CHAIRPERSON: Good morning, we're about to start the proceedings. For the record, it is Monday the 27th of September 1999, it is a hearing of the Amnesty Committee, held at the JISS Centre, Johannesburg. The Panel presiding is myself, Denzil Potgieter, together with me Advocates de Jager and Bosman.

We will be starting off with the amnesty applications of J B Makhanye and J H Makhanye. The respective reference numbers are AM3834/96 and 3835/96. I'm going to ask the legal representatives to put themselves on record. First we start with you, Mr Motloung.

MR MOTLOUNG: Thank you, Mr Chairman. For the applicants, my name is Ike Motloung from the firm, Makum(?) and Associates in Germiston. I'll be representing both applicants, Joseph Makhanye and Jabulani Makhanye. Thank you.

CHAIRPERSON: Thank you, Mr Motloung. And for the victims?

MR NYAWUZA: Thank you, Mr Chairman. I am Oupa Patrick Nyawuza, from the firm O P Nyawuza Attorneys in Johannesburg. I'll be representing Mr Simon Manana, the father of the deceased.

CHAIRPERSON: Mr Nyawuza. Ms Lockhat?

MS LOCKHAT: My name is Ms Lockhat and I appear on behalf of the Truth and Reconciliation Commission. Thank you, Chairperson.

CHAIRPERSON: Thank you very much. Yes, Mr Motloung, I assume that we will start off with the application of Mr Joseph Makhanye.

MR MOTLOUNG: Thank you, Mr Chairman. I have discussed the matter with the Evidence Leader and we are posing that for convenience, we start with Jabulani Makhanye.

CHAIRPERSON: That's in order. So we'll start off with Mr Jabulani Makhanye. Yes, do you want your client to be sworn in?

MR MOTLOUNG: Yes, Mr Chairman.

ADV DE JAGER: Could you stand up please.

JABULANI H MAKHANYE: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Motloung, is there anything that you wanted to place on record, or do you want to present the evidence of your client?

MR MOTLOUNG: Thank you, Mr Chairman. Mr Chairman, could I just confirm that you have before you two affidavits, one being essentially a founding affidavit and the other being a confirmatory affidavit. The founding affidavit would be in the name of Jabulani H Makhanye and the confirmatory would be by his brother, Joseph Makhanye.

ADV DE JAGER: Sorry, have you got the same volume as we've got?

MR MOTLOUNG: Thank you, Mr de Jager. They're not part of the bundle, I've just made them available this morning.

ADV DE JAGER: Oh, I see.

CHAIRPERSON: Yes, in that event we will mark the affidavit of Mr Jabulani Makhanye, as Exhibit A.

MR MOTLOUNG: Thank you, Mr Chairman.

CHAIRPERSON: And the other one of Mr Joseph Makhanye, as Exhibit B.

MR MOTLOUNG: Thank you, Mr Chairman. And Mr Chairman, and the Learned Commissioners will realise that the affidavits have not been attested to, I propose to read the contents thereof into the record and my clients can simply confirm them.

CHAIRPERSON: Yes, that will be in order if they confirm it under oath.

EXAMINATION BY MR MOTLOUNG: Thank you, Mr Chairman. In the amnesty application held at JISS Centre, Johannesburg, the application by Joseph Makhanye and Jabulani Makhanye, the affidavit by Jabulani Makhanye, I read it into the record -

I realise, Mr Chairman, there's an "s" missing, could I ask that the documents be deemed so amended.

CHAIRPERSON: Yes, very well.

MR MOTLOUNG: Thank you, Mr Chairman.

Mr Chairman, can I then ask my client to confirm if the contents are correct?

CHAIRPERSON: Yes, certainly.

MR MAKHANYE: I do concur with what has been read, the statement that has been read.

You see, what happened in Morgenzon ...(intervention)

MR MOTLOUNG: Mr Makhanye, before you carry on. Mr Chairman and the learned Commissioners, we then propose to amplify some of the aspects covered in the affidavit.

CHAIRPERSON: Yes.

MR MOTLOUNG: Mr Makhanye, can you tell this Honourable Committee as to where this tavern is actually situated, whether it's in fact in the township or in the town, in Morgenzon.

MR MAKHANYE: The tavern is situated in the township, Sivukile township, that is.

MR MOTLOUNG: And why did you go to this tavern on this particular day, the 4th day of May 1990?

MR MAKHANYE: On the 4th of May 1990, I went to the tavern and on arrival I ordered a soft drink and I was in the company of other comrades.

MR MOTLOUNG: Okay. Do I understand you correctly that you went there to drink?

MR MAKHANYE: Yes, you understand me quite well.

MR MOTLOUNG: Now the deceased, did you know him?

ADV DE JAGER: Sorry, did you go to drink in the sense of drinking alcohol or ...? Because you ordered a soft drink.

MR MAKHANYE: You see I was having a soft drink but my other comrades were drinking beers, or liquor, alcohol.

MR MOTLOUNG: Now the deceased in this matter, did you know him?

MR MAKHANYE: Yes, I know him very well.

MR MOTLOUNG: Do you know what was his profession?

MR MAKHANYE: He was e policeman in Morgenzon.

MR MOTLOUNG: Can you briefly explain to this Committee as to what was the relationship between the community and members of the community who happened to be policemen.

MR MAKHANYE: Yes, I could briefly explain that. You see there was a consumer boycott that was on in Morgenzon and there were two major issues in regard to this consumer boycott and it was about the business people.

There was two doors there, or there were two doors, one for the white businessmen and - one for the whites and one for the blacks ...(intervention)

MR MOTLOUNG: When you say there were two doors there, do you mean where? Do you mean at these businesses or where?

MR MAKHANYE: I mean in the town of Morgenzon.

MR MOTLOUNG: Yes, but the two doors, at what particular place or places were these two doors in Morgenzon?

MR MAKHANYE: Sorry?

CHAIRPERSON: In other words, Mr Makhanye, were the businesses segregated? In other words, black people used one entrance into a shop and black people used anther entrance into a shop? Is that what happened there?

MR MAKHANYE: Exactly.

CHAIRPERSON: And that was one of your problems?

MR MAKHANYE: Yes.

CHAIRPERSON: And is that why you were having a consumer boycott?

MR MAKHANYE: Yes.

CHAIRPERSON: A consumer boycott of what were you having, or which businesses?

MR MAKHANYE: May you please explain the latter.

CHAIRPERSON: There was a consumer boycott, you've said that, we wanted to just save a bit of time ...(intervention)

MR MOTLOUNG: What businesses were you ...(intervention)

CHAIRPERSON: ... which businesses were you not buying from?

MR MAKHANYE: The white businesses.

CHAIRPERSON: Yes. Mr Motloung, carry on.

MR MOTLOUNG: Now the deceased, you said he was a policeman, were policemen allowed to stay in the Sivukile township?

MR MAKHANYE: There was about two months that the police had left the township to the urban areas, or in town.

MR MOTLOUNG: And why did they leave the township?

MR MAKHANYE: The community deemed it fit that the police should be not part of them because they were not co-operative.

MR MOTLOUNG: Now talking about the deceased in particular, is he one of those policemen who left this township?

MR MAKHANYE: The late resided in the township. And this is how it happened. He was one of the people who spoke to me, that he will be co-operative with the comrades, he will never bear living in town because he was brought up in the township.

CHAIRPERSON: Was the deceased a municipal policeman, not a South African policeman?

MR MAKHANYE: Sorry?

CHAIRPERSON: The deceased, was he a municipal policeman?

MR MAKHANYE: ...(no English interpretation)

CHAIRPERSON: Tell me, Mr Makhanye, are you listening to what I'm saying or are you listening to what the interpreter is saying? What do you hear on your headphones?

MR MAKHANYE: Nothing. I heard nothing.

CHAIRPERSON: No, then Mr Motloung you must please assist him. Alright the technician will get him onto the right channel.

CHAIRPERSON: Just listen if you can now hear the translation. Do you hear the interpreter speaking?

MR MAKHANYE: Very well, I hear now.

CHAIRPERSON: That's fine. Yes, so was the deceased a municipal policeman or what?

MR MAKHANYE: I knew him to be SAP, because he was always in the SAP uniform.

MR MOTLOUNG: Now the deceased, did you people then ultimately allow him to continue staying in the township?

MR MAKHANYE: Yes, he was allowed to continue living with us in the community, as a person who had earlier on indicated that he'll be very well co-operative as well as work hand-in-glove with us, because he was brought up in the township and would not bear living in town.

MR MOTLOUNG: Was he the only policeman who was allowed to stay?

MR MAKHANYE: No, there was another one, Mr Ghama, who was one other who said he will be co-operative with us.

MR MOTLOUNG: Was the relationship therefore, between the community and these two police officers a good one or not?

MR MAKHANYE: It was a wonderful relationship that we had with the two policemen as a community.

MR MOTLOUNG: Now gravitating towards the consumer boycott, by the time that the deceased was killed, the 4th day of May 1990, how long had the consumer boycott been going on? For how long had it been going on?

MR MAKHANYE: I think it would be approximately a month that it has been going on, or three weeks.

MR MOTLOUNG: Now in your own words, can you tell this Honourable Committee as to what happened that regards this matter, regarding that consumer boycott and so on.

MR MAKHANYE: On the 4th, during the day the late began now not to be co-operative with the comrades, went to town and bought from the very - no, he bought a cigarette and when he came back he found comrades standing at the entrance of the township, at the cross-road there and when the comrades requested to search him to ascertain if he had bought anything, and he drew out his gun instead and ran after the comrades. That was when the comrades fled into the township.

MR MOTLOUNG: Now this whole incident that you are describing, were you there yourself, Mr Makhanye, when this happened? Did you see it yourself or is this something that you were told about?

MR MAKHANYE: No I wasn't there, I was at work. I will come home on weekends. So that day was on Friday, the very day I will coming back home. And on arrival, around two, the comrades came and knocked at my door and informed me about the deeds of the late and I told the comrades that as he is part of our community we will meet with him on Saturday, he will be on duty I suppose and I will approach him as a person who had promised me earlier on that he will be very co-operative with the comrades. I think it's an ideal act for me to go and speak to him.

MR MOTLOUNG: And maybe as a matter of interest, why did the other comrades have to report to you? Did you assume any particular position in any structure?

MR MAKHANYE: You see what happened, amongst the comrades there was an organiser and a discipline. Now I would give out the instructions regarding discipline. Now I will also give directions as to which way to go should there be any problems arising. And I gave them the word that the following day I will definitely approach the man, the policeman that is, in relation to what they've just reported to me.

MR MOTLOUNG: Now was your position ...(indistinct) in any terms, were you called something? Do you have any particular term regarding your position?

MR MAKHANYE: No, they referred to me as comrade, or called me comrade.

MR MOTLOUNG: Now you intended to meet the deceased the following day ...(intervention)

CHAIRPERSON: Mr Motloung, before you step off that point because that is a relevant point, can't we just finish off this aspect.

Did you belong to any community structure or political organisation? You spoke about a disciplinary structure, or you had something to do with discipline. Can you explain that to us.

MR MAKHANYE: I was a member of SACO, Sivukile Action Community, under ANC. That particular structure, SACO, I formed part of it.

CHAIRPERSON: Yes, just give us the acronym again, is it SACO, S-A-C-O?

MR MAKHANYE: Yes. S-A-C-O.

CHAIRPERSON: And what does it stand for again? Just repeat it.

MR MAKHANYE: Sivukile Action Committee Organisation.

CHAIRPERSON: And you say it was affiliated to the ANC?

MR MAKHANYE: Yes, it was an action committee that was in charge of the things that were happening in the township of Sivukile and report to the African National Congress, as an umbrella body.

CHAIRPERSON: And you say that you had to something with discipline, can you explain that?

MR MAKHANYE: You see, should there be a person for instance, whose conduct was not in order, then they would tell me and I will have to inform the Chairman of SACO and we will therefore discuss the matter as to how we deal with the particular person.

ADV DE JAGER: Who was the Chairman of SACO?

MR MAKHANYE: George Makhanye was the Chairman of SACO.

ADV BOSMAN: Mr Makhanye, how old were you at the time?

INTERPRETER: How old were you at the time, what was your age?

MR MAKHANYE: I was 32 years old.

ADV BOSMAN: Thank you.

CHAIRPERSON: You also said that if there were problems you would give a direction. I assume you would indicate how the problem should be addressed, did I understand you correctly or what?

MR MAKHANYE: Yes.

CHAIRPERSON: Was that another part of your duties within SACO?

MR MAKHANYE: Yes.

CHAIRPERSON: Yes. Mr Motloung?

MR MOTLOUNG: Thank you, Mr Chairman.

Now Mr Makhanye, can you come closer then to what happened on this day, the 4th of May 1990, at that tavern.

MR MAKHANYE: When we were seated right in the tavern, there were comrades and there was a particular programme that the comrades were presenting. As you may be aware that the police were no longer residing in the township, but in town, so they would make sure that people don't get into taverns armed. So there were comrades who were placed in strategic positions to search all the people who wanted to gain entry to the tavern, to see if they were armed or not. And it so happened that I was already in the tavern. I think I arrived there around eight, towards nine.

As we were no inside and seated in the tavern, it was discovered that the late got inside and he refused to be searched ...(intervention)

MR MOTLOUNG: Now Mr Makhanye, you are using the words "it was discovered", you mean that you did not see this yourself, when he went in and refused to be searched?

MR MAKHANYE: No, I did not see that because I was already inside and sitting down having my soft drink. Now one comrade approached me and said ...(indistinct) comrade by the name of Sifiso Mabusa, the name of the comrade that approached me.

And after he told me that I said "No, leave it to me, I will stand up and go and speak to him". And Mr Manana had been at the counter their and purchasing his beers and when they came back, he was sitting at the table right in front of ours. And as I was standing up to go towards him to talk to him, that I'd heard that during the day he refused to be checked or to be searched by the comrades and now again he is repeating the same act.

And when I got to him I found him to be standing up approaching the rest rooms. I excused myself and ...(intervention)

ADV DE JAGER: Sorry, could you kindly repeat the last sentence. You went up to him to speak to him, when you got there what happened then?

MR MAKHANYE: Before I even got to him he stood up to be going to the rest room and I said to him "Excuse me", then he stopped because he was walking towards the toilet or restaurant and I asked him as to what happened during the day for him not to be co-operative with the comrades. He did not respond to my question, instead he drew out his gun and started shooting and he attempted to shoot me.

I managed to retreat and the shot missed me and the rest of the other people now stood up and I held his one hand that had the firearm and instead all the bullets, those that were discharged, were shooting in the air towards the ceiling. One comrade managed to disarm him, comrade Mkuzu, by the name of comrade Mkuzu, and was able to take the weapon.

And when he was attempting to run away, some threw bottles and they pelted other stones to him and when I got out I found him dropped, he was lying on the ground, and left him and went to my house. The following day I learnt he passed away.

MR MOTLOUNG: Okay. Mr Makhanye ...(intervention)

ADV DE JAGER: Sorry, it's not clear to me, did he run out of the tavern and was he attacked outside the tavern with bottles and stones?

MR MAKHANYE: Inside the tavern, that's where he started shooting and the whole thing ensued right inside the tavern.

ADV DE JAGER: Did they throw stones inside the tavern?

MR MAKHANYE: No. I beg your pardon, the stones were not pelted to him, but the bottles, pieces of bottles and other bottles were there and the knives were used as well to stab him inside the tavern.

ADV DE JAGER: And where were you at the time?

MR MAKHANYE: When he let go of the firearm and comrade took the firearm, I therefore left him alone and went outside to go home.

ADV BOSMAN: At were you searching for when they entered the tavern?

MR MAKHANYE: We were searching for weapons.

ADV BOSMAN: But what do you mean under "weapons", were you searching for knives as well?

MR MAKHANYE: Yes.

ADV BOSMAN: So weren't the knives taken from these people who had got into the tavern?

MR MAKHANYE: You see the comrades would take the knives at the door on entry, and when that happened I instructed some of the comrades - no, in fact, the other comrades informed the other part of the group of comrades and they used the same knives that had been confiscated from there.

In fact, what will happen, those knives will be destroyed after they had been taken or after the knives had been confiscated from the owners, but when that happened they used the same knives that had been taken from the people.

ADV BOSMAN: I'm afraid I'm a little confused now. Did the comrades who searched you at the entrance, did they take the knives and put them somewhere and then hand it back to the people when the fight ensued or ...? I'm not quite clear on that at all.

MR MAKHANYE: You see what would happen is that they will confiscate all those knives and put them in some back, the following day they would go and burn those knives, to destroy those knives. It will not be taken back, or the knives will not be taken back to their rightful owners.

ADV BOSMAN: And there was stabbing in the tavern if I understand you correctly, where did those knives then come from? The people who stabbed, where did they get the knives if they had been taken from them?

MR MAKHANYE: You see if I explain further, when the fight went on the comrades upon seeing that he started during the day, being problematic to them, they took out some of the knives there and distributed them amongst the members, the comrades. I mean the very same knives that had been confiscated from the people and put into the bag, they used the same knives. They were taken out of the bags and distributed amongst the comrades.

ADV BOSMAN: But now I'm really confused. If people were searching for arms and in the same time distributing arms, what was the purpose of the search then? Were only certain people searched?

CHAIRPERSON: Or perhaps to avoid a misunderstanding. Are you saying that in the normal course they took weapons from these people that came into the tavern, knives and so on, they put it into a bag, the comrades ...

MR MAKHANYE: Yes.

CHAIRPERSON: ... and when this trouble with the deceased started, the comrades attacked the deceased and they took those knives that they confiscated out of the bag and they stabbed him with those knives. So the comrades were the people who attacked the deceased?

MR MAKHANYE: Yes, that's what happened.

ADV BOSMAN: Thank you.

MR MOTLOUNG: Thank you, Mr Chair.

Now Mr Makhanye, in your words, just to make it more clear, this confrontation between yourself and the deceased, at the core of it, what was it?

MR MAKHANYE: The core of this confrontation was about enquiring from him what the motivation was regarding his not being co-operative with the comrades, especially during the day he had refused to be searched by the comrades and now this thing happens again.

MR MOTLOUNG: When you say "during the day he had refused to be searched", do you mean at the tavern or do you mean, where?

MR MAKHANYE: I don't quite understand.

MR MOTLOUNG: What is it that he had done during the day?

MR MAKHANYE: During the day what happened was, he went to town and purchased something there and when he came back he refused for the comrades to search him at the cross-roads right at the entrance of the Sivukile township.

CHAIRPERSON: Mr Makhanye, perhaps also to assist again, for the sake of not taking too long. Was the situation, and we've heard a lot of evidence about this kind of thing, was the situation that the comrades were enforcing this consumer boycott, by controlling the access into the township, almost like a roadblock and they would search people who would come from town, to ascertain whether those people had any goods, merchandise, that they could have possibly bought in breach of the ...(intervention)

MR MAKHANYE: Yes.

CHAIRPERSON: So the deceased was coming from town and they blocked him at the roadblock and they tried to search him and then he took out a gun, he didn't allow the comrades at the roadblock to search him?

MR MAKHANYE: Yes.

CHAIRPERSON: Is that what happened?

MR MAKHANYE: Yes, that is what happened.

CHAIRPERSON: And that was the problem that was reported to you when you came back home from work on the Friday afternoon.

MR MAKHANYE: Yes.

CHAIRPERSON: Very well. Mr Motloung.

MR MOTLOUNG: Thank you, Mr Chairman. Mr Chairman, I have no further questions.

CHAIRPERSON: Thank you. Mr Nyawuza, any questions?

CROSS-EXAMINATION BY MR NYAWUZA: Yes, Mr Chairman.

Mr Makhanye, if I refer you to page 22 of the record, the affidavit that you made at Ermelo, the second paragraph from the bottom if you go up, you state ...(intervention)

ADV DE JAGER: Sorry, page 32 is ...(intervention)

MR NYAWUZA: Page 22, Mr Chairman.

ADV DE JAGER: Oh page 22.

MR NYAWUZA: His affidavit.

ADV DE JAGER: Okay, thank you.

MR NYAWUZA: The second paragraph from the bottom. Mr Makhanye, you stated in that paragraph that -

What following day are you talking about in this affidavit, Mr Makhanye?

CHAIRPERSON: Mr Nyawuza, also again for the sake of progress, you can repeat your question if you want you if it can assist you, but perhaps just for your information, it seems as if, if you look at the pervious paragraph, the third one from the bottom, there was some meeting after the incidents that the deponent refers to, where there was a decision.

MR NYAWUZA: Okay.

CHAIRPERSON: And then he says "the next day". So it seems as if it's the day after that meeting. Have you got that?

MR NYAWUZA: Yes, no I get ...

CHAIRPERSON: Do you want to take it from there?

