ears. I would gladly give you the patience that you require but please give and treat me with the respect that I deserve as well.

ADV DE JAGER: And you'd better treat me with same respect and ...(intervention)

MS MOODLEY: No listen ...(intervention)

ADV DE JAGER: And don't interrupt me while I'm asking questions.

MS MOODLEY: No, no, don't point your finger at me.

CHAIRPERSON: May I, may I please if you do care, please.

MS MOODLEY: I'm sorry, I'm sorry, I apologise, Honourable Chairperson, I don't appreciate a colleague, a learned friend pointing his finger at me all the time, it is distasteful and it is unnecessary.

ADV DE JAGER: Would you - you told us that they wanted to get rid of Mr Mkhize because he embezzled funds, is that correct?

MR MNGOMEZULU: I did not say they wanted to remove him, I said I was of the opinion that that was so. I cannot say if that is what they wanted because I was not part of them.

ADV DE JAGER: And you were also of the opinion that they thought he did something with your mothers? Is that correct?

MR MNGOMEZULU: Those were rumours that you would hear from people in the street. It is not something that I would call possible evidence.

ADV DE JAGER: But that were the rumours why they were against Mr Mkhize, is that correct? Rumours going around?

MR MNGOMEZULU: Yes I would agree with you.

ADV DE JAGER: And then you've told us previously that you and Mr Phewa, you wanted him, "there was a bad relationship between the two of us, either me or he would die". What did you mean by that? What was the cause of this bad relationship between the two of you?

MR MNGOMEZULU: I explained before that the situation between ourselves an Phewa was only good before the formation of Amabumvu. After the formation of Amabumvu, it was not easy for me to approach him as an ex-colleague. After they formed Amabumvu our relationship became very bad to such an extent that we could not even talk to them. Even in that meeting when we were all there present, Mr Mngomezulu was present, there were many misunderstandings. There was even a meeting called by Mr Msimande as well as another one called by Mr Gwala which ended in chaos. By the time the meeting finished people were shooting one another. That is why I have explained that the situation was very bad between us.

ADV DE JAGER: I understand the two groups now, but the personal relationship between you and Mr Phewa, because you said "I wanted him, there was a bad relation between the two of us". Did you speak to each other, did you have a fall out one time or another? What happened between the two of you?

MR MNGOMEZULU: I still explain, please here me. I had never had a personal confrontation with Phewa. Until the time that we had differences, organisational differences, we did not have a personal conflict, he was not somebody that I was close to.

ADV DE JAGER: It was all about the politics between you and him?

MR MNGOMEZULU: Yes I will say so because he even accused me of killing his father.

CHAIRPERSON: But if I understand your evidence, Mr Mngomezulu, when you were giving your evidence then, your evidence in chief, what you were basically trying to say is that there was bad blood between Amabumvu and yourselves and you didn't see eye to eye and that whenever you met one of you had to be down? That was my understanding of your evidence. Meaning one of you either your organisation, a member of your organisation or members of his organisation, had to go down because of the constant attacks that you were launching against each other, is it not so?

MR MNGOMEZULU: I can it was tried for us to see eye to eye.

CHAIRPERSON: No I understand, just listen to my question which is, it actually wants you to say yes or no. I don't want an explanation, I'm putting to you how I've understood your evidence, that you did not mean to say there was this personal enmity between you and Phewa, you were suggesting that there was this enmity between members of your organisation and members of the organisation to which Phewa belonged and that whenever you met as members belonging to opposing groups you fought?

MR MNGOMEZULU: Yes that is correct.

MR MALAN: May I just also try to get clarity? You said earlier in your evidence that Mr Mkhize tried to broker the peace but he wasn't successful, did I hear you correctly?

MR MNGOMEZULU: I would you to repeat this question for me?

MR MNGOMEZULU: In the beginning in your evidence in chief, I think it was then, you said that Mr Mkhize even tried to broker the peace but he wasn't successful. He also got in and this was part of all this, he also got in Harry Gwala and Blade Msimande to also speak to them but I just want to make sure, Mr Mkhize was also there to explain the alliance and the peace. Was that his attitude or did Mr Mkhize say fight the Amabumvu?

MR MNGOMEZULU: Mr Mkhize tried many times so that there's peace between us and the Amabumvu but he was unsuccessful.