MR NYAWUZA: No, I'll rephrase my question, thank you.

Mr Makhanye, you stated before this Commission the relationship between yourself and two police officers, being Mr Ghama and the deceased, was okay, is that correct?

MR MAKHANYE: Were they police?

MR NYAWUZA: Ja, Mr Ghama and the deceased were police officers, and you have testified before this hearing that they were, the relationship between yourself and them was okay. Do you confirm that?

MR MAKHANYE: Yes.

MR NYAWUZA: And on the day in question, you've stated before this hearing that the deceased was from the counter, he had bought some beers, for want of a better word, and he was going to give the beers apparently to his friend. What happened to the beers? Did you attack him, did you approach him whilst he had the beers in his hand or he took the beers to the table where he was seated and then went to the toilet? What actually happened?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: How far was your table ...(intervention)

ADV DE JAGER: Sorry, we didn't receive the translation.

CHAIRPERSON: Just repeat the previous answer please.

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: My question was, how far was your table from the deceased' table?

CHAIRPERSON: No, no, just - alright, what Mr Nyawuza wanted to hear, you said that at one stage the deceased was buying something at the counter, presumably beers, now did he first take the beers to his table and then got up to go towards the toilet, or what happened? What happened to those beers?

MR MAKHANYE: He had already placed his beers on the table and it seemed to me he was now going to the toilet and that was at that point when I said to him "Excuse me, I'd like to talk to you".

MR NYAWUZA: And when you approached him he without any provocation from your side, took out a firearm and fired a shot at you. That is according to your testimony. Is that correct?

MR MAKHANYE: Yes, upon speaking to him he therefore drew out his firearm and shot at me.

MR NYAWUZA: Mr Makhanye, if I hear you correctly the deceased had come from the counter, he put the beers down and he went in the direction of the toilet. In what direction? Did he have to pass by your table or was the toilet away from your table?

MR MAKHANYE: His table was right in front. We were behind and the toilet was right in front. He was standing from his table and approaching, going towards the toilet and it was at that point when I stood up, also approaching him and I requested to speak to him.

MR NYAWUZA: Mr Makhanye, you would agree with me if I state it to you that the deceased had had his back against you?

MR MAKHANYE: Yes, when I said to him "Excuse me", he stood up. Yes, his back was against me, he was going the other - I was coming from the opposite direction.

MR MOTLOUNG: I'm sorry, Mr Chairman, I seem to pick up that the translation is not correct. Can I suggest that he repeats what he said and it be retranslated.

CHAIRPERSON: Yes. Won't you please just tell us, the question was "When the deceased was approaching the toilet, was his back turned towards you?"

MR MAKHANYE: No, he was not facing me. I said to him "Excuse me", then he stood still as I had ...(indistinct) to him to speak to him.

CHAIRPERSON: Was he facing - I'm sorry, I didn't hear the interpreter perhaps correctly. Just explain to us, just simply, was he facing you, facing in your direction or was his back turned towards you or what? I don't know how important this is, but in any case.

MR MAKHANYE: When we were talking - we were facing each other face to face when we were talking. When I said "Excuse me", he stood and looked at me and he waited until I got to him and I asked him and then he drew out his firearm. We were facing each other.

CHAIRPERSON: Yes, well that's more clear. Mr Nyawuza, thank you.

MR MAKHANYE: Yes, we were facing each other when he was shooting.

MR NYAWUZA: And did he afford you an opportunity to ask him what you wanted to ask him?

MR MAKHANYE: Yes, I spoke to him but he did not respond, instead he took out his firearm. Instead of him responding in words to me, he took out his firearm.

MR NYAWUZA: You've testified before this hearing that earlier on the day he took out his firearm at the entrance to Sivukile township and wanted to shoot your comrades. You were told by somebody else, that is what you said. Is that correct?

MR MAKHANYE: Yes.

MR NYAWUZA: And then when it was daylight when he could have done it, he didn't shoot, is that correct?

MR MAKHANYE: Yes, he did not shoot. They fled, the comrades that is. He took out his firearm and they ran away, the comrades.

MR NYAWUZA: And then you said - if I were to rephrase my question, Mr Makhanye, Mr Makhanye, isn't it normal practice in taverns, even in pubs in town, that when people get into pubs they are searched, it is not specifically something that has got to do with politics, it's for safety of the patrons who come into the pubs, is that correct?

MR MAKHANYE: Yes, that is normal practice.

MR NYAWUZA: And Mr Makhanye, if I heard your testimony correctly, you told this hearing that the deceased pulled out his firearm, a shot went out, you grabbed his arm, you battled for the firearm until it fell to the ground and the other comrades were approaching, and when the firearm fell to the ground you ran away, is that correct? You went out.

MR MAKHANYE: Yes, that is so.

MR NYAWUZA: Mr Makhanye, what was then the importance of you disarming and after disarming him running away instead of taking action?

MR MAKHANYE: It was not my intention to fight him. As soon as I realised that he had no firearm in his hand, I left. My intention wasn't necessarily to fight him. I wasn't fighting with him in the first place.

MR NYAWUZA: Mr Makhanye, if I were to take you back to the day of your trial and Evander Supreme Court, you were asked numerously by the presiding judge there as to what organisation you belonged to and your response was that you did not belong to any political organisation. And if I'm to refer this hearing - I will go through my notes, on page 177, line 20, the learned judge in passing judgment on the merits referred to having spoken to you about you being a member and you said - he is saying, if I am quote him verbatim -

Why did you deny an alliance to a political party then and you come to this hearing today and state that you were a member, seven years after the hearing?

CHAIRPERSON: Yes, Mr Nyawuza, can I just check with you. The judgment deals with accused number 1 it seems, line 17 -

...(intervention)

MR NYAWUZA: As it pleases the hearing, I realise that that question is meant for applicant number one. I'll retract it then.

MR NYAWUZA: Mr Makhanye, did you have any membership of the said political organisation that you state to have been a member of, or were you just an ordinary supporter?

MR MAKHANYE: I am a full fledged of African National Congress.

MR NYAWUZA: And you stated before this hearing that the whole incident happened at a tavern. Had the deceased not pitched up at the tavern, would he also have had the same ending, would you have killed him at any event that could have presented itself?

ADV DE JAGER: Sorry, I think we should perhaps get clarity about this. You put it now to him "Would you have killed him?", but according to his evidence he's done nothing to kill the deceased. Did he in fact do anything in the process of killing the deceased, or did he associate with the killing of the deceased?

MR NYAWUZA: I'll put it into perspective, thank you.

Mr Makhanye, you've stated before this hearing that amongst your duties was to give direction to SACO comrades and discipline. If I were to say your portfolio within SACO was of high profile and here is an incident occurring before yourself, the deceased takes out a firearm, you disarm him and after disarming him, wouldn't it have been more of a responsibility on your part to have stepped in and spoken to your comrades, as you said you were giving discipline and direction to them, to ask them not to stab the deceased and hit him with bottles? Was there no other way that you could have addressed this issue?

MR MAKHANYE: It was difficult now, Chairperson, because the place had been rendered ungovernable already, so there was no order at all. I too was basically the survivor of the ...(indistinct), I had to find my way out myself and people were no longer governable and there were so many in number, you could not tell who is in the offensive and who is in the defensive, you could just not tell. So there was no way I could give instructions towards that effect because the place was already rendered ungovernable.

MR NYAWUZA: Mr Makhanye, this tavern, why did you go to this tavern on this particular day, what was the rush now behind going there?

MR MAKHANYE: I was going there to relax. There wasn't anything much provoking me to go there, except to go and relax to have my drink.

MR NYAWUZA: And incidentally, there's about 60 people amongst whom there are comrades as well in this tavern, is that so?

MR MAKHANYE: Yes, that was as you have said. The place was packed, the majority of which were the comrades as well.

MR NYAWUZA: Mr Makhanye, did anybody you know, like you stated before this hearing that you were going to talk to this gentleman about his behaviour during the day where he refused to be searched and upon entering the tavern, he refused to be searched. Was this ever - who gave you instructions to do these searched? Did anybody from above your portfolio give you these instructions?

MR MAKHANYE: No, no-one as such, but it was an opinion from the comrades' side because the security was no longer in place in the townships.

MR NYAWUZA: When you say it was the comrades, was this taken at a mass meeting or was this taken at a meeting of the leadership of SACO?

MR MAKHANYE: This happened at the comrades meeting. The Chairman was in prison at the time, so it was suggested by the comrades at the meeting, at their meeting, to implement this.

MR NYAWUZA: Did you at any stage at the mass meeting, as you in the plural, did you take any specific action as to what you do with anybody who transgressed what you thought to be the correct way in which these so-called white businesses should be opened to all?

MR MAKHANYE: No, we did not take any particular action as such, or a decision as such in regard to such actions, that anybody who defies the orders should be treated in a particular way, no, that much we had not gone to.

MR NYAWUZA: So when this fracas, you know where this guy was attacked, didn't you as part of the people who were in the tavern, foresee that it might end up in his death, because you stated before this hearing that knives were given to other comrades, didn't you foresee that it will lead to his death?

MR MAKHANYE: Well I foresaw that but there was not any other way I could help, but I could tell that he was going to be fatally injured. I thought that that was what was going to happen instead, that he was going to be brutally and fatally injured more than anything.

MR NYAWUZA: You didn't think about death, did you?

MR MAKHANYE: No, that did not cross my mind, I just thought that the following day I will hear the news that he's been fatally injured, not that he will be killed.

ADV DE JAGER: ...(indistinct)

INTERPRETER: The speaker's microphone is not activated.

ADV DE JAGER: If he testifies that he foresaw that he would be fatally injured, doesn't he in fact say that he would be killed?

MR NYAWUZA: I think it confirms that.

ADV DE JAGER: Ja, but then you put it to him, you say you didn't foresee that he would be killed.

MR NYAWUZA: I thought we were past that question. Thank you for that.

Mr Makhanye, do you think the death of this police officer did anything to your struggle towards ...(indistinct) of all at Morgenzon?

MR MAKHANYE: May you please explain that question, it's not quite clear to me.

MR NYAWUZA: You are saying this guy refused to be searched, he went to a tavern, he was killed and you as comrades were working towards a furtherance of a certain political objective, if I were to put it like that, and his reluctance to listen to whatever you wanted the community to adhere to, ended up in his death, my question is, do you think that his death did your political objective struggle any good?

MR MAKHANYE: Well no, I don't think like that or I don't think so, but I do think however that that brought some misunderstanding or some bad blood between us and the Mananas, the community as well.

MR NYAWUZA: If you say that brought bad blood you know, between yourselves and the community and the Mananas, are you saying the community didn't approve of your actions on the 4th of May 1990, or what? Can you please clarify that.

MR MAKHANYE: Well with regards to the community, they were indeed in support of the boycott, but not to this effect, that one of us should be killed or part of the community members would be killed as a result of that.

MR NYAWUZA: So are you saying your mandate from the community was to see to it that people adhere to the boycott, but you shouldn't take the law into your hands like it happened on this day, not particularly you but the comrades that were a part of this killing?

MR MAKHANYE: The community was not at all in support of killing, but the boycott. That anybody should be killed was not part of the community's objective or intention.

MR NYAWUZA: Mr Makhanye, if I were to take you back to the ...(indistinct) of the firearm incident, when this gentleman you stopped him, you said "Excuse me", he stopped, how big - you know there are these lines in this hearing, there are these lines, can you tell us where were you, were you in the passage or were you in some big area, open like some dance floor, because this was a tavern? Where were you?

MR MAKHANYE: Well where we were standing, it was an open space. There were tables around us at any rate and there were also passages in-between the tables, but where we were particularly standing on that day at that time, it was an open space like here, surrounded by the chairs and tables and people were sitting down and having their drinks, and up and down as well as you may expect because it was a tavern and there were many.

MR NYAWUZA: Mr Makhanye, during the trial there was testimony to the effect that you grabbed the deceased from behind, held his arms and the other comrades stepped in to stab him. What is your comment on that?

MR MAKHANYE: No, it did not necessarily happen that way. I was talking to him and he shot subsequently, there was no way I grabbed, there was no time when I grabbed him from the back as it may have been suggested.

MR NYAWUZA: And were there people behind him?

MR MAKHANYE: There were many people around us, all corners, left right and centre. There were people around us and many of them too.

MR NYAWUZA: Where was the toilet, was the toilet outside or was it inside the tavern?

MR MAKHANYE: It was inside the tavern, right inside, but you obviously have to stand up and walk a few steps to the toilet.

MR NYAWUZA: We are told that about 30 to 60 people were present in this tavern. If you were to measure it against the room that we are in, how big would you say it was?

MR MAKHANYE: It would be the square metre of this house.

INTERPRETER: As he demonstrates it will range from the opposite towards my back and he estimated that to be a square metre.

MR NYAWUZA: I've got no further questions, Mr Chairman.

CROSS-EXAMINATION BY MS LOCKHAT: Thank you, Chairperson.

Mr Makhanye, can you tell me how long were you a member of SACO?

MR MAKHANYE: SACO was formed in 1990, I think around February or March.

Now I just want to refer you - that is your version, I just want to refer you to page 16 of Joseph's statement and I just want to know from you which version is correct. That's at the first paragraph -

And I just want to clarify with you, which version is correct here. Is it a misinterpretation that there was an argument with somebody else or was it because he refused to be searched? Can you just clarify that for me.

Let me just clarify it again for you, Jabulani. Your brother states that there was an argument which the deceased had with someone from Newcastle and it seems that that is why the incident had occurred, but according to your version it seems that he refused to be searched and therefore you approached him and therefore this whole incident occurred. So can you just clarify for us as to, do you still maintain that position, or is your brother mistaken?

MR MAKHANYE: Well I took a look here, I think the way my brother has explained and the opinion he maintains and the way he looked at this whole thing, I think he thought when he saw Bheki from Newcastle jumping towards us, he could have thought that Bheki and the late were fighting or had a conflict. This is the way it crosses my mind.

I don't think he saw that the whole thing was between who and who and that who was talking to who, because then the comrades just were alerted immediately after the heard a gunshot. But the person who reported to me, I - what happened was that the man I knew very well, the late that is, and I knew that he understands me very well each time we have a discussion, this is why I said I will approach him and talk to him. But the way my brother explains here it seems to me when he realised that this was happening and heard the gunshot and saw the other man from Newcastle jumping towards us, because there was this particular man from Newcastle as well who was there, who was present, Bheki Thambo his name is, he saw him I think and he thought that the deceased or the late was fighting or having a conflict with him. This is how it seems to me.

MS LOCKHAT: Okay. Then I just want to take you to the version that was presented by Vusi Ghama in your trial. I want to refer to the Committee, at page 165 of the bundle. He gives quite a long statement relating to Jabulani Makhanye's role in this incident and I just want to read it into the record. This is what Vusi Ghama had stated and this is what the judge had said was the version of Vusi -

...(intervention)

ADV DE JAGER: Sorry, I don't know, would you like him to answer for instance, on this sentence, because otherwise you're going to put a whole two pages to him and how would he answer on that?

MS LOCKHAT: Okay. I just want to put it to you, Mr Makhanye, Mr Vusi Ghama, at page 165 it states that he said you held the deceased whilst your brother stabbed him with a knife. What is your comment in relation to that?

MR MAKHANYE: I don't agree with that, I completely disagree.

MS LOCKHAT: And he says after that as well ...(intervention)

ADV DE JAGER: Sorry, we don't hear the answer, the interpreter doesn't give us an answer. I don't know what's the trouble.

INTERPRETER: Well the interpreter did give an answer.

CHAIRPERSON: He said he disagrees with this.

INTERPRETER: Yes, he completely disagrees.

CHAIRPERSON: Oh, alright.

MS LOCKHAT: And then just further down, just below paragraph 10, on the very same page, he says that the deceased only drew his weapon after he was stabbed. Can you comment on that? You said to us that when you approached him, when you approached him and you wanted to speak to him he drew out his weapon and here Mr Ghama is saying that only after he was stabbed he actually drew his weapon. Can you comment on that?

MR MAKHANYE: I completely disagree with that as well because the whole problem, where the whole problem emanated from was when I had put to him what I put to him and instead of responding he threw out his firearm, the version I laid to you earlier on.

MS LOCKHAT: And he also said there was a "stoeiery" between yourself and the deceased.

INTERPRETER: Please repeat that question, Ms Lockhat.

MS LOCKHAT: Mr Ghama also said that there was a scuffle between yourself and the deceased.

MR MAKHANYE: There wasn't anything like that, not even once before.

ADV DE JAGER: You say "not even once before". Now what do you want to tell us, was there a scuffle afterwards?

MR MAKHANYE: We were talking quite well, there wasn't any scuffle. We were in good terms with this man.

ADV DE JAGER: Ja, but that evening you weren't in such good terms because he tried to shoot you, according to your evidence, there was - at that stage you were in a quarrel at least.

MR MAKHANYE: We did not have any argument as such or any scuffle for that matter. As I was talking to him in a very soft voice, in a very good manner, instead of responding to that he took out his firearm, he shot subsequently and the first shot missed me. And we had not had any altercation in the past, nor any conflict. I was only enquiring about the co-operation between him and the comrades and instead he shot, as I explained earlier on.

MS LOCKHAT: Mr Jabulani, you see I just have one problem in relation to all the statements presented to the police and everybody placing you on the scene of the incident. I want to put it to you that you are sticking to the same story that you presented at your Court trial, because on page 158 of the judgment, at paragraph 2.3, I will start at 2.2 where you said you had soft drinks with some friends -

The one thing which is consistent in your statement now is that -

That you're sticking to the same version that you did really nothing to the deceased and you approached him, but after that you ran away. And I want to put it to you that there's just so many statements in relation to your actual participation in that event, which is contrary to your version. Can you comment on that?

MR MAKHANYE: Yes, I completely disagree with the statements. I gave or submitted my application to give you the truth as to where it all started with regard to this incident. Well as for the people who've handed these statements as to where and how it started, nobody knows except for myself and the deceased because it was myself or I who spoke to him.

And at the Court of law I do agree that I did not tell the truth as it is or as it was because I was trying to avoid, as we may well be aware that at the time one would have been easily sentenced, given a very strong and vehement sentence because the government of the day, once they learn that you are a political member or you are affiliated with some political organisation, then there is no way you cannot be sentenced in a very strong way. So I was trying to avoid that. This is why I gave the version I gave at the Court of law.

ADV DE JAGER: Yes, I can understand that, but I've got trouble with what you're telling me today because I can't see anything that you've done wrong. You've addressed this man, he tried to shoot at you, you grabbed his hand, the weapon fell on the ground and you walked out. What did you do that was wrong? Did you kill this man? Did you participate in the killing?

MR MAKHANYE: Well I did not participate. You see once the firearm dropped, well I left, because it was not my intention to kill this person and as soon as the other comrade got hold of the firearm I left the house and disappeared, I went to my home. Of course there was no role I played in the assaulting of this man or revenging in any way.

ADV DE JAGER: Did you leave before they started stabbing him?

MR MAKHANYE: No. You see when I held his hand others were busy assaulting him from behind with bottles, but I was battling with the hand that had the firearm and as soon as it dropped down and the other comrade got hold of it I left, I did not bother to stay and witness any further developments.

ADV DE JAGER: So you didn't see any stabbing?

MR MAKHANYE: I did see that he was being stabbed from behind ...(intervention)

ADV DE JAGER: With bottles or with knives?

MR MAKHANYE: They used bottles, that's what I saw mostly, and the knife I saw slightly, but the most I've seen was the bottles that were being used stabbing him. I did not particularly see as to who was doing this. It was so full in the tavern, it was not easy for me to even identify ...(intervention)

ADV DE JAGER: And you didn't assist the persons who attacked him in any way, did you?

MR MAKHANYE: No, I did not. As soon as the firearm dropped and I realised the one comrade got hold of the gun I thought they will let go because there was not any further gunshots. I then left. And I was going out I did not see the very comrade, I went down to my house.

ADV DE JAGER: But weren't there at least three or four gunshots?

MR MAKHANYE: Yes, I was still holding his hand and there were gunshots heard. I think it was about three or four times, because there was one time when the ceiling was shot and the window as well, still battling too with the hand of the firearm because he was insisting to point at me with the firearm, but I was fighting back that he should continually point away from me.

CHAIRPERSON: When the deceased was being attacked from behind, didn't he try to stop those people from attacking him?

MR MAKHANYE: No, he did not because I kept hold of his hand and as soon as the firearm dropped and one other comrade took it, I did not see what happened thereafter. Whether he turned around to look at the ones who were behind him, I don't know. I can't tell if he ever attempted to fight them, I mean the ones who were fighting from behind. I can't tell because I did not wait long to see even that, I left immediately.

CHAIRPERSON: So when you were holding him it was impossible for him to turn around?

MR MAKHANYE: No, it wasn't easy for him to turn around because we was struggling over the firearm and I kept hold of his hand. There was no way he could fight the ones behind him because his intention and what he intended was to point the firearm at me, so I was the key more than the others behind him, because he wanted to get the firearm pointed at me and he was struggling with that more than the ones at the back.

CHAIRPERSON: Yes, but even if he wanted to stop the attack from behind, you were holding onto him, not so, and it wasn't possible for him to do that?

MR MAKHANYE: Yes.

CHAIRPERSON: You didn't have a knife, in fact you were not attacking him. You were not attacking him, you were just holding onto his hand.

MR MAKHANYE: Yes.

CHAIRPERSON: The others at the back, the others behind him, they were actually attacking him, stabbing him and so on. So they would have been a bigger danger to him than what you were, not so?

MR MAKHANYE: Yes, that is correct.

CHAIRPERSON: And you saw this attack on the deceased, you saw them stabbing him and attacking him with the bottles and so on.

MR MAKHANYE: Yes.

CHAIRPERSON: But you kept on holding him, which stopped him from being able to turn around.

MR MAKHANYE: Well yes, also I was trying to avoid this firearm pointing at me because I knew what was next. I was also fighting for my life as well, because it could have been that if I let go of the hand, then I will be shot. So I was fighting death myself.

CHAIRPERSON: Yes. Ms Lockhat?

MS LOCKHAT: Thank you, Chairperson.

Just one other question. Did your brother Joseph stab the deceased?

MR MAKHANYE: Oh well he told me that, but I did not see him stabbing, but that's what he told me after I'd stated to him. After we were talking about this, then he stated to me that he indeed stabbed him as well.

MS LOCKHAT: I just want to refer you to Exhibit A, at paragraph 5 where you state:

It seems there that you actually - it looks as if you saw everything, that you witnessed everything. Can you comment on that?

MR MAKHANYE: Well as soon as I'd heard that the late passed away, the following day, then I enquired, I wanted to establish the comrades who participated to this because that now was a case. And I found out that a few other comrades, Bheki and Joseph, agreed that they did stab him because of some reasons. And I wrote in my statement as such, that there were others, they formed part of the group that stabbed. Now it was their confirmation, this is how they appear in my statement, that Joseph said he stabbed him as well as Bheki said he hit him with a bottle.

MS LOCKHAT: I just want to ask you one last question. Would you say that the deceased was killed because he was a policeman in that area and that he no longer co-operated with the comrades in that area, or would you say that because of that night at the tavern there were these disruptions and that was the sole reason why he was killed?

MR MAKHANYE: I may or I will say that he was killed because he was no longer co-operative with the comrades, not necessarily because he was policeman because it was quite some time that he was a policeman and residing in the township. And the police had left the township, except for him and Ghama, because they were well co-operative with us or the comrades. Now I will not stand here and say he was killed as a result of him being a policeman.

MS LOCKHAT: I just want to refer you to page 166 of the judgment, where Mr Ghama, the judge asked him questions relating to political motive and in the last paragraph Ghama says:

That's in relation to what he states which could have been one of the reasons why he was killed.

I also just want to refer the Committee to a statement made by a victim, Mr Simon Manana ...(intervention)

MR MOTLOUNG: Mr Chairman, will all due respect to my learned friend that side, I'm not sure really what is expected of my client. Is he expected to respond?

CHAIRPERSON: Yes, I don't know if you want to put both the sections to him. Perhaps you must just hold that one because she's still looking for that reference.

Mr Makhanye, what is your response to this possible reason that Mr Ghama seemed to have given the Court when this case was heard? Do you want to respond to that?

INTERPRETER: He would like for the interpreter to explain that in Zulu, and earlier on the interpreter had indicated that we don't have Afrikaans interpreters. So each time Ms Lockhat reads in Afrikaans the interpreter keeps quiet.

CHAIRPERSON: Yes, very well. Look just in a nutshell, at the trial, Mr Ghama when he was asked what could possibly have been the motive for the killing, he couldn't think of an immediate motive, but then he said well you know, it is possible that because yourself and your brother and - I'll just get the name of accused number 4, of Mr Sibeko, because you were members of SACO and it was known that SACO didn't want any police in the township, that that is perhaps the reason why this man was attacked. So Ms Lockhat is asking you whether you want to say anything about that, about what Ghama told them.

MR MAKHANYE: Well I don't think so, I don't think it is according to the way Ghama has stated. I did explain explicitly clear earlier on that the policemen had been about six weeks residing in town, no more in the township, except for Mr Manana and Mr Ghama. I did explain that they were residing in the township because they were very co-operative with us and the comrades. I don't think he was killed solely and largely for that reason, that he was a policeman.

CHAIRPERSON: Yes, thank you. And there's another version that Ms Lockhat wants to put to you, I think it's the father of the deceased if I'm not mistaken.

MS LOCKHAT: It's page 29 of the bundle.

CHAIRPERSON: Yes.

MS LOCKHAT: At paragraph 2. I'll state it in English because there's no Afrikaans version.

CHAIRPERSON: Yes, please.

MS LOCKHAT: He says he feels that his son was possibly murdered because he was a policeman and that's what Mr Simon Manana also says. Can you comment on that?

MR MAKHANYE: I don't think so, I still reiterate the fact that I'm very much apologetic about the fact that his son was killed and I still maintain the fact that his son was not necessarily killed because he was a policeman. But Mr Manana together with his son, I lived with them for quite a long time and I belonged to a soccer club that he owned, Mr Manana that is. Ernest Manana was my associate as well in the area, so that I really don't think that Mfanayeto, or the deceased rather, was killed simply because he was a policeman. I'm very much apologetic to the Manana family.

ADV DE JAGER: Sir, do you know Mr Siphiwe Mayayja, the Mayor of Morgenzon?

MR MAKHANYE: Yes, I know him very well.

ADV DE JAGER: He's made an affidavit on page 36 and he's stated that he was also present at the tavern. And on the top of page 37 he states he was also the Chairperson at the time, of SACO, is that right?

MR MAKHANYE: No, he was not one, or a Chairperson, but he was a General Secretary of SACO.

ADV DE JAGER: I see. Yes, that's correct. He states that the quarrel, according to you, erupted because the deceased had bought goods in the town. And then I don't follow because he says:

Was the deceased also a member of ANSIL, or a supporter of ANSIL?

MR MAKHANYE: You mean the late?

ADV DE JAGER: Ja.

MR MAKHANYE: No, he wasn't one, but he was one person who lived in the area and he was very co-operative with the comrades.

ADV DE JAGER: But he was not on the side of the police sort of, he was a supporter of SACO and ANSIL? That's why you allowed him to stay on in the township.

MR MAKHANYE: Well yes, we agreed, we allowed him to live there because he had promised that he will not be a hindrance towards the comrades. And based on that, because we knew him as well from a long time ago, from the township, in the township, we believed him.

ADV DE JAGER: And I think you agree with the statement further on -

MR MAKHANYE: Yes, I do agree with that part of the statement.

ADV DE JAGER: I've still got the problem that I don't quite see what you've done that contributed to the death of the deceased, except for the fact that you asked him why did he buy and that provoked him. But you didn't do anything to, you didn't stab him, you didn't scuffle with him, he didn't hold him so that other people could stab him, and the moment the gun fell you went off, out of the building. So what did wrong did you do?

MR MAKHANYE: Well here, I think the problem about me here is the fact that I held onto his hand, the one that had the firearm. I think that is my scene basically, because I held on the hand continually, the hand that had the firearm.

ADV DE JAGER: Yes. But why did you hold onto that hand, what was the reason, your reason for holding the hand?

MR MAKHANYE: Well it is because - when I think, had it not been for the fact that I held onto his hand so long he could have been in a position to defend himself or even shoot others, myself included.

ADV DE JAGER: But didn't you keep the hand, hold the hand because you were afraid that he would shoot you or other people?

MR MAKHANYE: Well that was my greatest fear.

ADV DE JAGER: And the moment the gun fell to the ground you released his hand and you went out.

MR MAKHANYE: Well I realised that he was now harmless, I could tell that he had no longer the firearm now. I think my scene was the fact that I held onto his hand, that is the problem with me here.

ADV DE JAGER: Wasn't the sin in - your sin in fact, that you held him in order to enable the other people to stab him?

MR MAKHANYE: Well yes, I do agree, even if it can be put that way, but that was not necessarily my intention, that I will hold onto the hand to enable the ones at the back to stab him, but my fear here was that should I let go of the hand, of his arm, then he will shoot me, more than the fact that I'm enabling others behind him to stab him.

ADV BOSMAN: But did you approve of the others stabbing him? Did you feel it was the right thing for them to do?

MR MAKHANYE: Well I don't think it was a good thing, but I was running away from the fact that I will easily be shot at if I let go of the hand. That was my fear, of not wanting to let go of the hand, I would have been shot.

ADV BOSMAN: But it cannot be a good thing to stab another person, but did you feel it was the right thing to do at that time?

MR MAKHANYE: No, I did not see - it was not a good thing to be done, but there was nothing I could do effectively from my side because I was also in my small battling, that I did not want to let go of the hand because I will be shot at.

CHAIRPERSON: Yes. Have you got any further questions, Ms Lockhat?

MS LOCKHAT: No further questions, thank you, Chairperson.

CHAIRPERSON: Yes, thank you. Has the Panel got anything else?

ADV BOSMAN: Nothing thank you.

CHAIRPERSON: Yes, thank you. Any re-examination, Mr Motloung?

RE-EXAMINATION BY MR MOTLOUNG: Thank you, Mr Chairman. If it pleases you, only one aspect.

Mr Makhanye, Mr Vusi Ghama that Ms Lockhat referred to, citing from the documents in front of us, is he the same Mr Ghama that you referred to earlier on as the policeman or one of the policemen who was allowed to stay in the township?

MR MAKHANYE: No, he is not the one, but he is a cousin. This Ghama is not the one I referred to, he's not the policeman, this one.

MR MOTLOUNG: And is there anything in particular that you wish to say regarding that Mr Ghama and this incident, with particular reference to the evidence that he gave there? You will recall you told me something as I was consulting with you here.

MR MAKHANYE: I will respond briefly about Mr Ghama, Vusi that is. When this thing transpired, when we tell the truth, he was not even there. Vusi Ghama, as I left the tavern I met him at the door. Now that means Vusi Ghama, this particular Vusi Ghama, was a person who had some grudges with us because we had a quarrel with him, he was a member of IFP in the area or in the township and we were always addressing controversial matters, to an extent that the police had to intervene between IFP and us.

Now the evidence that he advanced the Court of law was more biased, more than anything it was in favour of him because then we had this grudge more than factual because he did not witness a thing. Thank you.

MR MOTLOUNG: Thank you, Mr Chairman, I have no further questions.

CHAIRPERSON: Yes, thank you, Mr Motloung. Mr Makhanye, you are excused, thank you.

CHAIRPERSON: I assume that we will be calling the other applicant.

MR MOTLOUNG: That is correct, Mr Chairman. Mr Chairman, I don't know how to deal with the situation.

CHAIRPERSON: Yes.

MR MOTLOUNG: I wish to appear at the gents.

CHAIRPERSON: Oh sorry, sorry, we'll just adjourn for a brief moment.

--------------------------------------------------------------------------ON RESUMPTION

JOSEPH MAPALILE MAKHANYE: (sworn states)

CHAIRPERSON: You may be seated. Mr Motloung.

MR MOTLOUNG: Thank you, Mr Chairman. Mr Chairman, once more I wish to refer to, is it Exhibit B?

CHAIRPERSON: Exhibit B, yes.

MR MOTLOUNG: The statement by Mr Makhanye, Joseph Makhanye, and I wish to read it into the record, then he can confirm.

CHAIRPERSON: Yes.

EXAMINATION BY MR MOTLOUNG: In the amnesty application held at JISS Centre, Johannesburg, the application by Joseph Makhanye and Jabulani Makhanye. The following is the affidavit by Joseph Makhanye -

Mr Makhanye, do you confirm that the contents hereof are correct?

MR MAKHANYE: Yes, I do confirm that.

MR MOTLOUNG: Now of particular relevance to you, Mr Makhanye, is that your brother, Jabulani, states in his affidavit that you say you have read, that you were part of a group of people that attacked the deceased, Ernest Mfanayeto Manana, in the tavern and that you are one of the people who stabbed him. Is that correct?

MR MAKHANYE: That is correct.

MR MOTLOUNG: What did you stab the deceased with?

MR MAKHANYE: I stabbed him with a knife.

MR MOTLOUNG: And maybe to make more sense out of our evidence, can you tell this Honourable Committee as to why did you go to the tavern on that particular day.

MR MAKHANYE: I was a member of SACO and we had been requested by the owner of the tavern that because the policemen were no longer in the township, we would be responsible for taking care that there are no knives that are brought into the tavern. That was the reason why I went there.

MR MOTLOUNG: Did you see when the whole altercation started on that day, or as the events that led to the death of the deceased started, did you see it yourself or you only caught the thing while it was already on the go?

MR MAKHANYE: I did see it when it started.

MR MOTLOUNG: Okay. Can you then in your words, explain to this Honourable Committee as to what happened on that day.

MR MAKHANYE: As we were still sitting there I heard a gunshot going off. As I looked around as to what was happening I saw a person falling. We then all stood up and asked why did he shoot at this person. At that point we realised that it was the deceased who was shooting.

I then approached the deceased and as I got to him other people were already holding him and he was continuing to shoot. And as I got to him I drew out my knife, trying to make him a little weaker so that he could stop shooting, and I stabbed him once.

MR MOTLOUNG: Let's talk about the knife. Where did you get this knife from?

MR MAKHANYE: As I explained before, the tavern owner had requested us to take care of the place because the police had been driven out of the township. He requested us to guard the place and therefore I obtained the knife from one of the people we had searched as they entered the tavern.

MR MOTLOUNG: Apparently ...(intervention)

ADV DE JAGER: Sorry. While you're there, why did you then a minute ago tell us "I drew my knife and stabbed him"?

MR MAKHANYE: It was not mine per se, but I had obtained it from one of the people we had searched. It was not my knife originally.

CHAIRPERSON: Yes?

MR MOTLOUNG: Now Mr Makhanye, did you know that - in fact we have already heard evidence about a boycott of white business, that was taking place. Did you know anything about this?

MR MAKHANYE: Yes, I did know about it.

MR MOTLOUNG: Now do you know anything regarding the boycott and the late Mr Ernest Manana?

MR MAKHANYE: Yes, I do know something.

MR MOTLOUNG: What is it that you know?

MR MAKHANYE: There was a boycott which had commenced round about April. That boycott had been agreed upon by all the residents. As time went on we met the deceased at a certain cross-roads and he drew his gun upon us and we fled. And we later caught up with him at the tavern as he was then shooting at the people and we did not know why he was doing that.

MR MOTLOUNG: Now did you at any stage know if your brother, Jabulani, did approach the deceased or whether he was going to approach him at any stage? Can you tell this Committee.

MR MAKHANYE: Yes, I did know about that because he had mentioned to me that he would speak to him about the boycott, because the deceased had agreed that he would remain in the township and cooperate with the community, but it seemed as if he was no longer being co-operative because he was chasing us.

MR MOTLOUNG: Now did you know - when you were inside the tavern, did you know that your brother was now going to approach the deceased at some stage, inside the tavern?

MR MAKHANYE: Yes, I did know that he was going to approach him about the said boycott, as to why he had been chasing us off with a gun.

MR MOTLOUNG: Did you at any stage before your brother could approach the deceased, know or expect that there was going to be a fight?

MR MAKHANYE: I did not know that there was going to be a fight or an altercation.

MR MOTLOUNG: Now talking about you yourself, can you repeat, why do you say that you stabbed the deceased?

MR MAKHANYE: I saw him shooting and even earlier on during that day he had been chasing us and I thought that if I attack him he will cease this shooting, because at that time one comrade had already been shot.

MR MOTLOUNG: Mr Makhanye, indirectly we have already heard evidence that you people did go through a criminal trial in the High Court, former Supreme Court, is that correct?

MR MAKHANYE: I did not understand that question.

MR MOTLOUNG: Is it correct that you were charged for the killing of the late Ernest Manana and you were found guilty and sentenced to imprisonment?

MR MAKHANYE: That is correct.

MR MOTLOUNG: How many years were you sentenced to?

MR MAKHANYE: 12 years.

MR MOTLOUNG: When was this?

MR MAKHANYE: I was sentenced in 1992, on the 31st of January.

MR MOTLOUNG: Can I ask you this question, Mr Makhanye. Didn't you kill, stab the deceased simply because he was a police officer?

MR MAKHANYE: No. I did not stab him for that reason. That is because he had already expressed his intention to cooperate with us, but that did not happen.

MR MOTLOUNG: No further questions, Mr Chairman.

CHAIRPERSON: Thank you, Mr Motloung. Mr Nyawuza, any questions?

CROSS-EXAMINATION BY MR NYAWUZA: Yes, Your Honour, I have.

Mr Makhanye, you're telling this Court that you didn't stab the deceased because he was a police officer, why did you stab him? Can you please take us through that again.

MR MAKHANYE: On that same day, earlier on, the deceased had chased us with a gun and he had chased us whilst we were in pursuit of the boycott that he knew about, but he chased us with his firearm at the Sivukile cross-road. And at the tavern I also witnessed him shooting at a person and on enquiring as to why he was doing that, a number of people, a group of people got hold of him and as I approached nearer I joined the crowd and stabbed him just once, just trying to make him weaker so that he is not able to shoot at other people who in the tavern.

MR NYAWUZA: Do you perhaps know as to who was holding the hand that had the firearm?

MR MAKHANYE: I saw my brother, Jabulani, holding the deceased's hand.

MR NYAWUZA: And your further testimony to this hearing is that there were other people who were holding the deceased, is that correct?

MR MAKHANYE: That is correct, there were a lot of people who were holding him. I would think there were more than 100 people there.

MR NYAWUZA: And you stated before this hearing that your stabbing of the deceased was to weaken him, for want of a better word, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: You weaken somebody who is held by a lot of people, is that correct?

MR MAKHANYE: Please repeat.

MR NYAWUZA: I am saying you are weakening somebody who according to your testimony, is held by a lot of people.

MR MAKHANYE: That's correct.

MR NYAWUZA: The stabbing part of it, when you stabbed him, had he already sustained any injuries or you were the first one to stab him?

MR MAKHANYE: When I arrived there others were already assaulting him and I also stabbed him just once.

MR NYAWUZA: My question is simple and straightforward, by the time you stabbed the deceased had he sustained any injuries, yes or no?

MR MAKHANYE: I did not see whether he had been injured or not, but I did witness people assaulting him.

MR NYAWUZA: What were these people assaulting him with?

MR MAKHANYE: Some were using their bare hands, others were using bottles.

MR NYAWUZA: And is it correct, Mr Makhanye, that if I hit you with a bottle, it breaks and upon breaking you sustain an open wound invariably?

MR MAKHANYE: It is possible that it does break and it is also possible that it does not break and therefore you do not sustain an injury.

MR NYAWUZA: So are you saying when you got into the picture, the stabbing part, the deceased was not bleeding from any wound sustained prior to your stabbing?

MR MAKHANYE: No, I did not witness any injury. When I stabbed him ...(intervention)

MR NYAWUZA: So you were the first person to stab him, is that correct?

MR MAKHANYE: When I approached, people were already assaulting him. I am not sure whether any of them were stabbing him as well.

MR NYAWUZA: Mr Makhanye, the unfortunate part about the Panel and myself is that we were not there, so can you kindly put us in the picture. You are saying this guy was being assaulted and he was assaulted by a lot of people, which would invariably mean that he was being attacked from all angles and you came from somewhere else yourself. Briefly tell us as to how many people, you know, just put us in the picture as to how many people were involved, 10 to 15, or three or one person.

MR MAKHANYE: I can make an estimation of about 10 people who were holding him. That is just an estimation.

MR NYAWUZA: Yes, that is what I requested from you, Mr Makhanye. Mr Makhanye, you said you stabbed him once, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: What happened after the stabbing? You stabbed him and walked away, is that correct?

MR MAKHANYE: After that he ceased shooting and thereafter I also left.

MR NYAWUZA: After you had stabbed him he ceased to shoot?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: I am saying, after you had stabbed the deceased he then stopped shooting.

MR MAKHANYE: Yes, I would put it that way.

MR NYAWUZA: Mr Makhanye, you stated before this hearing that you approached - if I get you correctly, you approached the tavern owner and made suggestions that since the police were out of the township, you as an organisation, SACO, would start now monitoring the carrying of weapons in the township, is that correct? Or was the monitoring of the weapons only at this particular tavern?