MR MALAN: But his line was peace no fighting, that was Mr Mkhize's stance if I understand you correctly?

MR MNGOMEZULU: Yes I agree with you.

MR MALAN: And Blade Msimande and Harry Gwala exactly the same line, they were saying to you don't fight, we want an alliance, we're together in this, we have an election coming, we must work together, is that correct?

MR MNGOMEZULU: Harry Gwala came and explained to all of us that we shouldn't fight but after he left he could see that the situation wasn't calm and he could suspect that after he left there was going to be violence and also Mr Msimande tried to bring peace in that area.

MR MALAN: But really my understanding is simply this, this conflict wasn't fuelled by the leadership, it was at grassroots. Mr Mkhize did not ask for them to fight, Harry Gwala did not ask the Amabumvu to fight, Blade Msimande did not ask the Amabumvu to fight ...(intervention)

CHAIRPERSON: No, it's the ANC.

MR MALAN: Oh, the ANC sorry - ask the ANC to fight, everybody was saying don't fight, is that your evidence?

MR MNGOMEZULU: If I may disagree there with this following reason that Mr Gwala was approached and at the time Mr Gwala and Mr Mkhize were not in good terms at that time because of the situation. Why because the Amabumvu used to leave Ascot for Pietermartizburg and they will report to Mr Gwala about Mr Mkhize, statements which were not true and Mr Mkhize came to a decision that he wanted to resign as a chairman of the ANC in the area and he was worried because he realised that the situation wasn't safe and Mr Gwala came one time and we were in a hall together with Mr Mkhize and people started shooting at each other. The meeting never ended as it was planned. Then, which I wouldn't say for certain what I suspect or what I've suspected was that Mr Gwala was also with the Amabumvu, not the Mkhize group or the ANC group.

MR MALAN: Ja but that was clearly so, I mean he was representing the SACP in the alliance? So your suspicion was correct that he was on their side but that's not the issue, the question is Gwala didn't say to you you must fight, he said have peace? I just want to make sure. Did Gwala say to you fight or did he say we're part of the same alliance?

MR MNGOMEZULU: What I can tell this Committee I am not certain whether this meeting I'm talking about was the first meeting with Mr Gwala and us or the second one. But what I know is that one time on his way to the meeting he was attacked and the rumour came that he was attacked by Teaspoon Mkhize's dogs therefore I'm not sure, that's why I said I'm not sure which side he was.

MR MALAN: I think you can accept that he was on the side of the SACP because he was an office bearer but he was also part of the alliance but I think, if I understand you correctly, Mkhize never told you to fight, he told you somewhere we must make a peace and Blade Msimande came and told the same. I'm referring to your paragraph 7 and 8 really if we follow through, it's 7.

CHAIRPERSON: 7?

MR MALAN: Ja. Okay let me just take you back to paragraph 4 at the top of that same page. Sorry no, actually the next page, the end of paragraph 7. This Mr Zuma, he was killed in a bomb attack you say? Was there a prosecution of his killers? Did they catch the people who planted the bomb?

MR MNGOMEZULU: In my knowledge, no one was arrested.

MR MALAN: Did you think that this came from Amabumvu?

MR MNGOMEZULU: Without any doubt I can say yes.

MR MALAN: It could not have been the IFP or police?

MR MNGOMEZULU: Let me just explain something about the IFP at that time. At that time the situation between IFP and ANC wasn't so tense, it wasn't that much tense and Zuma was attacked during the time when Amabumvu and the ANC was fighting. About the police I cannot comment.

MR MALAN: I'm not sure whether I understood the translation. Was Zuma attacked during the time that they were fighting or not fighting?

MR MNGOMEZULU: Were not fighting with the IFP but were fighting with the Amabumvu.

CHAIRPERSON: In fact it was that there was no fighting, the situation was not that tense.

MR MALAN: This Mr Phewa that you refer to, I understood that there were two different Phewas. Who is he or who was he?

The one that was killed, you say Mr Phewa and Mr Gqabha? I can't pronounce it, Gqabha?

MR MNGOMEZULU: Let me just correct you before I can answer about Mr Phewa, it's not Mr Gqabha, the name of the person it's Gqobha. It's the name not the surname.