CHAIRPERSON: Ja, it seems it could also be that the initiative came from the other side.

MR MAKHANYE: He is the person who approached us, we did not approach him. But he approached us and requested us to be responsible and look after the place.

CHAIRPERSON: And it seems to me in respect of the tavern, that little understanding.

MR NYAWUZA: Okay.

Mr Makhanye, are you in essence telling this hearing that you were - let me rephrase my question, Mr Chairman.

Mr Makhanye, according to what I can get out, or what I can get from your statement is that the police had left the township, that is the first point, the tavern approached your organisation to come and search people who go in and out of this tavern and take whatever weapons they have, apparently for safekeeping, but testimony by your brother is that you burn them the following day, so are you in essence telling this hearing that this guy, the tavern owner approached you because the police had left? Is it because the police were given these duties, were there police at this tavern who used to search patrons who came in and out of this tavern?

MR MAKHANYE: Yes, prior to that there were policemen that were guarding the tavern, but after they had been chased out by the community for their lack of efficiency, their lack of efficiency they were chased out of the township.

MR NYAWUZA: Mr Makhanye, are you telling this hearing that it's part of police work to search patrons who go in and out of taverns?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: Yes, Mr Makhanye.

MR MAKHANYE: That is so.

MR NYAWUZA: So are you saying the police station posted police officers to a particular tavern to go and search patrons in and out? Do you expect us to believe that, Mr Makhanye?

MR MAKHANYE: I do not know whether they were posted from the police station, what I do know is that when we visited the tavern the police would search us.

MR NYAWUZA: Mr Makhanye, it's your testimony further that the deceased was a police officer, is that correct?

MR MAKHANYE: He was a policeman.

MR NYAWUZA: And the deceased was staying at Sivukile township, is that correct as well?

MR MAKHANYE: That's correct.

MR NYAWUZA: Why didn't the tavern owner approach him because he was a police officer, and approach you, why not him?

MR MAKHANYE: The community had chased the police out of the township and I do not know his reasons for doing that, because the deceased was in the township, he remained in the township because he expressed his intention to cooperate with the community. As to why the tavern owner did not approach him is beyond me, I do not know.

MR NYAWUZA: I take cognisance of that. Mr Makhanye, let's now come how the knife got to be in your possession. Your testimony here is that people were searched at the door or at the entrance or, where were you seated during the scuffle when the deceased was being attacked by approximately 10 people?

MR MAKHANYE: I would say I was a bit far, I was seated near a corner.

MR NYAWUZA: How far from the entrance?

INTERPRETER: From where I'm seated the door would be where the applicant is pointing.

MR NYAWUZA: And where was this scuffle taking place, was it taking place along the side or behind where you were seated?

MR MAKHANYE: It was in front.

MR NYAWUZA: And you stood up from where you were seated, is that correct, when you saw the scuffle?

MR MAKHANYE: Yes, I stood up and I asked why is he shooting at this person.

MR NYAWUZA: And you approached the deceased.

MR MAKHANYE: That's correct.

MR NYAWUZA: And you took out a knife and stabbed him, is that correct as well?

MR MAKHANYE: That's correct.

MR NYAWUZA: And the purpose of you people being at this place on this particular day was to search people from coming in with knives at this tavern and you yourself had a knife in your possession. How did you come into the tavern with the knife?

MR MAKHANYE: I was one of the people who had been searching people before and if a knife was found we would take this and burn them ...(intervention)

MR NYAWUZA: Mr Makhanye, I agree wholeheartedly with you, that you'd burn these knives, it's your brother's testimony, my question is very, very simple. Mr Makhanye, the scuffle was happening in front of you, you stood up from where you were seated inside the tavern, approached the deceased, took out a knife and stabbed him, how did you come into the tavern with a knife when your purpose for being at this tavern was to talk about searching people that come into the tavern with knives? How did you come to be in possession of that knife, Mr Makhanye?

MR MAKHANYE: It was one of those knives that we confiscated from the people we searched. We would hold onto these knives and thereafter, later or the following day, burn them.

MR NYAWUZA: Mr Makhanye, your testimony is you take turns in searching people who got into this tavern, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And if I'm to make sense out of your testimony, if there were to be about 10 people who came to this tavern with knives and you took turns in searching these people, about 10 of you would have weapons with you. Mr Makhanye, your brother's testimony is that upon getting a knife from anybody who entered into the tavern, you'd put the knives into a bag. How far true is that, Mr Makhanye?

MR MAKHANYE: Yes, we would put it in a bag.

MR NYAWUZA: Why was your knife not put in the bag, Mr Makhanye?

MR MAKHANYE: It was in the bag.

MR NYAWUZA: Mr Makhanye, are you saying "eskwamene" as in a bag or in your pocket?

MR MAKHANYE: Yes, there was a large bag which we used for storing these knives ...(intervention)

ADV DE JAGER: But the word "eskwamene" ...(intervention)

MR MAKHANYE: After the tavern closes we would take out the knives that were in our possession and put them in that large bag.

ADV DE JAGER: The word "eskwamene", isn't that your pocket, your own pocket, not a bag?

MR MAKHANYE: There was a large bag, but you would not deposit a knife that you found at the same time at that bag. You could keep it with you or drop it at that bag.

ADV DE JAGER: But that bag, the big bag, separate bag, would you call it in your language "eskwamene"?

MR MAKHANYE: Correct.

ADV DE JAGER: Alright ...(indistinct - no microphone)

INTERPRETER: The word is "isikwama" does refer to a bag or a pocket.

MR NYAWUZA: If I am ...(intervention)

CHAIRPERSON: I'm even worse off, what language is it?

INTERPRETER: isiZulu.

CHAIRPERSON: Thank you. Now at least I know something too.

MR NYAWUZA: So Mr Makhanye, are you telling this hearing that you'd searched the patrons who got into this tavern and keep whatever you got from them to yourselves, is that correct, until the tavern is closed?

MR MAKHANYE: It used to happen that sometimes yes, we kept those in our possession or sometimes we would drop them at the bag, but that big bag was not with us, it was the tavern owner who kept it.

MR NYAWUZA: Do you know anything about the refusal by the deceased to be searched when he entered into the tavern?

MR MAKHANYE: Yes, it's something I heard about. It is not something that I witnessed, but it is something that I hear from other people, that the deceased had entered into the tavern with a firearm.

MR NYAWUZA: Mr Makhanye, I'm going to request that you respond to my questions and don't give us a paragraph. My question was very simple ...(intervention)

MR MOTLOUNG: Mr Chairman, with all due respect, I'm deliberately going the full mile to make sure that I interfere as little as possible with the cross-examination by my learned friend, but in all fairness to my client, I don't understand what his problem is, he seems to be getting answers.

CHAIRPERSON: Yes. Well, let's carry on Mr Nyawuza.

MR NYAWUZA: Mr Makhanye, do you anything about the deceased's refusal to be searched when he entered into the tavern?

CHAIRPERSON: Let me explain to you what answer I got here, so perhaps you understand directly what the witness says, I ...(indistinct - intervention)

MR MAKHANYE: I heard that from other comrades, that he had refused. I heard that from the comrades who were at the door.

CHAIRPERSON: That is what I thought I heard too, but perhaps you have heard something different when you listened directly to him.

ADV DE JAGER: Was he already in the tavern when you turned up?

INTERPRETER: Please repeat that.

ADV DE JAGER: Was the deceased in the tavern before you arrived at the tavern? Who arrived first, you or the deceased?

MR MAKHANYE: I arrived first.

ADV DE JAGER: So he came afterwards?

MR MAKHANYE: Yes, he did come afterwards.

ADV DE JAGER: And weren't you searching people at the door when he turned up?

MR MAKHANYE: No, I was not. I had searched some and I had left and it was the other comrades who continued searching the people.

ADV BOSMAN: What did you generally do when a person refused to be searched?

MR MAKHANYE: We would discuss the matter with that person and if he still doesn't want to be searched, we will inform the tavern owner.

ADV BOSMAN: But would he be let into the tavern?

MR MAKHANYE: Ekskuus?

ADV BOSMAN: Would he be let into the tavern?

MR MAKHANYE: No, he would not be permitted to enter the tavern.

ADV BOSMAN: Do you know why the deceased was permitted to go in when he refused, do you know at all?

MR MAKHANYE: No, I do not know.

ADV BOSMAN: Thank you. You may proceed.

MR NYAWUZA: Thank you.

Sir, the questions that have been put to you by the Panel, regarding why was the deceased allowed to get into the tavern with a firearm, what would normally happen, would you - you stated that you'd approach the tavern owner and tell him that Mr X refuses to be searched and we don't allow him, wasn't the same procedure followed in this instance, Mr Makhanye?

MR MAKHANYE: I heard about that when the deceased was already inside. I do not know whether the people who were searching at the door did approach the owner of the tavern, but I heard about it when the deceased was already in the tavern.

MR NYAWUZA: For how long had the deceased been in the tavern until the incident that led to his death, Mr Makhanye? Approximately, I don't expect you to say an hour or ... just approximately.

CHAIRPERSON: Well let's hear. Did you see him arriving at the tavern?

MR MAKHANYE: I saw him when he was already inside.

MR NYAWUZA: Mr Makhanye, is it correct - you made an affidavit that I would wish to refer you to, it's on page 15 of the record. You stated before this hearing that you saw everything that happened, am I misquoting you or not?

MR MAKHANYE: Are you referring to everything that happened at the tavern or what happened to the deceased?

MR NYAWUZA: Ja, everything that happened to the deceased at the tavern.

MR MAKHANYE: Yes, that's what I said.

MR NYAWUZA: In your affidavit on page 16, you talk about the deceased having a squabble with somebody, a quarrel with somebody from Newcastle, where he took out his firearm and shot at this gentleman who he missed and unfortunately shot Nlangamandla, a member of the ANC Youth League. When did this happen?

MR MAKHANYE: When a gunshot went off I saw this person from Newcastle rushing off and I thought that the deceased was shooting at this person from Newcastle, but unfortunately he missed and Nlangamandla was shot.

MR NYAWUZA: You thought he was having a squabble with this guy from Newcastle, is that what you're telling us?

MR MAKHANYE: That is what I thought. That is when I saw this person rushing off, fleeing.

MR NYAWUZA: And you attested thereto, but not in the exact words that you are telling us today here. If I can take the matter further. Mr Makhanye, my question is, you made an affidavit under oath, where you stated -I'll read it in Afrikaans and interpret it to yourself.

If I take you back to this, Mr Makhanye, the deceased bought four beers and he sat with these other guys and drank. Is that your testimony, is that what you're saying in this affidavit?

MR MAKHANYE: Yes, I did see the deceased sitting with some people and they were drinking.

MR NYAWUZA: The Honourable Panel, if I were to lay the basis for my line of questions.

Mr Makhanye, you made an affidavit on the 30th of June 1999, and you attested thereto. Was the said - the said affidavit is written in Afrikaans and my question to you is, was it read to you and interpreted to yourself?

ADV BOSMAN: Can you perhaps refer us to the page number you're referring to.

ADV DE JAGER: I think it's page 16 and the ...(indistinct) was on page - well the original affidavit is hand-written ...(intervention)

MR NYAWUZA: Page 18 to page 21.

ADV DE JAGER: But I think you could simply ask him whether he agrees with what is stage here.

Did the deceased stand up and go to the toilet and did he quarrel with a man from Newcastle on his way to the toilet?

MR MAKHANYE: I saw that person rushing off and I thought that maybe they had been quarrelling, because this person was from the counter and the counter is close to the toilet.

ADV DE JAGER: According to what is stated here, you told the person who took down the statement -

Did you see this happening?

MR MAKHANYE: I did see the firearm being pointed at that person, but the bullet hit another person.

ADV DE JAGER: Yes. And after that, what happened?

MR MAKHANYE: The people who were inside the tavern stood up.

ADV DE JAGER: And they converged on the deceased?

MR MAKHANYE: Yes, some did approach the deceased and they questioned him on why he was shooting at that person.

ADV DE JAGER: So am I correct that according to what you saw and what you're telling us now, the reason for the quarrel was because there was a altercation between the deceased and the man from Newcastle, he shot at the man, missed him and he shot Nlangamandla?

MR MAKHANYE: I saw the gun pointing at that person ...(indistinct) person, and I thought that they were fighting or they were having an altercation.

ADV DE JAGER: Yes. And then the people asked the deceased "Why do you shoot that man?".

MR MAKHANYE: That's true.

ADV DE JAGER: And that started the whole, the quarrel that resulted in the killing of the deceased.

MR MAKHANYE: That's correct.

ADV DE JAGER: So this had nothing to do with politics.

MR MAKHANYE: This entire incident started at the cross-road when he was chasing us with his firearm.

ADV DE JAGER: But if he didn't shoot at that man from Newcastle, would you have killed him that night?

MR MAKHANYE: No.

MR NYAWUZA: Mr Makhanye, to take what the Panel has asked you, further. You've stated in your evidence-in-chief that your reason for standing up, going to the deceased and stabbing him was to weaken him, do you still agree with that?

MR MAKHANYE: That is correct.

MR NYAWUZA: If I were to refer the Honourable Panel to page 173, I think line 25.

CHAIRPERSON: Yes.

MR NYAWUZA: If I were to read it, apparently there is an Afrikaans interpreter, so I can just go ahead and do it in Afrikaans.

CHAIRPERSON: You can't summarise it?

MR LAX: Ja.

CHAIRPERSON: I mean it's already part of the record. What is it that you want to put to the applicant?

MR NYAWUZA: I put it to the applicant that this is what he said even in the trial, that -

So do you agree with what you said in the High Court in your trial?

MR MAKHANYE: Yes, I did state so in Court and I did this because I was trying to protect myself, because at the time ANC activists were sentenced to death.

MR NYAWUZA: That is what your brother said in this Court, that you changed part of your testimony in the High Court, so that you shouldn't be hanged. And so are you saying the lines that I've read to you, you said it to avoid being hanged? - being sentenced to hang, sorry.

MR MAKHANYE: That's correct.

MR NYAWUZA: So then - and your testimony today is that you stabbed the deceased to weaken him, you didn't -

MR MAKHANYE: That's correct.

MR NYAWUZA: Hello? I've got a problem with my headphones.

CHAIRPERSON: Have you got a problem with your headset.

MR NYAWUZA: Yes, I do.

CHAIRPERSON: Have you still got some distance to cover or are you, how far has your questioning progressed?

MR NYAWUZA: I'm going to ask him as regards his political alliance.

CHAIRPERSON: Yes, but will it still take a while, because if so, then I'm going to - if there is no prospect that you will be concluding your questioning in the next few minutes, then I will consider taking the luncheon adjournment at this stage.

MR NYAWUZA: I would agree with the Panel, that we adjourn and come back afterwards.

ADV DE JAGER: Could I enquire. Do you dispute that he was a member of SACO, and that he was a supporter of ANSIL?

MR NYAWUZA: This hearing - the Committee will realise that I dispute his affiliation to SACO, because what they said during their trial is not what they are saying here and there are ...(indistinct) statements from the trial that defeat what they're here for today. Those who not defeat what they're here for today, they dispute and say they did it because they ...(intervention)

CHAIRPERSON: Yes, no, it's fine, you put it in dispute, you don't need to argue it now.

ADV DE JAGER: The only thing, could I point out to you that it's almost common cause that at trials people wouldn't at that time admit that they were members of the ANC or of ANSIL, for different reasons. Maybe they thought they would have a less sympathetic hearing if they would admit that, and different sorts of reasons, that's round about 1990, the time when this happened. Afterwards things changed, but we often find it and there's really nothing - we haven't heard any evidence to counter that sort of reasoning. I don't know whether you accept it or whether you would counter it.

MR NYAWUZA: It's my intention to counter that.

ADV DE JAGER: Okay.

CHAIRPERSON: Yes. We'll adjourn and reconvene at 2 o'clock.

MS LOCKHAT: Please stand.

JOSEPH MAPALILE MAKHANYE: (s.u.o.)

CHAIRPERSON: Which is the next matter on the roll, Ms Lockhat?

MS LOCKHAT: Chairperson, it's the "Armed Robbery, Transvaal Galvanised Company. That's with Daniel Moele. That's the next matter on the roll. We have a victim, Mr van der Walt, in that specific incident and he needs to leave today.

CHAIRPERSON: Yes, we'll more than likely not going to be able to go much beyond that particular matter now. Are there no other of the legal representatives who are still waiting for their matters, who could be excused at this time, whose matters we won't hear in any event? So that it's only those legal representatives who are involved in the Moele matter.

MS LOCKHAT: Yes, it's Adv Daniels that is here, so we won't be dealing with his matter, which is the killing -Mr Ntuli, that's the applicant.

CHAIRPERSON: Alright. Okay, so in that event we can then excuse Mr Daniel at least. We won't get to your matter before the end of the day. Thank you.

Yes, Mr Nyawuza.

MR NYAWUZA: Thank you, Mr Chairman.

Mr Makhanye, you are still under oath, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: Mr Makhanye, where did you stab the deceased, in what part of the body?

MR MAKHANYE: I stabbed him on the back.

INTERPRETER: As the applicant is indicating.

MR NYAWUZA: Mr Makhanye, tell me, had the deceased not shot at Nlangamandla, would this matter have ended up as it did on this particular day? Would he have been killed in any way?

MR MAKHANYE: Nothing would have happened.

MR NYAWUZA: Mr Makhanye, you've on numerous occasions referred this hearing to the issue that you told lies at the trial, at your trial, to avoid being sentenced to death, is that correct?

MR MAKHANYE: That is correct.

MR NYAWUZA: And would you agree with me when I say in our application to this Committee you stated all the facts that you thought were relevant for this hearing?

MR MAKHANYE: Please repeat that.

MR NYAWUZA: Mr Makhanye, you stated that when you appeared in your trial in the High Court, you had to change the correct version of actually what happened on the particular day because if you had told the Court about your alliance to the ANC Youth League and SACO, you would have received a more severe punishment, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And that is why we're here today before this Committee, this is one Committee that you believe is going to listen to your pleas without taking any sides, is that correct? And you came here knowing that whatever you're going to tell the Committee will be the truth and nothing else but the truth, is that correct?

MR MAKHANYE: That's correct.

MR NYAWUZA: And is it correct that there's a form that you completed when you applied for this amnesty whilst in prison?

MR MAKHANYE: Yes, I did fill in a form.

MR NYAWUZA: And during your testimony you have indicated tot his hearing that you stabbed the deceased to weaken him, was it not to revenge against the shooting of your fellow comrade, in your words, Mr Nlangamandla?

MR MAKHANYE: No.

MR NYAWUZA: Are you saying you stabbed to weaken him, is that correct?

MR MAKHANYE: Yes, to stop him from firing any further shots.

MR NYAWUZA: I would wish to refer this Committee to page 4 of the record. At the bottom it's:

Mr Makhanye, I don't know how wrote this, whoever wrote here said:

Are you still saying you didn't stab the deceased to revenge Nlangamandla?

MR MAKHANYE: No.

MR NYAWUZA: "No" what, Mr Makhanye?

MR MAKHANYE: No, it was not a revenge attack and that is not what I said when the form was filled in.

MR NYAWUZA: Mr Makhanye, it's funny, every time something that puts you on the spotlight is said, you disagree with it and say it's not what you said. But your signature appears at the bottom as on page 7 of the record. You attested thereto, Mr Makhanye. Are you saying this was not read and interpreted to you in the language that you understand best?

MR MAKHANYE: There was an interpreter, but it was not read back to me.

MR NYAWUZA: So Mr Makhanye, what was he interpreting if you say there was an interpreter but he did not read this back to you? What is it that he was interpreting?

MR MAKHANYE: That person was interpreting what I was saying to the person writing or filling in the form, but that person did not read it back to me, as to whether he had written what I told them.

ADV DE JAGER: Did you attend school?

MR MAKHANYE: I went up to standard four.

ADV DE JAGER: Can you read English?

MR MAKHANYE: No.

ADV DE JAGER: Can you understand English?

MR MAKHANYE: I can understand a little bit.

ADV DE JAGER: Afrikaans?

MR MAKHANYE: I can understand a bit of Afrikaans as well.

MR NYAWUZA: So Mr Makhanye, are you - I want to put more emphasis on this thing, are you saying this was not a revenge killing, but a political motivated killing?

MR MAKHANYE: That's correct.

MR NYAWUZA: Who ordered you to kill the deceased?

MR MAKHANYE: No-one ordered me.

MR NYAWUZA: Was it within the policies of SACO that people should be killed when they did not adhere to a simple, simple search?

MR MAKHANYE: No.

MR NYAWUZA: Do you agree with me, Mr Makhanye, when I say you exceeded the boundaries, for want of a better word, of the people that you at the time regarded as your leaders, by killing the deceased instead of reprimanding him in a proper way, which was not clearly explained to this hearing today by the first applicant?

Mr Makhanye, my question is, would you agree with me that you exceeded the bounds of, you went beyond the bounds of your policies by killing the deceased?

MR MAKHANYE: That is true, it was not my intention to kill him, but I was just trying to weaken him so that he does not shoot other people as well.

MR NYAWUZA: Mr Makhanye, can you tell this hearing what the death of the deceased here brought to your struggle to have this one door, one shop thing. Did it bring up any fruit, did his killing bring up any fruit?

MR MAKHANYE: No, it did not assist us in any way.

MR NYAWUZA: So this was just a killing in vain?

MR MAKHANYE: No, it did not assist me in any way.

MR NYAWUZA: This was a mistake, Mr Makhanye, the killing of the deceased was a mistake. Are you trying to tell this hearing that?

MR MAKHANYE: It was a mistake, I was just trying to frighten him or weaken him so that he does not shoot anymore people.

MR NYAWUZA: Mr Makhanye, by the time you stood up to stab the deceased, you stated before this hearing that there were about 10 people surrounding him, don't you think these people could have done that, they could have weakened him?

MR MAKHANYE: No, that did not occur to me because I stood up and proceeded to him. I can just say that it did not occur to me.

MR NYAWUZA: Mr Makhanye, I put it to you that you wanted to be seen to be doing something to this police officer, what's your comment on that?

MR MAKHANYE: It was not my intention to attack him, but I just wanted to weaken him. He was shooting at someone and he had done this before, earlier on during the day.

MR NYAWUZA: Mr Makhanye, what's your definition of attacking? If you go to somebody with a knife in your hand and you stab that person, you attack him, so what's your definition of attacking?

MR MAKHANYE: An attack is something that is pre-planned, what happened was not planned.

MR NYAWUZA: Mr Makhanye, did the deceased attack anybody on this day?

MR MAKHANYE: ...(no English interpretation)

MR NYAWUZA: Yes.

MR MAKHANYE: No, I did not hear of anyone, I just saw him shooting Mr Nlangamandla.

MR NYAWUZA: Was his shooting not an attack on - was the shooting of Nlangamandla not as a result of an attack on somebody?

MR MAKHANYE: No.

MR NYAWUZA: No further questions, thank you.

CHAIRPERSON: Thank you, Mr Nyawuza. Ms Lockhat?

MS LOCKHAT: No questions, thank you, Chairperson.

CHAIRPERSON: Thank you. The Panel got any questions?

ADV BOSMAN: No questions, thank you.

CHAIRPERSON: Re-examination?

MR MOTLOUNG: I've got none, thank you, Mr Chairman.

CHAIRPERSON: Mr Makhanye, you're excused, thank you.

CHAIRPERSON: Is there any further evidence that you intend leading, Mr Motloung?

MR MOTLOUNG: No, Mr Chairman, thank you.

CHAIRPERSON: Is that the case for the two applicants?

MR MOTLOUNG: That is the case for the two applicants, Mr Chairman.

CHAIRPERSON: Yes, thank you. Mr Nyawuza, have you got any evidence that you intend leading?

MR NYAWUZA: Yes, Mr Chairperson, the father of the deceased would wish to give testimony as to why he's opposing this amnesty today.

CHAIRPERSON: Yes, is he present?

MR NYAWUZA: He is present today.

CHAIRPERSON: Yes, won't he come forward.

SIMON MANANA: (sworn states)

CHAIRPERSON: You may be seated. Mr Motloung, won't you just switch off your microphone please. And the other one too. Thank you. Yes, Mr Nyawuza.

EXAMINATION BY MR NYAWUZA: Mr Manana, you are quite aware of what you're here for today, is that correct?

MR MANANA: Yes.

MR NYAWUZA: We're opposing an amnesty application for the two guys who have just given testimony, and my understanding is you've been through this hearing all along and you know what they've said. Can you briefly tell this Committee your reasons as regards your opposition to the granting of the amnesty to the two applicants.

MR MANANA: Well yes, I am opposing the application of the two applicants, because what they have advanced to this Commission is not true, rather the evidence that they have advanced to this Commission is not true. And again, they are my children as well. They were growing in front of me and they were part of my soccer team, we are somewhat related with them. And one surprising thing was what they did, killing my son that is. I really don't know what the problem was as such, and I don't even know why they didn't come to me with regards to the problem they had with my child, then tell me the reasons as to ...(intervention)

ADV DE JAGER: Mr Manana, a bit slower, the interpreters should tell us what your telling.

MR MANANA: Well I reiterate the fact that I oppose the application because of the reasons that firstly, they knew me as the father of the deceased, as well as the fact that they were the residents of the area and they grew in front of me and were also members of the soccer team that I had or the club, Red Rovers.

And it surprised me when I heard that they had killed my son. And also, that organisation was not an official organisation, instead it was a gangster. Why do I say this? It is because they were coercing people coercing citizens or the residents of the area to because part of them. They would raid houses and get the children out of their houses, kick the doors and harass people in their respective homes.

I remember this particular house, it was on stand number 14, Johannes Zwane's house that is. They got into this home, broke the windows, assaulted the grandmother in there and looking for a boy called Thabo. They were gangsters by the way, and the community, there was a councillor who was appointed there, working with the community, from the community ...(intervention)

MR NYAWUZA: Mr Manana, what was this councillor's name?

MR MANANA: Johannes Zwane.

MR NYAWUZA: Oh, the guy whose windows were broken, is that so?

MR MANANA: Yes.

MR NYAWUZA: What happened subsequent to the breaking of the windows? Did they give any reasons as to why they were breaking the windows to Mr Johannes Zwane's residence?

MR MANANA: Because he did not want his sons or his children to become part of this SACO organisation, because it was apparent to the community that they were a gangster.

MR NYAWUZA: So when the windows to Mr Zwane's house were broken, they were broken for the reason that Mr Zwane's sons did not want to join SACO, is that so?

MR MANANA: Yes.

MR NYAWUZA: Mr Manana, testimony has been given before this hearing that a certain Vusi Ghama, who gave testimony in the trial, was an IFP member. Can you briefly take this hearing through his involvement in politics, if there is any.

MR MANANA: No, I don't know him. I just know him as an ordinary man, I did not know his political affiliation thereof.

MR NYAWUZA: Did he at any stage - did you ever hear of him addressing a meeting of some political organisation? Or ever since you knew him, at no stage did he belong to any organisation?

MR MANANA: No, I did not.

MR NYAWUZA: So are you in essence disputing what the applicants have said before this hearing today?

MR MANANA: Yes, I dispute every fact because they have not yet told any truth. Whatever they've said is so much evasive, they say this and the other will say this, somehow contradicting each other. You know they have not said anything, they just killed my son just for the sake of killing.

MR NYAWUZA: Mr Manana, when I consulted with you yesterday at Millpark Holiday Inn, you told me something about Gantana ...(intervention)

INTERPRETER: Told me about who?

MR NYAWUZA: Gantana. Can you briefly tell this hearing who Gantana is and how you got to know him.

MR MANANA: This Gantana is Gantana Mishak Mabuza. I know him very well, he is a civilian there or a citizen of Morgenzon. He was also a councillor and people did not want him, they did not want him and then they forced him to resign, but he did not, he was resisting to resign because he had no reason why he should resign.

MR NYAWUZA: And what happened when he refused to resign, Mr Manana?

MR MANANA: They went for him in some place, I don't know whether it was in a tavern or what. They took him back to his home or house. He got inside the house and the wanted to still go with him to the office where he will tender his resignation. He refused and they broke the windows of the house and terrorised his home and he shot back to them as well until such time as the police came. It was - this happened during the day.

MR NYAWUZA: Mr Manana, is it correct that you attended their trial right throughout, when it was at Evander High Court?

MR MANANA: Yes, that is true.

MR NYAWUZA: Did they at any stage during the trial state to the Presiding Officer there that they were members of a political organisation?

MR MANANA: The judge yes, did ask that question to them, if they were affiliated to some political organisation.

MR NYAWUZA: And what did they ...(indistinct) as their response?

MR MANANA: The response was no, they were not. Joseph Makhanye even said he is so sorry for what he has done because he did not know what he was doing. This is why they were gangsters, because they did not know what they were doing. He said that in full hearing of the judge.

MR NYAWUZA: What is it, Mr Manana, that would give you satisfaction to can say to this Committee that in view of what was happening during the period and in view of what these people have said, I would agree to amnesty being granted to them? What is it that you would have wished the applicants to have said before this Committee?

MR MANANA: There's nothing I can expect from them because they were troublesome. There is just nothing I will ever expect to be said from them, or from their side. I think they should just stay there in prison, that's where they belong. And they cannot even raise my son and bring him back to life and put him right in front me.

MR NYAWUZA: Mr Manana, when I consulted with you yesterday you told me about a kid that the deceased fathered before he passed away. Can you tell this hearing about that kid.

MR MANANA: Yes, there is a child who was born in 1987, 16 December, and I am the guardian of the child now. This pains me so much, each time I take a look at this child, poor child, because of their deeds. Why they kill him?

MR NYAWUZA: Mr Manana, if we were for some reason to say okay, the applicants before this Committee were acting in line with what transpired there and they were members of SACO, for example if we say they were members of SACO, they were acting within the ambit of the policies of SACO, what is it that you as a resident of Morgenzon then, during that period, would say wouldn't have been in line with not buying in town but buying in the township? What is it that would have made you as an individual, to buy in town and not in the location?

MR MANANA: Well the community was coerced to do that. This particular place is so small. I think the man, this other man knows the place because that's where he was born. For us not to buy from town we would have suffered starvation, so we had to buy from town as well. While these ones carried their mission of being thugs, they were harassing the community, they were never reasonable in dealing with the community, instead they harassed. And I'm a civilian of that place and I have worked for the municipality department. I worked there at first as a policeman then, municipality police ...(intervention)

MR NYAWUZA: Mr Manana, testimony has been given during the hearing that your son, the deceased on a particular day, on the day that he died, he was from this place, he was from town and he refused to be searched and he subsequently went to the tavern where he was killed. I believe you know the events of that day still, not that fresh you know, but they still haunt you. Do you know as to whether he brought anything home that he bought from town that would have necessitated him not wanting to be searched?

MR MANANA: Well I won't respond to that, I won't even finish to respond to that because that's just a story. Because they themselves used to go and buy from town, but refused others to buy from town, or buy in town. There was nothing that you could purchase in the township, there was not even a butchery and there isn't even to date. There's simply nothing. It is only just recently that we've had some such developments. And some people had accounts in town, various shops or stores, and would go and do their business in town. There was nothing to do in the township. They were just in their own agenda and they want to further their mission of gangsterism.

MR NYAWUZA: Mr Manana, in not more than two lines, three lines, how would you address this Committee regarding this amnesty application?

MR MANANA: I will request this Committee not to grant amnesty to these because there's no truth. What they were up to was a game of killing people for nothing. This is my plea to you and I have difficulties now in raising the child, the deceased's child that is, to take him to school and further his education. There is nothing I would say, I would just request that they go back to prison where they belong. Everybody heard, we all heard what they have said.

MR NYAWUZA: Thank you, Chairperson, that is the case for the victim.

CHAIRPERSON: Thank you, Mr Nyawuza. Mr Motloung, questions?

CROSS-EXAMINATION BY MR MOTLOUNG: Thank you, Mr Chairman.

Mr Manana, first and foremost, my sympathies to you about this unfortunate incident. Getting down to the matter itself, please correct me if I'm wrong. Listening to you the way you give your testimony, the history you're sketching, I get the impression that you were totally opposed to problems like the consumer boycott that was sort to be imposed there. Is that impression correct?

MR MANANA: I wasn't opposing that, but it didn't bother me, I was not part of it. I was not even entertaining it, it was none of my business. They were just carrying that themselves, but I wasn't bothered about that.

MR MOTLOUNG: But all said and done, the truth or the fact of the matter is that there was this boycott, correct?

MR MANANA: Well there would be such and sometimes they would initiate it themselves because they were up to this gang.

MR MOTLOUNG: And you started off by saying that they shouldn't, the two applicants, get amnesty because what they are saying is not true. Am I under the correct impression that you in fact do not know what happened because you were not there?

MR MANANA: Well yes, I don't know, but the truth they have not yet told to this Commission. One thing they have not done is to disclose the truth to this Commission, that is convincing enough.

MR MOTLOUNG: And there seems to be this deep-seated feeling that I seem to be picking up consistently from you, that it simply baffles you, you cannot understand how this whole thing happened because the type of relationship that you yourself, your son and they in particular had, such that this was something out of the blue, isn't it?

MR MANANA: Yes, it did baffle me because as I said, those two were my children as well, they belonged to the soccer club, my soccer club and they looked at me as their father, now that really did surprise me, what transpired thereafter.

MR MOTLOUNG: Did you know SACO?

MR MANANA: I would see it singing in the streets and they will say they are SACO, and sometimes I would go to their meetings.

MR MOTLOUNG: Yes, and I'm sure you are the first to admit that SACO had a political problem, or was it a criminal problem that they had in your genuine views?

MR MANANA: I would say they were criminals because they would go and raid the houses and do whatever they want to do and harass the occupants of various houses each time they want support from the children. And they would just about anything that came to them or that crossed their minds and harassed extensively.

MR MOTLOUNG: Maybe in some sense I understand why you would call such people criminals, but is it correct that they would do everything in the name of politics, they would be singing and doing all these things all in the name of politics, is that correct?

MR MANANA: But they were not able to explain before the Commission their political views and their political deeds.

MR MOTLOUNG: Mr Manana, these people that went about troubling the councillors and so on, were they saying that they're doing all these things in the name of politics?

MR MANANA: I don't remember the name of politics, I only heard SACO, and I knew that SACO it was their thing, SACO was their thing rather. I never heard them say even once that they're IFP or ANC or whatever, I never heard anything to that extent.

MR MOTLOUNG: Okay. And in conclusion, are you repeating what you said when you were asked about why do you think your son was killed by these applicants, that they have killed him for the sake of killing? Is that your genuine view about the matter?

MR MANANA: Well I don't know the reason and I haven't seen one. And they failed to explain the reason to me, they don't even know what they were doing themselves.

MR MOTLOUNG: But you seem to know, and please correct me if I'm wrong, you seem to know that your son was not killed because he was a policeman, that you seem to know.

MR MANANA: Yes, that I know.

MR MOTLOUNG: I have no further questions.

CHAIRPERSON: Thank you, Mr Motloung. Ms Lockhat, questions?

MS LOCKHAT: No thank you, Chairperson.

CHAIRPERSON: Mr Manana, did they chase the police out of the township?

MR MANANA: Yes, that I heard, that the police were being chased from the township to town.

CHAIRPERSON: And it seems as if the councillors were also targets.

MR MANANA: Yes.

CHAIRPERSON: You say that now and then you went to one of these, or some of these meetings, these SACO meetings, is that right?

MR MANANA: Yes.

CHAIRPERSON: And what kind of meetings were they, what was being discussed at those meetings, was it politics, political questions or what?

MR MANANA: No, it wasn't politics, they were talking about payments, that I don't even know why because it was such a little money or a very small amount of money that we had to pay for the services. And the councillors ...(indistinct) that and we agreed for that for the improvement of the township, because the township had nothing, the infrastructure was a bit poor. So that happened with the consent of the councillors and the community as well.

CHAIRPERSON: So at those meetings that you went to, the people who attended the meetings, did they complain about the money that they had to pay, the state of the township, things like that, lack of development, that sort of thing?

MR MANANA: Yes.

CHAIRPERSON: Yes. Thank you, Mr Manana.

ADV BOSMAN: I have just one question. The two applicants, were they active in these meetings of SACO where you attended them? Did they participate actively?

MR MANANA: Well yes, they were there. And there's another brother of theirs and he was a councillor, he is a councillor now, and they would be attending such meetings. They are a very big family, I mean the applicants, so they will be in attendance as well.

ADV BOSMAN: Thank you.

MR MANANA: Thank you, thank you.

CHAIRPERSON: Thanks. Have you got any re-examination, Mr Nyawuza?

MR NYAWUZA: Yes, Chairperson, I have a few questions.

CHAIRPERSON: Do you.

RE-EXAMINATION BY MR NYAWUZA: Mr Manana, you were asked by the Committee as regards the participation by applicant 1 and 2 at these meetings and you said they would be there and there's one of their brothers who is now a councillor, who is he?

MR MANANA: George.

MR NYAWUZA: What was he to SACO, as it was known then, was he a chairperson or was he anything there?

MR MANANA: Well I would not be able to say that, but I remember when he insulted the parents that did not want to comply and be co-operative and he would just insult us and say "Voertsek to all of you who don't want to support this idea". These is why I say these are not telling the truth, they are lying.

MR NYAWUZA: As regards the death of your son, Mr Manana, did SACO offer any condolences to yourself during the bereavement, or did they say to you "Mr Manana, we distance ourselves from the incident that happened at this tavern", what was their demeanour?

MR MANANA: Not even one of the Makhanye family came to my house with regards to this. Over and above that, their father is not in talking terms with me. I don't even know why he's doing that, maybe he is the one who sent his sons to go kill my son. Anyway that's my presupposition, but I don't know why he's not in talking terms, why he's not talking to me.

MR NYAWUZA: No further questions, thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Nyawuza. Mr Manana, thank you very much, you're excused.

ADV DE JAGER: Mr Manana, is there peace in the township now?

MR MANANA: Yes, there is, too much peace.

ADV DE JAGER: And are you still chief of the soccer?

MR MANANA: Oh yes, I'm still the chief of the soccer.

ADV DE JAGER: Did you win this season?

MR MANANA: Oh yes, I've got a lot of cups and chiefs and everything. My team is winning too much.

ADV DE JAGER: Thank you.

MR MANANA: Thank you.

CHAIRPERSON: Thank you.

CHAIRPERSON: Yes, Mr Nyawuza, is that it?

MR NYAWUZA: Yes, that's the case for the victim, thank you.

CHAIRPERSON: Yes, thank you very much. Ms Lockhat, any evidence?

MS LOCKHAT: No, thank you, Chairperson.

CHAIRPERSON: Thank you. Mr Motloung, have you got any submissions?

MR MOTLOUNG IN ARGUMENT: Yes I do, Mr Chairman.

Mr Chairman, without sounding like a politician I cannot do more than ask the Honourable Committee to view this matter in its proper perspective, and the perspective for me is basically simple, it's part of that unfortunate past. And if one looks at the particular circumstances of this case, I must admit that this is not the first matter that I've done regarding amnesty, but I have found this matter to be particularly tricky and I would submit that I will really try and impress upon this Committee to view or approach it with the caution that this matter deserves.

For starters, there's mention of a tavern and this thing about the fact that the whole incident took place within a tavern, has the potential, a real potential to cloud the real issues here. But as we have heard ourselves on the evidence of Mr Simon Manana, this Morgenzon, Sivukile township, is a small place, I could well imagine that there's little to do in Morgenzon, especially for leisure, except go to this tavern. It seems that was the in-thing.

CHAIRPERSON: Was it on a Saturday?

MR MOTLOUNG: Apparently it was on a Friday, it was on a Friday.

CHAIRPERSON: Was it on a Friday evening that this thing happened?

MR MOTLOUNG: That is correct, Mr Chairman.

CHAIRPERSON: Okay.

MR MOTLOUNG: Now Mr Chairman, I'm sure most of the cases that this Committee has had to deal with were relatively of a more simple nature, where you have people belonging say to the African National Congress or the PAC and people carrying firearms or carrying bombs or limpet mines, things of that nature. But if one looks at what happened here, this was a clearly unsophisticated type of struggle in an unsophisticated area, very small area.

On the face of it, it appears that people didn't fight their battles the way some people did, like carrying AKs and so on but the truth that stares all of us in the face seems to be that there was this political problem of a boycott. Even Mr Manana can admit that much.

And may I pause here to refer just in passing to Mr Simon Manana. With all due respect to him, I find myself constrained to submit, with all due respect to this Honourable Committee, that his testimony doesn't really take this matter far. He was a clearly biased witness and understandably so, perhaps even legitimately so, but one didn't have to look far for that bias, the exaggeration was simple. The simplest example would be the fact that he knows there was SACO, he seems to admit without saying so, that they were talking political issues, but he calls them a gangster. With all due respect, I cannot belabour that the matter any further, but submit with all due respect, even to himself, that he was clearly a biased witness.

Now when it comes to the motive for this killing, that is one of the most central questions that this Committee has to answer. Why was this poor policeman killed? I want to suggest that the simplest thing that could have been proven, even in the High Court during the criminal trial, would have been that the poor policeman was killed for simply being a policeman. That seems not to have been the evidence that came through, there was simply a suggestion that this is possibly one of the motives. Mr Manana himself, it is clear from his evidence that he cannot say that this was in fact the motive ...(intervention)

ADV DE JAGER: But the applicants deny that.