MR MNGOMEZULU: I didn't get the spelling, will you spell the name again?

MR MNGOMEZULU: It's G-q-o-b-h-a. Mr Phewa who died is Christopher Phewa's father.

MR MALAN: Do you know who killed his father?

MR MNGOMEZULU: No I don't.

MR MALAN: Do you accept that he was killed by your group?

MR MNGOMEZULU: No I cannot say yes because I don't know really who killed him.

MR MALAN: And the other person, Gqobha?

MR MNGOMEZULU: I also don't know who killed him.

MR MALAN: But you're certain that Zuma was attacked by Amabumvu and Thulani who shot him?

MR MNGOMEZULU: The reason I'm saying so it's because I was close to Mr Zuma before he was killed and he was told that he was going to be killed because he was always with us and he was staying in our area. We were his bodyguards.

MR MALAN: No, I heard that part earlier, I asked about Thulani now. Who shot Thulani?

MR MNGOMEZULU: Amabumvu killed him, they took him from his car he was from work during the day and they killed him.

MR MALAN: Was this Thulani Mdlala? Or is this a different Thulani?

MR MNGOMEZULU: A different Thulani, this one is Thulani Mbaso.

CHAIRPERSON: Mr Mngomezulu, apart from the intervention of Mr Blade Msimande and Mr Harry Gwala who apparently then were members of the SACP, was there any intervention by the ANC hierarchy with regard to the peculiar situation in Wembesi concerning this conflict between your organisation and Amabumvu?

MR MNGOMEZULU: I think Mr Mkhize according to me, he contacted the Natal Midlands, the people from Pietermaritzburg and I think what he did was actually accurate because every time we had problems we were reporting to them in Pietermaritzburg but I comprehend the gist of your testimony to be saying that you were not entirely satisfied with the intervention of Mr Gwala whom you suspected to be siding with Amabumvu. Did you not do anything to take issues further up than Mr Gwala whose intervention you were not satisfied with?

MR MNGOMEZULU: As I've already explained to the Commission that Mr Mkhize decided to resign as a Chairman. He decided to give up on this whole issue and they brought someone called Mr Magesa to take over.

CHAIRPERSON: When did Mr Teaspoon Mkhize resign as chairperson of the ANC in Wembesi?

MR MNGOMEZULU: I think it was in 1994 the very same time when we had problems with the SACP.

CHAIRPERSON: Was it before March '94 when this incident occurred, that is the killing of Mr Phewa? I'm referring to the Phewa the one you are here today for, I don't know whether it's the son or the father?

MR MNGOMEZULU: I think at that time Mr Mkhize had already resigned, was no longer a chairman.

CHAIRPERSON: And who had taken over the reins of chairmanship after his resignation? You've mentioned a name and I didn't take it down.

MR MNGOMEZULU: Mr Magesa, he's the one who was a chairman when I was arrested, he was an acting chairman in fact.

CHAIRPERSON: Was he appointed by the community or recommended by the national leadership of the ANC to act as chairperson after Mr Mkhize's resignation?

MR MNGOMEZULU: I cannot be certain but this is what I heard that after Mr Mkhize had resigned, Mr Magesa acted as a chairperson.

CHAIRPERSON: Ms Thabethe, do you have any questions to put to Mr Mngomezulu?

CROSS-EXAMINATION BY MS THABETHE: Yes Madame Chair. Thank you Madame Chair.

CHAIRPERSON: Did we interrupt you whilst you were in the process of cross-examining?

MS THABETHE: Yes Madame Chair.

CHAIRPERSON: Our humblest apologies.

MS THABETHE: Taken.

MR MALAN: Ms Thabethe, if I remember correctly you said we had already asked all the questions, you had only the one left?

MS THABETHE: I've got more questions from what has arisen, yes thanks.

When you killed Christopher Phewa, did you regard - or at the time when you killed Christopher Phewa, did you regard Amabumvu as a political opponent or as a political ally?

MR MNGOMEZULU: As I've already explained before that generally I know Amabumvu as an ANC alliance except for the group of Amabumvu which resided in my area but I personally, I thought that these people who called themselves Amabumvu, they were using the name of the organisation to reach their objectives, their personal objectives.