MR MOTLOUNG: The applicants? I don't understand ...

ADV DE JAGER: The applicants deny that they killed him because he was a policeman. On their own evidence.

MR MOTLOUNG: Mr de Jager, that's precisely the point I'm making. I'm saying I agree with that statement, that he was not killed because he's a policeman.

ADV DE JAGER: Right, let's accept that. Why was he killed in fact?

MR MOTLOUNG: Mr de Jager, with all due respect, can I gravitate towards that?

ADV DE JAGER: Ja, okay.

MR MOTLOUNG: Yes.

And it seems also that everybody else except the applicants themselves, cannot give the motive for this killing.

CHAIRPERSON: We didn't ask - I'm sorry, Mr Motloung, we didn't ask Jabulani Makhanye about his educational background, we know what Joseph said, but it is fair to assume that he was likewise not highly scholastically educated? Academically educated?

MR MOTLOUNG: Mr Chairman, unfortunately I didn't canvass the point. Can I simply ask him now?

CHAIRPERSON: Yes, why don't you do that, it might be relevant.

MR MOTLOUNG: Thank you, Mr Chairman. He says he went up to standard seven.

CHAIRPERSON: Yes, very well. Yes, you can carry on.

MR MOTLOUNG: Thank you.

Now the applicants themselves submit that the motive was political. And I submit with all due respect, that in fact there's nothing else that the evidence would suggest, except a political motive. And I propose to hold forward here an example of a matter that one has recently dealt with, where some PAC cadres involving even a Sectional Commander, went about in a hospital trying to rescue one of their colleagues. It was not their programme that when they get to the hospital they intend to the policeman that they find there. As a matter of fact, the evidence that was presented showed that in the process they warned some of them that they must keep still, which happened, but in the process as they were cutting him, or unshackling him from the bed where he was some policeman walked in unexpectedly and at the spur of the moment, in the panic of the moment, he was shot and shot dead. Now the question is, what was the political motive of killing him, was it political in the sense that there is a political programme which has as its core the killing of that policeman. That is not the case. The fact of the matter is that if that example or analogy is to be applied to the circumstances of this case, the deceased was approached, not for any reason, but for a political reason. There was this political problem which found expression in two forms. Firstly, by way of a consumer boycott of the white businesses in town and secondly, where the comrades themselves were enforcing some measure of security at the tavern. And it remains unchallenged and uncontradicted that before the policemen could be made to walk out of the township they used to do this security check at the tavern. There's no evidence to countenance that.

Now they were doing these two political programmes and it is abundantly clear, I would submit with respect, that the only reason why the deceased was approached was his lack of co-operation with these political programmes. And it was in that spur of the moment when he was confronted by his lack of co-operation, that he decided to shoot.

ADV DE JAGER: What about the argument with the man from Newcastle? Should we reject that?

MR MOTLOUNG: Thank you learned Commissioner. As far as that particular aspect is concerned, I would submit that if one looks at the bundle before us and one has a look at the affidavits, if anything they seem to demonstrate to me that there could not have been a conspiracy to draw these affidavits in such a manner that the two applicants would concoct a perfect puzzle that fits handsomely together. In fact, when Joseph was asked about that argument he consistently stated that he formed the opinion when he saw this man, the deceased I'm sorry, pointing the firearm in the direction of this man from Newcastle, he formed the opinion there was an argument.

And by argument, Mr de Jager, I would ask you to look at some of the words used like a Court would look them, that sometimes you have to go behind the words to look at the exact meaning and not take their face value or grammatical meaning. I would suggest that within the context in which that word "argument" has been used - and let's remember an interpreter was being used here, it clearly shows some form of disagreement, it does not necessarily mean that he heard people arguing before.

And if one listens to his evidence, it becomes more clear that he saw - in fact one thing that he so clearly stated all along, is that he heard a gunshot going off and the next thing he saw this, he formed his own opinion. And as it would happen in a perfect Court situation, I would suggest that that is merely a question of people observing the same incident from different perspectives, different angles.

ADV DE JAGER: Ja, but then it went on, and they asked him "But why did you shoot this man?". And then he answered them, I won't repeat what he said, it's written down there, and he threatened to shoot all of them.

MR MOTLOUNG: In fact with all due respect, on that particular it seems before this Committee, the only evidence before this Committee is that he in fact did not respond. I think ...(intervention)

ADV DE JAGER: No, but that's his own affidavit, one of the applicants' affidavit.

CHAIRPERSON: Is the testimony of Jabulani, who was directly involved with the deceased from the very word go, is his evidence not more reliable about what happened prior to the shooting taking place? Because it seems as if Joseph's attention was attracted by the gunshot, that's what seemed to have attracted his attention. But at that stage, we know on the version of Jabulani, there had already been an interaction between himself and the deceased. Now in respect of that period, prior to the gunshot, is Jabulani's version not more reliable, because he's the one who is directly involved there, Joseph seemed to have been focusing only after he heard the gunshot?

MR MOTLOUNG: Mr Chairman, in fact that would be my submission, that the evidence of Jabulani should be more reliable regarding the initial steps of what happened in this whole altercation.

And one other thing, Mr de Jager, just to step off the question that you, I think ...(indistinct) really posed to me. If one looks for example - is it page 4 that Joseph was referred to? Yes right at the bottom it's stated:

It would be my submission that is one reads even some of those words like "revenge" and "one of our brothers", they can only assume their proper meaning if they are read within the context of the whole application by the applicants, because we know for starters that for example he was not one of their brothers, that "brother" had a different meaning. And if one talks about the revenge, the truth of the matter is here ...(intervention)

ADV DE JAGER: He was one of the comrades.

MR MOTLOUNG: Yes.

ADV DE JAGER: He was one of the political brothers.

MR MOTLOUNG: It is true. I'm merely demonstrating the point that some of the words that we find there have to be interpreted cautiously, they do not ...(indistinct) their ordinary every day meaning.

CHAIRPERSON: And then also it seems as if there is a further, Joseph Makhanye has submitted two applications, There's a later one as well, which seems to be dated just shortly after this one that you're referred to, and it deals with the matter in a slightly different kind of a light really. There's no reference to revenge or anything like that, it gives the more broad sort of background and so on.

MR MOTLOUNG: Mr Chairman, I must confess that I'm not aware of the further application that is being referred to.

MS LOCKHAT: Page 9.

CHAIRPERSON: Ja, I think it starts on page 9 and then it carries on. But in any case, it doesn't look as if he's completed any of these things himself, it must have been somebody who has been completing this on his behalf.

MR MOTLOUNG: That is correct, Mr Chairman.

Mr Chairman, I cannot help but really submit with respect, that at the bottom of this whole thing it has shocked everybody, including Mr Manana himself, the father of the deceased, it is clear that no matter how we colour it his some was being confronted about his lack of co-operation regarding a certain political problem that was on the go. And I would therefore submit with respect, that as far as the political motive is concerned that has been proven by the applicants. And as far as another related matter is concerned, or question, Jabulani in particular has been asked, I remember by the learned Committee Member, Mr de Jager, as to what in particular, what wrong is it that he says he did for him to ask for amnesty because according to his evidence he merely held the hand. I can only submit with respect, that the question of Jabulani's criminal liability is a matter of law, based on a factual situation, it is not for him to decide whether he's was criminally liable or not. I'm sure as lawyers we are aware of the principle of dolus eventualis, where in the particular circumstances of this case it is clear that during the attack, at least at its initial stages, my client was involved in the altercation, he held onto the hand of the deceased, he realised at some point that there were people who were busy attacking the deceased from behind and he never let go and he realised that the way he was holding onto the deceased he was disabling him to turn on the people who were attacking from the back an he answered clearly that he realised that those people were posing more of a danger to the deceased than himself. In that sense I'm sure there would have been no hesitation in our law to find that he was criminally liable for the killing that took place on that particular day.

CHAIRPERSON: Possibly on common purpose.

MR MOTLOUNG: As it pleases, Mr Chairman.

I would therefore submit with respect, that my client, Jabulani has clearly committed an act, it was propelled by a political motive and if one was to bring in the question of proportionality the question is, under the circumstances would we say that there is an element of proportionality. I would submit with respect, there was. The deceased, there seems to be no doubt that he did fire, that he did pose danger to other people's lives and we cannot close our eyes for a single moment from the situation that should have prevailed at the time. I'm sure emotions were running high in that little dorpie or township, and here is a person whose background is that he was a police officer, others have been chased out but he has been co-operating with the township, he has asked to be allowed to stay in and that did happen.

Now what has happened just on that one single day, during the day he goes against a political programme, or at least he's perceived to be going against it, takes out a firearm, chases people around and whilst some emotion should have been running high, he commits another wrong in the views of these people. Again when they are in the tavern a simple thing of having to be searched, he is refusing. But perhaps more importantly he's not being confronted to be fought or to be killed, on the evidence before us he's being confronted to be asked about these things and perhaps bring him back, he takes out a firearm and he shoots. And unless we were to become armchair critics who are always wiser after he event, they will always be wise after the event, the question is, what should those people of Morgenzon do when this policeman has already taken out a firearm, he has already shot at a person? And it's against the background that I've tried to paint. I'm saying without condoning once single thing that happened on that day, that no matter how we put it the bottom line of it is that he was being confronted about a political problem, why are you refusing to cooperate with the township when in fact - with the community, when in fact you have made an undertaking that you will do that? That's the bottom line of this whole thing. That's why it's so difficult for anybody, including Mr Manana, to understand why his son would have been killed, particularly by these two people who were not his son's sworn enemies.

And just in conclusion, Mr Chairman, if one is to go through the whole bundle there is one common golden thread that seems not to escape one's attention, some truths have been told, some lies have been told throughout the trial, but all said and done, clearly the evidence during the High Court trial and the evidence that you have heard here, when one looks at it clearly the truth comes out shining. One cannot help but come to the conclusion that it was never the intention of Jabulani, for starters, to kill or even fight with the deceased.

And even when one talks about Joseph, why would he admit that he stabbed him, even during the trial, but only say that "I stabbed him once". It doesn't help whether he was stabbed once or four times, the fact of the matter is that it's his brother, he has just been missed, he's in the fight, he's holding the hand of this person who is trying to shoot at them, there's this background of what happened during the day and has just happened here in the tavern. It was an unfortunate, an extremely unfortunate event.

And then I would ask this Committee that to the extent that this Committee may find that there are certain unsatisfactory features, or even inconsistencies in the evidence of the two applicants, they are clearly unsophisticated persons, not only do they come from an unsophisticated type of community, they themselves are shining examples of somebody who is not sophisticated. Mr Chairman and the learned Commissioners, I cannot take my matter any further, unless there is a particular matter that you wish to hear me on.

CHAIRPERSON: Yes, thank you, Mr Motloung. Mr Nyawuza?

MR NYAWUZA IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, my reasons for opposing this application are based on the premise that one of the corner stones of the Act that we hear about is that -

The main question that we as people who are here to talk about this is to ask ourselves as to whether the two applicants have made full disclosure.

I would humbly wish to take the Honourable Chairperson and the learned Commissioners just briefly through Jabulani's testimony. His testimony is that the deceased bought alcohol, put it on the table, left for the toilet and he approached him, he stood there, asked him about that, he drew a firearm without any provocation and fired a shot that incidentally hit a certain Nlangamandla.

We are here faced with a situation where the guy who speaks to my deceased client, was standing right in front of a trained police officer, who was trained in the handling of a firearm under any circumstances, who could have made a simple shot as he stated that there were no people there. The firearm - he could have shot him had he intended to shoot him.

The version that was presented during the trial was more-or-less that of Jabulani, but it went a step further, that Jabulani held my client from behind, he held his arms like this so that the other guys can shoot him. If that testimony was brought ...(intervention)

ADV DE JAGER: The other guys could stab him.

MR NYAWUZA: Yes, Chairperson.

... if that testimony had been brought before this Court, I wouldn't have had any problem with that, I would have said that is realistic. But what we are told here is not. He drew a firearm, about four shots were fired and the only one that injured somebody was the one that hit Nlangamandla. And from the trial record we have an injury that was sustained by the deceased to the foot, which I believe emanated from the scuffle that Jabulani and the deceased had. That we were not referred to, we were just told that firearms went - shots went out. We, myself and the victims would have appreciated had Jabulani come before this Court and said yes, I held him from behind for the other guys to shoot him. That is full disclosure. But up until this present day he's still denying that he took part in his killing, he held his arm.

Mr Chairman and the Honourable learned Commissioners, you will realise that we're here talking about somebody, if we take the version of applicant 1 and 2 into consideration, who had an altercation with these people during the day, if that is to be believed, and above all he comes to a place where he knows they'll be in full force, there will be more of them than they were during the day, walks into a tavern and he does what he did. Now he should have known that if I got there, those people are going to kill me.

My learned friend has referred to leisure, that you know the fact that we're here being referred, the whole incident happened at a tavern, might have emanated from the fact that Morgenzon is a small area and these people went there to have leisure. That is not what they told this Commission, they told this Commission that they went there to search people who entered that place.

We all know that when Joseph approached the deceased he had a knife in his possession and at all material times he had the knife because his version is he had searched somebody and had found the knife in that person's possession. The knife, according to the trial document, was found in his trousers at home when he was arrested. So are we still saying this was not his knife?

ADV DE JAGER: And at the trial at the end, it was common cause that it was his knife.

MR NYAWUZA: Exactly, he made a statement to that effect.

The applicants deny any - they deny that they killed the deceased because he was a police officer, what they're saying is they killed him because he did not adhere to their policies.

This Committee knows fully well that this thing happened during the day, when my client the deceased, threatened to shoot them. That cannot be disputed in this hearing today because you don't have any person who can come before this hearing and say that did not happen, my client is deceased, he cannot come here and dispute that. And like I'm saying, he wouldn't have gone there had he threatened to shoot them during the day, he would have known that they would attack him.

As regards the unsophistication of the whole thing, my learned Chairperson and the learned Commissioners know fully well that we deal on a daily basis with statements that are made to police officers in our Courts, where most of the people that we represent as lawyers, haven't gone that far with education and the contents of the said affidavits are always taken into cognisance, if there's inconsistencies in the statement that you made to the police and the statement that you make in Court, that is taken into cognisance.

For the applicants before this hearing to pick on the statements that favour them, that they had made to the police and say no, this one we take out and say that one I know of, my humble submission is, because they know it favours their case. It's common cause that there was this SACO and it's common cause as we've gone through the affidavit of one their leaders who said at no stage did they give any order that people should be killed. They went beyond that, they killed a person and the person was not killed during the day when he is alleged to have shot at, to have wielded a firearm at them and they ran away, during the cause of the struggle. These guys are seated in a tavern, they are drinking, all of a sudden without any provocation from anybody the deceased draws a firearm and fires a shot. How possible is that?

Jabulani came before this hearing and said "I held his arm until the firearm fell to the ground" and when the firearm fell to the ground he ran away. That is also unrealistic. If I fight with somebody for a firearm my life is in danger and that is what he said and we fully know that adrenaline rushes to the head, I'll get agitated and as soon as the firearm falls the ground I'll kick that person, I'll do whatever I can to get even with that person.

Jabulani still denies up to this present day, that he did anything to the deceased. There was testimony in the trial Court that he was jumping on the face of the deceased, he was kicking the deceased on the head. He doesn't bring that before this hearing. Are we still saying he has fully disclosed before this hearing, of what he has done? Things have been picked. They are saying - we don't deny the fact that there was a boycott, and they favour my client's version as regards his co-operation with them. Only one incident on that particular day led to the death of my deceased client, that of being searched. How far true that is, nobody is here to give testimony regarding that.

It is my humble submission that I say, my client was a trained police officer to handle a firearm, he could have shot Jabulani.

Further, if we hypothetically say look, he refused to give them his firearm, he is a police officer, that firearm is not his, it belongs to the Force. The rules of handling a firearm are that you only give your firearm to somebody who has - you can't even give your firearm to somebody who has a firearm licence because it's your firearm, it's registered in your name. It forms part of one of the negligences when it comes to you giving somebody else a firearm. He might have refused and said why do I have to give you my firearm, when you, Joseph, have a knife in your pocket. Because they said they searched people and sat with the weapons which they had confiscated from people until the tavern is closed. When was the tavern closed? Was the tavern closed at 2 o'clock in the morning, so that they should be in a better position to attack people than other people? Is there a political objective here?

I asked them as to what the killing of my client did for their organisation as SACO, and both said "nothing". Do we still have an objective? Because if it had done good, if it had done good for their political organisation I would say yes, I would agree that their actions fell within the ambit of the policies of SACO then.

The other factor that we're faced herewith is that ...(intervention)

ADV DE JAGER: On this point. It may be that they didn't actually achieve something, but is there any evidence that they wanted to achieve something?

MR NYAWUZA: Yes. The applicants before this hearing said they wanted to achieve a one door for all in the white businesses.

ADV DE JAGER: Yes, but by the killing.

MR NYAWUZA: No, by the killing it happened on the spur of the moment, as my learned friend said. Because both deny that they intended to kill him but the mere fact that 10 people are attacking somebody and the Joseph stands up from where he was seated, draws out a knife - he's testified that he saw people hitting him with bottles, he goes straight up to him and stabs him. Who knows that he didn't stab him once, he stabbed him more times, more than once, who knows that? Nobody can come here and say he stabbed him more than one time.

CHAIRPERSON: But is there any other reason why this happened, why the deceased was attacked? I mean there's no suggestion of any bad blood, there's no suggestion of any other ...(intervention)

MR NYAWUZA: I'm getting a bad feedback.

CHAIRPERSON: ... any other possible motive that had nothing to do with this political situation, where the deceased is now perceived to be challenging and even undermining the authority and the political struggle which was clearly taking place in the township for political agemony. We know what the political situation was in those years and this fits almost to a tee, into what was happening in many townships across the country where some or other community organisation that is affiliated to the ANC, would expel any structures that are perceived to be supporting the status quo at that point, the police, the community councillors, out of the township. It goes with a consumer boycott, which was the trend in virtually most of these uprisings. The deceased lives in the township when his colleagues had already been expelled there, and then suddenly this thing happened. Is there any conceivable reason why this eventually happened, except that it is associated with this political situation there?

MR NYAWUZA: I would wish to respond thereto. The deceased went to a tavern, if I were to take leisure as told before this hearing by my learned friend, he went to have leisure there, he sat with his friends to afar, he was not approached there, he was only approached when he went to the toilet, when at no stage any altercation happened between the two. So whatever was spoken between the deceased and Jabulani is not known to this hearing and we can't dispute what Jabulani is saying to use because we were not there. But for the deceased to walk into a tavern, sit down and drink, a few minutes thereafter on being approached by Jabulani, draw out his firearm and fire at Jabulani, is inconceivable without any provocation. Why didn't he shoot at Jabulani when he walked into the tavern?

We don't deny the fact that there was a boycott, but let us not use the political scenario then ...(intervention)

CHAIRPERSON: But you see, that's the difficulty, Mr Nyawuza. Why did all these comrades attack this one person? I mean it was easy to have disarmed him under the circumstances, they could have just taken off his firearm or whatever if he was still part of their in-group, part of their political circle, but it smacks of that, it smacks of a situation where he had now clearly distanced himself from the struggle that these comrades were involved in and that is the reason why all of them attacked him. It doesn't seem to have - he could have had an argument with Jabulani, I hear what you say, they could have had a disagreement and he could have swore at him or this one could have said something about his girlfriend or whatever, you know it could have been a fight in a tavern, they had a few beers, but it doesn't look on the whole, and we must take a holistic view of this matter, it doesn't look like it's one of those flare-ups after people had some beers and they fight in a bar.

MR NYAWUZA: Ja, my learned judge, do you know what would happen is the testimony that was given by both applicants was that they went to this place to discuss the searching and the keeping of safety at this tavern specifically. What beats me is how can about 60 people - he's referred to 100 people in his affidavit, about 100 people can go to a tavern and discuss the searching? How about 100 people can work at a tavern that, according to the testimony of one of the applicants, is about a metre, that is what he said, from there up to here, a 100 people working to search people there. So we see it has some political connotations, I don't deny the fact that it's got political connotations, but they go as far as during the day. Had they wanted to speak to him, according to the testimony here, to the trial record, he was drunk at some stage, this they could have done the following day if they said they had the relationship that they're this hearing about.

If they had a good relationship, they could have approached him the following day and said man we - like Jabulani was giving directions to his alleged comrades, he would have decided look I'm going to approach him when he's sober, ask him about the whole thing, not ask him at a tavern. Had he not pitched up at the tavern, would he have been killed? No, he wouldn't. There's no testimony that says we would have attacked him the following day. This guy is attacked because a shot went off, and how the shot went off beats me.