MS THABETHE: As an opponent?

CHAIRPERSON: Ms Thabethe, you both are making it very difficult for the translator to keep up because whilst we are still listening to her translation I think the applicant continues to gather speed speaking and I don't know how she has been able to cope with the ground breaking speed at which the applicant has been giving his evidence but I think she has been translating very well. You please must try and accommodate her abilities, she can only do so much so please you have the advantage unlike the applicant of being able to listen to your headphones and you can hear when she's still busy translating and don't put a question to Mr Mngomezulu while the translation is still going on. You may proceed to put your question.

MS THABETHE: I'm indebted Madame Chair. Should I repeat my question?

CHAIRPERSON: Yes.

MS THABETHE: Now what I was trying to ascertain from you Mr Mngomezulu is I understand you regarded the SACP, the organisation as an ally of the ANC but I'm talking about you now at Wembesi when you actually, at the time when you actually killed Christopher Phewa because you see, what I'm trying to ascertain, you're saying SACP, you saw SACP as an ally to the ANC generally but at Wembesi you saw it as a political opponent so my question was when you killed him did you believe to be directing your act towards a political opponent or a political ally, that's my question to you?

MR MNGOMEZULU: The SACP from Wembesi were my enemies.

MS THABETHE: My section question is when you killed Christopher Phewa did you in your belief or did you believe that you - okay let me rephrase my question, when you killed Mr Phewa, were you in any way pursuing any objective of any organisation, political organisation or ...(intervention)

CHAIRPERSON: Why did you kill Mr Phewa?

MS THABETHE: Thank you Madame Chair. Do you understand the question? The question is why did you kill Mr Phewa, did you think by killing Mr Phewa you'll be achieving any political objective on behalf of your organisation which was the ANC?

MR MNGOMEZULU: My main objective was I wanted to gain peace between the ANC and the SACP. In the morning of that day that had killed the uncle of my co-accused and at that time I was still angry but our main objective was to bring peace and to bring the two organisations together.

CHAIRPERSON: You want to take it up Ms Thabethe, I suppose?

MS THABETHE: Yes. And by killing Mr Phewa, how did you think that peace would be achieved in your area?

MR MNGOMEZULU: What I thought as a bodyguard of Mr Mkhize is that I know that if a political enemy comes to you with war, that's what you should use as well to fight war with war. I told myself that if they are coming with war we were going to come with war and then if they fail or if we fail then we will sit down and talk about our different issues.

MS THABETHE: Did you regard Mr Mkhize as your leader at the time when you committed this offence?

MR MNGOMEZULU: There are two Mkhizes, before I can answer I need to know which one you're referring to?

MS THABETHE: Teaspoon.

MR MNGOMEZULU: Yes I regarded him as a leader who can take us forward or was supposed to take us forward and I trusted that he was going to bring development in the townships.

MS THABETHE: You see why I'm asking this question it's because I'm trying to reconcile what you've just said, you said Mr Mkhize promoted peace in the area, he said you shouldn't fight, that's what he told you, isn't it, as an ANC organisation? He was promoting peace as your leader.

MR MNGOMEZULU: Yes I do agree.

MS THABETHE: Now you've also given evidence to the effect that when you actually killed Christopher Phewa he was no longer the leader in the area, there was somebody else who had taken over, Magesa, that's correct as well?

MR MNGOMEZULU: Yes I said so.

MS THABETHE: Sorry, let me just finish my question so that you can answer accordingly. My predicament, I'm trying to understand why you decided not to listen to Mr Mkhize and why you decided even after he had left the ANC as the Chairperson why you did not stop what you were doing as he had advised you, why did you continue to fight the other party when he had advised you not to do so?

MR MNGOMEZULU: I do agree that at time Mr Mkhize had resigned and yes it's true that he will come to us and tell us not to fight but I personally, I used to ask myself what he meant if he was saying to us we should stop fighting when we were watching people dying in front of us and I thought that I cannot stand looking at these people killing for instance my mother or himself, I didn't want them to go to that extent. Yes he will come to us and tell us not to fight but after a day he told us not to fight, we will hear that someone has been killed and we are there sitting doing nothing. Yes, Mr Mkhize never told me personally that I must take a gun and go and shoot someone. I made that decision alone, I made this because of what I felt inside and because of what I saw, the situation was bad and I thought that maybe one day my mother was going to be killed in that way or in that manner.