I humbly submit before this hearing that why my client fired a shot that hit Nlangamandla, he was being attacked, he was trying to get hold of his firearm, his hands were held from behind and when he ultimately got to reach the firearm, he had stab wounds and he was just shooting indiscriminately to ...(intervention)

CHAIRPERSON: No, I hear all of that, Mr Nyawuza. You see on the nitty gritty, on the facts and on the circumstances you can argue, there are many, many arguments that you can raise and you can raise many question marks, but the big question that we have to grapple with is, is there anything before us that divorces this incident so clearly, it severs the tie so clearly between this incident and the political situation there, that we can conclude that the applicants have not made out a case that this was associated with a political objective. And that is the big question really. The nitty gritty, the facts, whether they stabbed once or twice or whatever happened, those are things that can be argued, but the big question is the one that we must really look at. And that is why I'm asking you, is there anything before us that severs the tie completely between the political situation and this incident, so that we can conclude that this is not at all associated with a political objective?

MR NYAWUZA: Yes, I would wish to respond to that, Chairperson. The situation that we're faced herewith is the death of this chap. Where did he die? At a tavern. The same question that I asked to the applicants comes to the fore, was it part of police officers' duties to guard the taverns? The answer is no. Were they as the comrades, there to guard the taverns or was guarding of the taverns, did it fall within the political objective of Morgenzon? No, it's not, not everybody goes to the tavern. Who does it benefit? Who does the search into the tavern benefit? Does it benefit the community? No, it doesn't, it benefits the owner of the tavern and not the community. So I would vehemently disagree that it is something that was politically motivated. The searching into a tavern does not have anything to do with the community.

ADV DE JAGER: But sometimes in a tavern or in a bar people would argue with each other about politics.

MR NYAWUZA: I agree with that.

ADV DE JAGER: And suppose there was an argument about politics and they got cross with each other and started a fight, whoever stated it wouldn't matter, but they started grabbing at each other and in the end he was stabbed and somebody shot, wouldn't it then be associated with politics?

MR NYAWUZA: Then in the scenario that we're faced with, it would have favoured the applicants because they searched the people and held the arms to themselves.

ADV DE JAGER: Yes.

MR NYAWUZA: If an argument ensued regarding politics they would be in a better position to attack people than anybody else.

ADV DE JAGER: Ja, but okay, now it's also a fact that he still had his gun, that's not denied. So one party had a gun and the other one had 20 knives. So it's not a matter of whether you've got weapons or not, it's a question of whether on the evidence, wasn't there an argument about politics?

MR NYAWUZA: The testimony given before this hearing is that there was no ...

ADV DE JAGER: Well there are two stories actually. The one - I went up and I confronted him with a political matter. The other is - he was in an argument with a bloke from Newcastle, a different town and they had an argument and he took out his weapon and he wanted to shoot that man, missed him and accidentally struck one of the comrades. That in - all the others became angry about it and they retaliated and they in the end killed him. So we've got two possible stories.

MR NYAWUZA: I agree with that. We're faced with a situation like I've said initially that there's some parts of the political objectives that are being drawn into the whole thing just to help the applicants' case. The fact that a certain guy from Newcastle was missed and Nlangamandla was shot in the shoulder, the guy Joseph states clearly in his application, to which I referred him, that they stood up to revenge. Were they revenging for political reasons or were they revenging for personal gain or ill will? That is the question that we unfortunately cannot come to. They might have been revenging because he is their friend and not on a political objective matter.

CHAIRPERSON: Have you got any further submissions, Mr Nyawuza?

MR NYAWUZA: No, thank you, that's my submissions.

CHAIRPERSON: Thank you. Ms Lockhat, any submissions?

MS LOCKHAT: No, thank you Chairperson. I think my learned colleagues have addressed the issue, thank you.

CHAIRPERSON: Thank you. Mr Motloung, is there anything else that you wanted to add?

MR MOTLOUNG: I have nothing else to add, Mr Chairman, thank you.

CHAIRPERSON: Thank you. Yes, that brings us to the end of the formal part of these applications. The Panel will consider the matter and will formulate a decision and we will notify the parties as soon as the decision is available. So under those circumstances we will reserve the decision in the matter.

We thank you both of you, Mr Motloung and Mr Nyawuza, for your assistance. Thank you very much, you're excused if you want to be excused. Thank you.

MATTER: ARMED ROBBERY - TRANSVAAL GALVANISED COMPANY

CHAIRPERSON: Now Ms Lockhat, there's a situation with a witness who is apparently only available this afternoon.

MS LOCKHAT: That is correct, Chairperson, that is Mr van der Walt and it is in the Armed Robbery - Transvaal Galvanised Company, in that matter.

CHAIRPERSON: Yes. Can we possibly deal with that matter, so that we can see if we can't assist that witness?

MS LOCKHAT: Yes. Thank you, Chairperson.

MR NYAWUZA: The next application is that of ...(intervention)

MS LOCKHAT: Daniel Moele and the reference number, is it AM3108/96?

MS LOCKHAT: That is correct, Chairperson.

CHAIRPERSON: Very well, so that will be the one that we'll be hearing next. I'm going to ask the legal representatives to put themselves on record. Mr Smit?

MR SMIT: As it please, Mr Chairman, learned Committee Members. I am J M C Smit, on instructions from the firm D P du Plessis Attorneys. I'm appearing on behalf of Mr Moele, the applicant in this matter.

CHAIRPERSON: Thank you, Mr Smit. Ms Vilakazi?

MS VILAKAZI: Thank you, learned Chairman. I appear on behalf of the victim, Mr van der Walt. I am Lindiwe Emily Vilakazi.

CHAIRPERSON: Thank you, Ms Vilakazi. Ms Lockhat?

MS LOCKHAT: My name is Lynne Lockhat, I appear on behalf of the Truth and Reconciliation Commission. Thank you, Chairperson.

CHAIRPERSON: Thank you very much. Mr Smit, is there anything that you want to put on record, or do you want us to administer the oath to your client?

MR SMIT: Mr Chairman, you will notice on the roll, maybe I can just put this on record at this stage, that Mr Moele is an applicant in two capacities, also in the capacity for an armed robbery at the Ormonde Satellite Police Station, where he's got a second applicant, Maj Mametse also appearing there. I was wondering regarding proceedings, if it wouldn't be easier due to the fact that everything is contained in one bundle, to address both the matters at the same time?

CHAIRPERSON: Do you mean you'll lead Mr Moele on both those two incidents?

MR SMIT: Mr Moele not necessarily, well I can lead him on both at this stage and then Mr Mametse whenever he testifies can then just corroborate. That is basically what I have in mind. So with your permission, I would then lead him on both the incidents, or would you rather prefer for them to be dealt with separately?

CHAIRPERSON: I was basically going to assist the witness, because I was told that apparently he's got some difficulty if we are not able to conclude the matter this afternoon.

MR SMIT: As it pleases.

CHAIRPERSON: So perhaps we should just take the first incident and perhaps it will save us a bit of time and then we can always come back to your client on the rest.

MR SMIT: As it pleases.

CHAIRPERSON: I assume the parties have no objection to that. Alright.

MR SMIT: As it pleases. I then have nothing to add.

CHAIRPERSON: Do you want him to take the oath?

MR SMIT: Yes, if he could be sworn in please.

ADV DE JAGER: Your full names.

DANIEL NTATE MOELE: (sworn states)

CHAIRPERSON: Yes, thank you. Mr Smit?

MR SMIT: As it pleases. I will then lead the evidence.

ADV DE JAGER: Mr van der Walt is interested in which incident?

MR SMIT: The Transvaal Galvanised Company incident.

ADV DE JAGER: So we'll continue with that one?

EXAMINATION BY MR SMIT: That is the one we're dealing with. It does not concern Maj Mametse, so I will just deal with that one.

Mr Moele, as you heard now we will only deal with the robber at the Transvaal Galvanised Company at this stage. You submitted certain statements and confirmed that you were involved in that robbery, is that correct?

MR MOELE: That's correct, Sir.

MR SMIT: At that stage when this robbery ...(intervention)

INTERPRETER: Chairperson, I would like to get from the applicant just what language he prefers testifying in.

MR SMIT: I think the witness said sePedi. Is that channel 4?

INTERPRETER: That is correct, Chair.

MR SMIT: Thank you, Mr Chairman.

So you say you were involved in this robbery.

MR MOELE: Yes.

MR SMIT: How many people accompanied you on this day?

MR MOELE: We were four.

MR SMIT: And is it correct that this was during July in 1993?

MR MOELE: That is correct.

MR SMIT: At that stage you were a member of the ANC, is that correct?

MR MOELE: That is correct.

MR SMIT: And what capacity did you act in?

MR MOELE: I was the Deputy Commander of the Self Defence Units.

MR SMIT: Who was your commander?

MR MOELE: My commander was a Mr Mametse.

MR SMIT: So would I then be correct in accepting that you were second-in-charge in this area?

MR MOELE: That is correct.

CHAIRPERSON: Sorry, which area is that?

MR SMIT: In what area were you second - your commander and yourself, over what area were you in charge?

MR MOELE: Katorus.

CHAIRPERSON: The Katorus Self Defence Unit?

MR MOELE: Yes.

MR SMIT: Now the decision to go to the Transvaal Galvanised Company to obtain money there, whose decision was that?

MR MOELE: It's me who came up with that decision.

MR SMIT: Did you receive instructions from anybody to get funds?

MR MOELE: Yes, there were orders that we must go and get funds.

MR SMIT: Who gave these orders?

MR MOELE: Our commander, Mr Mametse.

MR SMIT: Did he specifically say to you to go to the Transvaal Galvanised Company to get the funds, or did you out of your own accord decide that was the place to do the robbery at?

MR MOELE: He did not tell us to go to Transvaal Galvanised Company, he told us that funds were needed. Where to get hold of the funds he did not say.

ADV DE JAGER: Did he say you should rob or should you go out with a collecting list and collect funds? What was your order?

MR MOELE: He gave us the order to gather money and it's true we asked from people, the shop owners, we asked for donations, but the money that we got was too little compared to the sum of money that was needed.

ADV BOSMAN: In whose opinion was it too little, in your own opinion?

MR SMIT: We knew the sum that was wanted, that is R10 000 and the money collected from the shop owners and anybody who was able to assist, the money was not even up to R6 000, and we knew R10 000 was needed.

ADV BOSMAN: Thank you. Did you have a set time in which to gather the money?

MR MOELE: We did not have a set time, but the money was urgently needed.

ADV BOSMAN: Thank you, Mr Smit, you may continue.

MR SMIT: As it pleases. What was the money needed for?

MR MOELE: There was information that someone or some people were selling AK47s and the handgrenades, so we wanted them to protect the people of the township. There was also a possibility that these guns might end up in the hands of people who would fight against our people.

MR SMIT: Is that why you state that it was urgent to get the money?

MR MOELE: That is the reason, Sir.

MR SMIT: Then if we can move on to the day in question now that the robbery actually took place at the Transvaal Galvanised Company. You stated that there were four of you. Did you plan the robbery there?

MR MOELE: It was known that there's an amount of money that can be received from Galvanised Company. Myself and Thobile, it was decided that we go first and confirm that the money had arrived and that nothing had changed according to what we knew.

MR SMIT: Okay. This Thobile that you mentioned, did you know his surname?

MR MOELE: It's Thobile Zolo.

MR SMIT: And did you then establish that the money is still there?

MR MOELE: Yes, we discovered that the money had been delivered, but it was only going to be taken out at a certain point to pay out the employees. ...(end of side B of tape)

MR SMIT: ...(no audible question)

MR MOELE: ... after the money was removed from the offices to the place where it would be paid out we penetrated, we got into the place where money was and we threatened the person who gave us the money, we left and ran away.

MR SMIT: How did you threaten this person?

MR MOELE: We told the person that we were not there to assault him or her, we wanted the money.

MR SMIT: Did you use any violence towards this person?

MR MOELE: We did not use violence, we only threatened the person by pointing a firearm at the person.

MR SMIT: And did he then freely hand over the money to yourselves?

MR MOELE: Yes, even though he was scared because a firearm was point at him, he gave us money. Thobile accepted the money.

MR SMIT: After you ran away were any shots fired?

MR MOELE: Yes, when we were running away some people had toy guns and I shot in the air so that they can hear I head a real firearm. I shot just once.

MR SMIT: If you say "in the air", was your weapon pointed upwards to the sky?

MR MOELE: Yes, my firearm was pointing upwards.

MR SMIT: Did you get away with the money?

MR MOELE: Yes, we did manage to get away with the money, but things did not go according to the plan, that two, three, the other three were supposed to wait for us at the gate so that they assist in case we have troubles on coming up. They were not there, the car was also not there, so we had to run, we had to depend on our feet. We ...(intervention)

ADV DE JAGER: Sorry, before you proceed. You told us four people were involved, you and Thobile went into the building, now you talk of another three persons who would have waited at the gate.

MR MOELE: When we left the township of Duduza, we were going to be five, the fifth one was going to be the driver of the car and the others were going to assist when we retreat, but when ...(intervention)

ADV DE JAGER: Right, okay give us the names now before you proceed. Give us the names of the five people.

MR MOELE: The first one will be myself, Thobile would be the second, the third one would be Siphiwe Mkumo, the fourth will be comrade Maguala, the fifth one, comrade Raudi.

ADV BOSMAN: Were they all members of the Self Defence Unit?

MR MOELE: Yes, according to my knowledge they were all members of the Self Defence Unit.

MR SMIT: And were they all under your command?

MR MOELE: Yes, it's because among us I was the leader, so I was the commander.

ADV DE JAGER: Sorry, Mr Smit. We're at the gate now, proceed from there.

MR SMIT: As it pleases.

So okay you are running now towards the gate with the money, who is carrying the money?

MR MOELE: Thobile accepted the money. Because some of the money was falling down, he gave it to me, I took the box. So we went to the gate, that was after I shot the one fire in the air. They were hiding because they heard the shot. We got out of the gate. We did not see the car and our comrades were nowhere to be seen. Why, I do not know. But we had to run because people were now screaming "Stop them, stop the thieves". We ran away.

MR SMIT: What did you do with the money?

MR MOELE: We split, Thobile ran his direction, I ran my direction. We were not actually - we didn't know where we were running to. I asked a lift from some people. I had taken out the lumber jacket that I was wearing and I covered the box with that. The people who gave me the lift were driving a white BMW. They did not know who I was, where I came from. Unfortunately they moved back to the direction where we took the money from and one our way there was a roadblock. We were taken out of the car, the car was searched, they did not find anything on me, but when they searched the car they found the lumber jacket with a firearm and the money. And the people who were in the car said "No, we don't know what this lumber contains inside, but it belongs to me". That was my arrest.

MR SMIT: And you were then put on trial and you are presently serving a 16 year sentence for this robbery, is that correct?

MR MOELE: That is correct.

MR SMIT: Just one last question. If you managed to get away with the money and you were not caught, what would you have done with the money that was robbed at the Transvaal Galvanised Company?

MR MOELE: I would have reported to the commander that we made use of the opportunity and the manner of gathering money that would in turn be used to buy guns and handgrenades that we so longed to have.

ADV BOSMAN: If I may just come in here, Mr Smit.

Did you not inform your commander beforehand that you were going to effect this robbery?

MR MOELE: No, we did not.

ADV BOSMAN: Why not?

MR MOELE: Because he said we must use our own initiative to get money. That money would assist us to get guns and handgrenades. So we were doing the initiative that he talked about. We were going to report after getting the money.

ADV BOSMAN: You were a trained MK cadre were you not?

MR MOELE: I am still a trained MK cadre.

ADV BOSMAN: Were you aware of the policies of the African National Congress at the time? Did it form part of your training?

MR MOELE: Yes, I knew the policies.

ADV BOSMAN: Was it part of the policy of the African National Congress to obtain monies through robberies?

MR MOELE: It was not the police of the ANC, but as members of the SDU, we were pressurised. The ANC was not assisting when it comes to the functions of the SDU, it only gave us the mandate to assist the communities within the townships.

ADV BOSMAN: Sorry. Was it not then - knowing that it's not in line with ANC policies, was it not really in those circumstances necessary to consult your commander before doing something that was generally regarded as out of line?

MR MOELE: I have already mentioned that I am also a commander and I have the authority to take tactical decisions, I would not wait for him not knowing his whereabouts and when he would be back.

ADV BOSMAN: Thank you, Mr Smit, you may continue.

MR SMIT: Thank you.

The guns that you, or the weapons that you would have bought if you obtained the money, what were these weapons, what were they going to be used for?

MR MOELE: These weapons were going to be used to protect the communities that were under the attack of unknown people. They were going to be used again for the training of those who did not know how to use a firearm. They would be told where to go and get the firearms in cases where it was necessary to do so.

ADV DE JAGER: Would you use a handgrenade to protect your community?

MR MOELE: Yes, if a handgrenade is handled by well trained people, it can be used to defend the community.

MR SMIT: Thank you, I have no further questions, Mr Chairman.

CHAIRPERSON: Thank you, Mr Smit. Ms Vilakazi, have you got any questions?

MS VILAKAZI: I have a few questions, Mr Chairman.

CHAIRPERSON: Go ahead.

CROSS-EXAMINATION BY MS VILAKAZI: Mr Moele, you said that you were given instructions to raise money, who gave you the instructions?

MR MOELE: That was our commander, Mr Mametse.

MS VILAKAZI: But now when you went to rob, Commander Mametse did not know that you were going out to rob, is that correct?

MR MOELE: Yes.

MS VILAKAZI: Now who gave you the instruction to go and rob Transvaal Galvanised Company?

MR MOELE: I repeat, I was the Deputy Commander to Commander Mametse and I had the authority to take what we call tactical decisions, as I deem fit to do so.

MS VILAKAZI: When did you take the decision to go and rob Transvaal Galvanising?

MR MOELE: I was at Duduza with the comrades and I was telling them about this need of raising funds and they said, they mentioned that there was information to the effect that there's money at Transvaal Galvanised Company that we can get hold of without injuring anybody, without even firing.

MS VILAKAZI: And where was Commander Mametse at that time?

MR MOELE: He was left behind at Katorus because Duduza is removed from Katlehong, Thokoza and Vosloorus.

MS VILAKAZI: So did you go out to rob Transvaal Galvanising immediately after taking that decision?

MR MOELE: I do not understand. What do you mean when you say "immediately"? Because we went out to confirm, to investigate as to whether the situation was as we were told it to be. It was myself and Thobile who went out and we found the situation to be as we were told and there was nothing new, and I then took a decision to act.

MS VILAKAZI: Okay, let me rephrase my question. When did you obtain information that you could get money from Transvaal Galvanising Company?

MR MOELE: On the 7th of July 1993.

MS VILAKAZI: From whom did you get the information?

MR MOELE: It's a member of the Self Defence Unit who once worked at Transvaal Galvanised Company.

MS VILAKAZI: And then you went on to rob the company immediately on that day, is that correct?

MR MOELE: That is correct.

MS VILAKAZI: Now, at what time did you go and check? Can you just take us through the process of the minute when you got the information, when you went to check and then when you went to rob.

MR MOELE: Three were left in the township. We did not want to go carrying firearms because there were usually roadblocks between townships and towns. We took a taxi to Transvaal Galvanised Company, to go and investigate and I realised that there was no possibility of fighting with people. I then took a decision to phone those who were left behind in the township to come with guns, small guns, pistols, so that we can act.

ADV DE JAGER: Which township are you referring to now, Katorus or where?

MR MOELE: I'm talking about Duduza now.

ADV DE JAGER: And were your members of the SDU at Duduza or at Katorus?

MR MOELE: Our people were members of Katorus. Duduza was quiet at that time ...(intervention)

ADV DE JAGER: Yes, I only want to find out, the five people were they all from Katorus or were some of them from Duduza?

MR MOELE: Three of them were from Katorus and two were from Duduza.

ADV DE JAGER: So they were not - all of them were not members of your SDU in Katorus?

MR MOELE: Yes, two were not members of Katorus SDU.

ADV DE JAGER: Thank you.

MS VILAKAZI: Just a follow-up on the last question. You say two were not members of the Katorus SDU, were they members of any SDU?

MR MOELE: They were the member of KwaDunsa SDU. That is KwaThema, Tsakane, Duduza and Deveyton.

MS VILAKAZI: So at the time when you phoned they were not in the same place, is that correct?

MR MOELE: They were at the same place. They were left behind at one safehouse. That's where we left them when we went out to Vorsterskroon.

MS VILAKAZI: But then why did you decide to phone the members of the SDU, to come and assist in the robbery instead of phoning your commander and getting instructions first?