MS THABETHE: When you say you made that decision yourself to fight the enemy, did you make it yourself as Mr Mngomezulu or did you have any kind of meeting with anybody else or with the ANC, other people of the ANC, did you have any meetings discussing what was happening in the area and how you were going to deal with it?

MR MNGOMEZULU: What I can say is that the community in the area was tired of this fight but no one came to us as a group of ANC boys and said we must go and kill but we decided on our own that we were not going to give up and this happened after we fought IFP and there was no time to hold meetings at that time because of the situation in the township, there was no control at all and those people used to come maybe three times a day looking for you and they will tell everyone they meet on the streets that they are looking for so and so and even with Mr Mkhize they did tell people that they were looking for Mr Mkhize first to kill him.

MS THABETHE: Madame Chair ...(intervention)

CHAIRPERSON: What you are basically saying Mr Mngomezulu is that inasmuch as the wishes of your local leadership and that would be the leadership under the chairmanship of Mr Mkhize whilst he was there before he resigned inasmuch as it was their wish that you should not engage in any kind of attacks whatsoever with the Amabumvu members. You as the membership of at grassroots level, you say the heat was just too great for you to leave things as they were and not to engage in such attacks and that you as the membership at grassroots level, you acted on your own against the wishes of the local leadership in your organisation?

MR MNGOMEZULU: Yes, that's basically what I'm saying. No one made this decision for me, I saw the way things were happening in the area and I decided that rather than running away it's better to die if it's your turn to die. As I've already mentioned that I was attacked by a bomb and I was asleep in the house. My mother wasn't safe, everything near wasn't safe in that township.

MS THABETHE: No further questions Madame Chair, thank you.

ADV DE JAGER: At the beginning you told us that you killed this man in self defence because he approached you and you killed him because you feared for your life. Is that right?

MR MNGOMEZULU: Yes that is right.

ADV DE JAGER: So you took the decision to kill him on the spur of the moment there when he came towards you, isn't that right?

MR MNGOMEZULU: That's right.

ADV DE JAGER: Or did you plan long before to kill him?

MR MNGOMEZULU: As I have said before that I never had any personal confrontation with Chris Phewa, this was a decision which I'd taken then and there.

ADV DE JAGER: So you didn't sit down and say this man is my political enemy, he's working against my party, I'm going to kill him?

MR MNGOMEZULU: The way the situation was, so tense, there was no time to sit down and think that whoever is going to come and attack so and so, there was no time for that. We were scared we were going to lose our lives and I decided there and then that if I were to let him go he was going to kill me.

CHAIRPERSON: I would like to understand you clearly on this point. Are you saying that had you not been confronted by Phewa about the death of his father you would not have killed him even though he was a member of Amabumvu and you had running battles with Amabumvu members?

MR MNGOMEZULU: Yes I will agree and I would support my answer. When I killed Mr Phewa junior it was because of the situation in the township. Even if it wasn't him but if it was someone from his group I was going to do the same, I was going to take the same decision. For anyone of who would come and approach me who was from the Amabumvu I was still hurt at that time, they had killed the school principal, the uncle of my friend and they had attacked my house with a bomb. That's when I realised or I decided that if I don't use a slightest chance that I get then they will come after me.

CHAIRPERSON: Let me make a follow up to that question. Are you suggesting to this Committee that you had made a conscious decision to kill members of Amabumvu because of the political situation at Wembesi at the time of Mr Phewa's killing?

MR MNGOMEZULU: I'd like to clarify one thing to this Commission, I wasn't going to take a decision to kill my brothers because they were my brothers but the only problem came when they used the name of the SACP wrongly. I know what SACP means to me.

CHAIRPERSON: May I interrupt you. My simple question is and please listen carefully to what I'm saying. Had you taken a conscious decision to kill any member of Amabumvu at the time when Mr Phewa was killed. Had you as Mr Mngomezulu, being a member of the ANC, taken a decision to kill any member of the Amabumvu.

MR MNGOMEZULU: No.

CHAIRPERSON: Now if that is not so, how could Mr Phewa - how could you have killed Mr Phewa simply because he was a member of Amabumvu which is what you have just stated prior to my second question?

MR MNGOMEZULU: I had already explained to this Commission that when he approached me at the taxi rank he said some insulting words to me and at that time I had already heard that in the morning they had shot the uncle of my friend and two or three days ago they had killed a school principal. At that time I was still bleeding inside my heart. It wasn't easy for me to be not scared or wanted to react there and then when he approached me. I did this in a split second, that's why I'm here to apologise.

CHAIRPERSON: Had he not confronted you about the death of his father would you have still killed him bearing in mind the many events that you have now just evinced to, that had happened to you and your relatives?

MR MNGOMEZULU: No I wasn't.

CHAIRPERSON: Thank you. Ms Moodley, do you have any re-examination emanating from the questions from the bench as well as from Ms Thabethe?

MS MOODLEY: Yes your Honourable Chairperson.

CHAIRPERSON: You may proceed to do so.

RE-EXAMINATION BY MS MOODLEY: Mr Mngomezulu, my learned colleague asked the question to which you replied that you did not view Christopher Phewa as your opponent, political opponent, would you like to clarify that response that you gave considering the full affidavit and the facts in the affidavit that you deposed to and handed to this commission?

Is there anything that you would like to add to that?

MR MNGOMEZULU: Yes I will add something. I saw Chris as a political opponent after he joined the Amabumvu and his father was the person who was on the forefront of Amabumvu. He had a position on that organisation. I knew Chris before the Amabumvu was formed and if Amabumvu was not formed I am certain that I wouldn't have done what I've done in 1994 but because of the situation between the Amabumvu and ourselves it led me to be in prison today. Thank you.

MS MOODLEY: Mr Mngomezulu, you offered an explanation in relation to what Mr Teaspoon Mkhize as leader then of Wembesi of the ANC branch did in relation to the ANC hierarchy to solve this crises and to diffuse the tension that was prevalent at Wembesi. You talked of the contact that was made with the Natal Midlands. Is there anything that you wish to add in relation to the particular meeting that you made reference to where there was a shoot out that developed and what had emanated from there because I think it would be pertinent for the Commission to here that.

MR MALAN: Why don't you ask him a direct question so that he can understand what you want him to tell us please?

MS MOODLEY: I don't want to do it in a way that - I can do it then directly if you please.

Mr Mngomezulu, would you tell the Commission about the events and the conditions that transpired after the meeting that Mr Teaspoon Mkhize had with Mr Harry Gwala at Wembesi in regard to solving the problem at Wembesi.

MR MNGOMEZULU: Sorry, I understood that meeting was a meeting where Mr Gwala addressed them?

MS MOODLEY: Yes but I ...(intervention)

MR MALAN: It wasn't a meeting between Mkhize and Gwala it was a meeting where he addressed the branch and the followers, the members?

MS MOODLEY: Mr Mngomezulu has indicated to the Commission there was more than one meeting.

MR MALAN: And was he present at the other meeting?

MS MOODLEY: Who the applicant?

MR MALAN: Yes.

MS MOODLEY: I'm trying to now get the applicant to respond to the Commission on that particular aspect. Would you like to answer that Mr Mngomezulu?

MR MNGOMEZULU: Yes. I was present at the first meeting where Mr Mkhize and Mr Harry Gwala was present as well and the meeting didn't end well and there were no decisions taken between the Amabumvu and ourselves because there were few Amabumvu members, I think there were less than 15.

Mr Gwala decided that he was going to report this matter back to the office in Pietermaritzburg and he will come back and report to Mr Mkhize. Unfortunately he didn't come back but he sent Mr Msimande to come and explain to us about the SACP and when he was present Mr Msimande also didn't take any decisions or conclusions, we never resolved the matter and Mr Harry Gwala came again and that's when there was shootings after the meeting. I used to go to these meetings but sometimes I wouldn't go inside the hall, I would be outside.

MR MALAN: Thank you. Please Ms Moodley, if you have re-examination, I mean you must be more direct in asking your questions flowing from what ...(intervention)

MS MOODLEY: There is a point to this and if you would bear with me ...(intervention)

MR MALAN: But he has repeated all the evidence we have before us.

MS MOODLEY: Evidence in chief but I'm going to now say to Mr Mngomezulu the question of the leadership in relation to where Wembesi was always clear and uncontroverted, that peace must be brokered in that area of Wembesi, would you agree with that?

MR MNGOMEZULU: Would you please repeat your question?

MS MOODLEY: There was no confusion in the messages that were emanating from the leadership, would you agree with that sentiment that the leadership, both of the ANC and the SACP was clear that peace had to be brokered at Wembesi because that was in the interests of the entire community?

MR MNGOMEZULU: I wouldn't agree with that because there were people who never wanted peace at Wembesi. For one, Mr Mkhize and Mr Phewa, those were the people who never used to come to Mr Mkhize's house and before they used to come but this was before the Amabumvu was formed.

CHAIRPERSON: Mr Mngomezulu, I think what is being put to you is quite simple. It was quite clear, clear as daylight, that your organisation wanted to broker peace. The leadership of your organisation wanted to broker peace in your area and that has been your evidence all along? Mr Teaspoon Mkhize always advocated that you should not fight against the Amabumvu?

MR MNGOMEZULU: Yes but Mr Mkhize will tell us not to fight Amabumvu but the Amabumvu wouldn't be present in these meetings.

CHAIRPERSON: Just listen to the question, the question was just wanted to elicit what happened from your side, from your side as the ANC. That I think was covered quite succinctly, Ms Moodley?

MS MOODLEY: I would just like to deal with one more issue in relation to political control over the area. You understand the SACP not to be in conflict with the ANC, there was a campaign in Wembesi for the elections that were coming up shortly. Can you offer any other explanation as to why something that was as clear as a bell to any member of the community that the ANC and the SACP were really a political alliance and that the election the next month after this incident was going to be contested behind one flag. Why did you ever apply yourself to that situation and you had thoughts that you would like to share with the Commission on that about why, if a party was not in conflict with an alliance party, there was violence in your area? Do you have any thoughts on that matter Mr Mngomezulu?

MR MNGOMEZULU: No I don't have any idea, I cannot comment on that at all.

MS MOODLEY: Thank you. No further questions.

CHAIRPERSON: Thank you. I suppose this is the end of Mr Mngomezulu's application?

MS MOODLEY: Yes.

CHAIRPERSON: Yes and you will then proceed with the next applicant that being Mr Madlala. After Madlala, you propose to call a witness in support of both of their applications who will generally throw more light on the political context at Wembesi?

MS MOODLEY: Yes.

CHAIRPERSON: Yes, we will adjourn until tomorrow at 9 o'clock. We'll again request correctional services to be in time. We appreciate that they were here before 9 o'clock. We hope we can still making that appreciation, would also appeal to the legal representatives to please be here before 9 o'clock to enable the proceedings to commence at 9 o'clock on the dot. We'll proceed with Mr Madlala's ...(intervention)

MS THABETHE: Sorry Madame Chair, can I just butt in there please? I have a slight difficulty with tomorrow because Mr John Wills who is representing Mr Ndaba and Mbanjwa had indicated to me that he would like to be afforded the first opportunity to lead the evidence because in actual fact he was supposed to be in court tomorrow and due to the short notice that we had to ask him to come here the court did not allow him not to come at all in court and apparently he has been told several times that they won't allow the postponement because he has tried to postpone this matter on the basis that he had to appear in front of the Truth Commission so I had assured him that we will start with his matter at 9 o'clock so I'm facing that difficulty now.

CHAIRPERSON: How long do you contemplate Mr Mbanjwa and Ndaba's application to last Ms Thabethe?

MS THABETHE: I don't see it lasting more than an hour Madame Chair.

CHAIRPERSON: That being so, Ms Moodley, would you have any objection if we started with Mr Mdlala at half ...(intervention)

MS MOODLEY: That would be in order.

CHAIRPERSON: Let's say immediately after concluding that application we'll then proceed with your application. The application of Mr Mdlala will then stand down until tomorrow at half past 10 or at any later time when Mr Mbanjwa's application would have been concluded and disposed of.

MS MOODLEY: So I will be excused for the morning until then?

CHAIRPERSON: You will be excused until 10.30 tomorrow morning. Will you please make sure that your witness is able to be here timeously? Thank you.

MS MOODLEY: Thank you.