MR MOELE: The commander's phone at home was not working and we do not use the residential telephone for underground functions so to say.

CHAIRPERSON: But now which phone did you use to phone the other members?

MR MOELE: There's a system called safehouses. In other words, we have a hired telephone and we use codes when phoning there.

MS VILAKAZI: Are you saying that you could not use the same codes to communicate with Commander Mametse?

MR MOELE: The commander was out of sector, if you'll allow me to use those words, he was also busy. I would not find him anywhere through using a public telephone.

MS VILAKAZI: So if I understand you well, you cannot say that you were acting under the instructions of Commander Mametse, you acted as the commander at the moment because he was not there, is that correct?

MR MOELE: Yes. I want to repeat and say as the Deputy Commander of Mametse, I also had the authority to take a decision if and when I saw it necessary. When the situation allowed me I would not even ask permission from Mr Mametse.

CHAIRPERSON: Yes, you were executing a general order.

MR MOELE: That is correct.

CHAIRPERSON: Yes, Ms Vilakazi.

MS VILAKAZI: Okay, let's got back to the scene of the robbery then. You said you obtained information that you could get money without harming anyone, is that what you still saying now?

MR MOELE: Yes.

MS VILAKAZI: Now if that was the information given to you, why did you arm yourselves?

MR MOELE: We would not just go there barehanded and say "Give us money", we were going to threaten him to give us money. Without a firearm they would laugh at us.

MS VILAKAZI: So will I be correct to say that you took guns to make sure that you get the money that you wanted?

MR MOELE: Yes, to threaten them. One firearm, to threaten them with the firearm and get hold of the money.

MS VILAKAZI: Would I still be right to say that had the opportunity to use the gun arisen you would have used it?

MR MOELE: I used the firearm, didn't I? I said I used the firearm, I shot in the air.

MS VILAKAZI: What did you shoot in the air for?

MR MOELE: There's someone who screamed, who screamed, who said "They have a toy gun", and I shot in the air to prove that it was not a toy gun, it was a real gun.

MS VILAKAZI: Who is that person who shouted that you had a toy gun?

MR MOELE: I do not know the person, I only heard. It must one of the workers because people were working there. I did not see the person, I do not know the person.

MS VILAKAZI: But where was this person?

MR MOELE: The person was on my right side.

MS VILAKAZI: From the evidence that you gave I get the impression that when you got hold of the money you were inside a building, is that correct?

MR MOELE: No, we were not inside the building. I don't know whether to call this a building, it's only corrugated irons at the top and no walls on the sides. When the money fell from the box we were outside. It's only corrugated irons at the top as the roof and no walls on the sides.

MS VILAKAZI: So when you got the money you were outside that structure that you're describing, or were you inside the structure? Where exactly were you?

MR MOELE: Thobile went underneath the corrugated irons, I was outside.

INTERPRETER: I think the distance can be estimated from where I'm sitting up to where the witness pointed.

ADV DE JAGER: Was this an open shed or was it like a veranda?

MR MOELE: People are working inside here. It was like a factory building, a shade for the employees. It's a big area.

MS VILAKAZI: But could you see people who were around that area?

MR MOELE: Yes, we saw people.

MS VILAKAZI: Was any of the people around there armed, from what you saw?

MR MOELE: I can't really say someone was armed, no-one openly had a gun or handling a machine gun. I am unable to know whether there was anyone who had a firearm.

MS VILAKAZI: But then you didn't see anyone carrying a firearm or any weapon of some sorts?

MR MOELE: I did not see anyone carrying a firearm.

MS VILAKAZI: So would I be right to say that there was no threat to yourselves at that point in time?

MR MOELE: Yes. I think that is the reason why we went out there. We knew that there would be a fighting and there would not be any killing.

MS VILAKAZI: And that should also have been a reason why you did not have any necessity to fire in the air. What is your comment on that?

MR MOELE: Someone shouted, he said "They are having a toy gun". Now that would make people want to get hold of us, that's why I shot in the air.

MS VILAKAZI: But you've just said that you did not feel threatened, so the only reason why you fired in the air was just to demonstrate that the gun was working, it was not to protect yourselves?

ADV DE JAGER: I think the reason for firing into the air was to show to the people "don't try and tackle us or arrest us, we've got a weapon, so stand back, allow us to get away".

MR MOELE: That is correct.

MS VILAKAZI: Honourable Commissioner, I'm asking this question because the witness has said repeatedly that they had information and they were sure that they would not be harmed in any way.

CHAIRPERSON: Yes, but that is in respect of the actual robbery, this is now in respect of the getaway. As part of the getaway there was an unexpected event that intervened, somebody was shouting that they're chancers, they're running around with a toy gun committing a robbery. So this applicant fired in the air just to show that there are no toy guns here, don't risk to apprehend us. So it's a form of defence as well. But this is to with the getaway, not with the robbery. Their information was that there would be very little resistance at the robbery itself and it turned out to be right, there was almost no resistance. But this was afterwards, as they were running away.

MS VILAKAZI: Okay. And then one last question. What happened after you shot in the air?

MR MOELE: I mentioned that when we arrived at the gate our comrades were not there with a car according to the plan, so we had to run away on our feet. That's what we did. We ran away, ran through the fence and myself and Thobile split along the way. I don't know where was he arrested, but I was arrested in the lift, as I've mentioned earlier on.

MS VILAKAZI: I have no further questions, Mr Chairman.

CHAIRPERSON: Thank you, Ms Vilakazi. Ms Lockhat, any questions?

CROSS-EXAMINATION BY MS LOCKHAT: Thank you, Chairperson.

You said that you specifically needed R10 000, why specifically the R10 000?

MR MOELE: The commander mentioned that there were eight AK47s and handgrenades and that person was selling all of them at a fixed price of R10 000. He would not sell one AK or one grenade, he wanted R10 000 for all of them.

MS LOCKHAT: Did you know of the contact person that you were going to get the arms from?

MR MOELE: Only the commander knew him.

MS LOCKHAT: At what stage did you tell Mametse, your commander, about this armed robbery, how long after the incident?

MR MOELE: That was after I was arrested. I was arrested on the same day, on the second day they gave me an opportunity to call home.

MS LOCKHAT: Would you have informed your commander of the incident if you had not been arrested?

MR MOELE: Yes, I was actually heading for him.

MS LOCKHAT: You said you had other comrades from Duduza area, who was their commander in Duduza?

MR MOELE: Their commander was known to us as BA. These are combat names. I only know him as BA.

MS LOCKHAT: And did the comrades of Duduza inform their commander that they were going to participate in this armed robbery?

MR MOELE: I do not know whether they reported, the told him, but they never told me they will tell him. I instructed them as their immediate senior at that time to assist us. I don't know whether they informed their commander.

MS LOCKHAT: Do you think that Mr Mametse would have authorised this act of yours, seeing that it was not in the policy of the ANC?

MR MOELE: Because of the pressure at that time and the fact that if we don't get hold of those firearms, they would end up in the hands of the people and those people would use those firearms against us. So he would not have a problem with that.

MS LOCKHAT: So you're saying he would definitely have authorised this act?

MR MOELE: I'm saying I don't foresee that he would have any problems.

MS LOCKHAT: How long were you a member of this SDU group?

MR MOELE: I came back from exile in 1992, and I was immediately instructed to be 2IC of Commander Mametse. I think I'd been nine months already.

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

CHAIRPERSON: Thank you, Ms Lockhat

CHAIRPERSON: Mr Moele, we're heard a number of Self Defence Unit applications in respect of the Katorus area, so I would just like to ask you a little bit of the general background that came to our knowledge during those hearings, specifically in regard to the relationship between the ANC MK, Umkhonto weSizwe and the Self Defence Units.

We understood that what happened was that the MK had instructed their members to assist the community in setting up structures to defend the community. In other words, it was a community initiative. Would that have been a correct understanding of how the SDU structures were put together?

MR MOELE: That is correct, you have it right.

CHAIRPERSON: And that the sum total of the assistance that was given by MK, was to make MK members available who could train members of the community who would become SDU members.

MR MOELE: Yes, that's how I also know it.

CHAIRPERSON: There was never a situation where MK supplied weapons for example, to SDUs, the initiative was left to the community.

MR MOELE: The trained cadres of MK, had they been given one AK47 each, that would still be okay, but then they would also be required to get more weapons, so that they can train the members and use those against any attack.

CHAIRPERSON: So the effect of this arrangement was that the community had to find a way themselves to acquire the arms for the defence and the protection of the community, they had to find their own arms.

MR MOELE: Yes, the community was supposed to take the responsibility of obtaining weapons and volunteer trustworthy people from the community, to be trained by the MK soldiers who resided among the very same community. I got involved because I resided in Vosloorus. I'm not from outside.

CHAIRPERSON: Yes. And do I understand this correctly, this initiative, this robbery was part of the Self Defence activity, it was not an MK, ANC/MK activity, it was a Self Defence Unit activity? In other words, a community activity.

MR MOELE: That is correct.

CHAIRPERSON: And it was part of that - and we've heard a lot of evidence about the raising of funds by the community to buy these arms from Mozambique and wherever they went to buy these things. So would this have been part of that fund-raising activity, to get the money for the arms?

MR MOELE: Yes, that is part of that. But there were situations in the process of gathering money, other families were needy and they would not donate anything and it would appear as if they did not want to assist. But we wanted money at this time because of the pressure that these firearms might end up in wrong hands and they would be used against the community.

CHAIRPERSON: And you were residing at that time in which one of the townships?

MR MOELE: Vosloorus. Even at present I reside at Vosloorus.

CHAIRPERSON: Okay. Are there any other questions from the Panel?

ADV DE JAGER: Who were the members of the SDU Committee in Katorus? Who was the Chairperson, who was the Secretary?

MR MOELE: There was a political leadership and what I would call a paramilitary leadership. I was in the paramilitary committee, because I was the Deputy Commander. I know the Chairperson of the township Defence Force, that is the Force that included all the political parties, they youth organisations, his name was ...(intervention)

ADV DE JAGER: I'm only asking you for the names of the Chairperson and the Secretary for instance, of the SDU in Katorus.

MR MOELE: The Chairperson of the SDU, I know him as Commander Sofasonke.

ADV DE JAGER: Yes. And isn't it so that the political leadership that the paramilitary leadership was subject to the political leadership? They couldn't go against the orders of the political leadership.

MR MOELE: That was the situation.

ADV DE JAGER: Did you ever consult the political leadership in Katorus about this robbery?

MR MOELE: As the Deputy Commander I did not have the opportunity to consult the political leadership, my commander was supposed to do that. He is the person who also went for the meetings.

ADV DE JAGER: I see you refer here to the Peace Accord and to the DF Malan Accord, so you've been aware of all these accords?

MR MOELE: Yes, I understand them.

ADV DE JAGER: And you're then surely aware that in July 1993, negotiations were carried on here at Kempton Park, after the Peace Accord and that offensive strategies were disbanded at that stage, you wouldn't attack people at that stage, in accordance with the Peace Accord.

MR MOELE: Yes, I know of that. We were not attacking people here, we wanted money to get firearms to protect ourselves. And the Peace Accord did not prevent the people under attack to protect themselves, they were saying people have the right to protect themselves if attacked, but they did not provide firearms. We did not have firearms, licensed firearms and the people who were attacking the community had such arms.

ADV DE JAGER: Another thing. You were asked whether you needed exactly R10 000 to buy these weapons and you said "yes, that was for eight AK47s", and how many handgrenades?

MR MOELE: I am not sure, but there could have been six. I am just estimating. I was more interested on the AK47s.

ADV DE JAGER: So were those the weapons that would have been bought with the R10 000?

MR MOELE: Yes.

ADV DE JAGER: There weren't any other guns and pistols or that kind of thing?

MR MOELE: I only knew of the AK47s and the grenades. We would have bought it from anybody who was selling it.

ADV DE JAGER: Because in your application, you've signed a document and in paragraph 3 you say:

So that was not only for the weapons that you've told us about now.

MR MOELE: An AK47 is a sub-machine gun. If the money had exceeded the ...(end of tape 4A)

CHAIRPERSON: In any event, the figure you got from Mametse? Mametse gave you that figure.

MR MOELE: Mametse told us that the amount needed for the guns was R10 000.

CHAIRPERSON: Yes. Have you got any re-examination, Mr Smit?

MR SMIT: No re-examination, thank you, Mr Chairman.

CHAIRPERSON: Yes, Mr Moele, you're excused. We assume that is your case in respect of this incident.

MR SMIT: Yes.

CHAIRPERSON: Ms Vilakazi, have you got any witnesses?

MS VILAKAZI: Thank you, Mr Chair. I have Mr van der Walt, who is a victim. May I put it on record that Mr van der Walt is not opposed to the application, but e has suffered some emotional ...(indistinct) as a result of the attack and he wants to take the Committee through the experience that he went through. As I call Mr van der Walt, may I get directions from yourself, Mr Chairman, as to whether it will be necessary to lead Mr van der Walt with regard to the robbery itself.

CHAIRPERSON: Well if he's not opposing and he really just wants to tell us how he feels about it, perhaps you could only ...(indistinct) necessary.

MS VILAKAZI: As it pleases you.

CHAIRPERSON: Is Mr van der Walt available? In what language will he testify?

MNR VAN DER WALT: Afrikaans.

VOORSITTER: Wil u Afrikaans praat?

MNR VAN DER WALT: Ja.

VOORSITTER: Goed.

GERT ABRAHAM VAN DER WALT: (sweer onder eed)

CHAIRPERSON: Miss Vilakazi?

MS VILAKAZI: As Your Worship pleases. I will lead him in English.

CHAIRPERSON: Yes.

EXAMINATION BY MS VILAKAZI: Mr van der Walt, you were employed by Transvaal Galvanising in 1993, is that correct?

MNR VAN DER WALT: Dis korrek.

MS VILAKAZI: What was your position?

MR VAN DER WALT: A security officer.

MS VILAKAZI: You were there when the armed robbery took place, is that correct?

MNR VAN DER WALT: Dis korrek.

MS VILAKAZI: Were you armed at that particular time?

MR VAN DER WALT: Yes, it was quarter past three in the afternoon.

MS VILAKAZI: Did you have any weapons with you?

MR VAN DER WALT: No.

MS VILAKAZI: Are you able to identify the people who took part in the robbery?

MR VAN DER WALT: At this stage not because the problem is it was such a long time back and it was so fast, I cannot remember the people.

MS VILAKAZI: But can you remember what you went through?

MR VAN DER WALT: Yes. That was - I take the ...(indistinct) in connection with the money and the completely was a robber story that will happen.

CHAIRPERSON: ...(inaudible)

MNR VAN DER WALT: Edelagbare, dit het gebeur omtrent kwart oor drie die middag.

VOORSITTER: Ja.

MNR VAN DER WALT: En ons was van plan om die salarisse op te maak vir die werkers, en op die kop twintig oor vier toe laat hulle my weet van die hek af, ek moet opkom kantoor toe, ek moet die geld kom vat.

Op pad na die kantoor toe het Antonie vir my gesê hy kannie saam met my beweeg, hy het iemand in die galvanising departement daarso om wys te maak op die masjiene en ek moet alleen gaan kantoor toe.

Toe beweeg ek alleen kantoor toe en ek het in die kantoor gekom en Georgio was daar gewees, dit was my assistent voorman, en hy het vir my gesê "Gerrie, vat die kas", maar dit was nie 'n kas, 'n staal kas nie, dit was 'n boks. Dit lyk amper soos 'n skoene boks, maar dit was sommer so 'n "plain" boks. En ons het hom geneem en ek het met hom uitgestap en ek was - die omgewing van die kantoor af na die galvanising plek to is 400m. Die helfte van die omgewing toe kom Antonie terug na my toe, toe sê hy vir my "Gerrie, hoe lyk dit, is jy reg?" Toe sê ek "Nee, ek is "alright" moenie "worry" nie, ek gaan op pad na die uitbetaal kantoor toe. Nou die uitbetaal kantoor is van my afdeling waar ek nou Antonie gelos het, tot daar, is 'n ander 200m verder.

Ek het beweeg op na die galvanising plek toe. Terwyl ek op gebeweeg het, het ek met die mense gepraat wat aan die ysters werk, wat hulle gebegin "paint" het en so aan. Toe sê hulle vir my "Wanneer is die betaal punt uit?" Toe sê ek "Nee, julle moet net so 'n bietjie wag, ons gaan eers die geld in volgorde sit soos hulle vanne is. Dit was in so 'n - so het dit gebeur en ek het opgestap na die galvanising plek toe. By die oonde, daar was 'n pot, 'n bak, vol "acid" water waar ons die staal laat insak om hom te laat galvanising voor hy deur die oonde gaan.

Toe ek by die pot kom toe vind ek uit hier is verkeerde mense binne in die gebou. En hulle het oor die muur gespring in die agterkant van die bebou, by die kantoor waar ons ons lêers en goed hou en ook die teekamers van die personeel. En hulle't opgehardloop, een het na my kant toe, direk in my gesig in gehardloop en hy't die vuurwapen teen my kop gedruk. Ek het vir hom gesê "Nou wat is jou plan nou, wil jy - jy speel mos nou, daai ding is mos 'n speelding", en ek het 'n vermoede gehad dis een van die werkers, en ek sê vir hom "Maar jy's mal man, wat wil jy nou maak?", en hy skree of my "Gee die geld of ek skiet jou dood". Ek sê toe vir hom "Maar wel, "alright", as jy daar ...(onduidelike)" en op daardie oomblik toe vind ek uit dat dit nie 'n speelding is nie en ek struikel, ek mirafeer myself teen die muur en teen die galvanising pot om my balans te hou, want die een stamp my kort kort terug en dan wil hy die boks gryp, maar ek hou die boks vas. En toe ek nou mooi op my voete kom toe kom Georgio so aangeloop en hy kyk toe so en hy sê vir my "Gerrie, gou die geld, julle gaan jou doodskiet". En met die slag toe ek die geld vir die sekere persoon gooi wat met my baklei, toe val die geld en met die geld toe hy val toe's daar 'n tweede persoon en hy gryp die boks to en hy hardloop toe uit.

Nou aan die buitekant was daar 'n ander een wat vir my gewag het, wat ingewag het vir die sekere persoon wat die geld gegryp het en hulle het dit onder mekaar so uitge"pass". En toe hulle by die tweede voertuig kom - ek het afmerkings gemaak hier op 'n papier, hoe dit gebeur het, toe gaan die skoot af en die derde persoon kom toe aangehardloop na hulle toe en ek vind toe uit, maar dis nie net drie nie, hulle is vier en die een hardloop toe vooruit na die hek se kant toe en die ander drie volg hulle toe.

Toe hulle by die hek uithardloop toe skree ek vir Georgio "Bel die SAP, hulle het ons beroof." Met die slag toe ek skree SAP, toe trek hulle twee skote af. Die een skoot trek teen die bakkie, die voertuig vas, wat teen - in die oop perseel staan, slat dit hierbo teen die "bonnet" vas en die ander een trek in die lug in. En met die slag toe dit nou afgegaan, toe - al die werkers hardloop toe weg en ek staan toe alleen.

En Georgio kom toe na my toe gehardloop en hy sê "Wat is die polisie se telefoon nommer?" Ek sê vir hom "Die "Flying Squad", 10111, skakel hulle". Maar met die oomblik toe ons hulle skakel toe is die speurders in die omgewing van die fabriek omgewing, toe het hulle al inligting gekry van sekere mense wat gaan glo fabrieke beroof. Toe sê ek vir hom - toe hulle aangejaag kom na ons toe toe sê ek "Maar hoor hierso, hulle't ons beroof", maar met die slag toe kom Jenaro, ons ander bestuurder van Emag(?), kom hy ook toe ingery met sy Mercedes Benz. Ek sê toe vir hom "Jenaro, he robbed us". En Antonie kom na Jenaro toe en hulle praat in Italiaanse taal en hulle praat met mekaar en hulle verduidelik aan mekaar. En toe kom die speurders ook en hulle vra toe wat het gebeur en hulle sê toe, ons verduidelik to aan hulle. En hulle sê nee, hulle't die mense gesien ophardloop in die pad in.

En toe is hulle agter hulle aan en hulle het die mense gearresteer. Party van hulle het oor die "fence" geklim by Tiemie(?) Firma ...(onduidelik), die ander klomp het hulle gekry in 'n sloot nie ver daarvandaan. In 'n "sewerage plant" het hulle die geld ingedruk. En ons het begin te soek en te soek maar ons kon niks kry nie. En later van tyd toe kom die speurders terug toe sê hulle "Kom kyk hier waar is die geld".

Toe't ek en Jenaro gery en ons het die geld gaan haal uit to "sewerage plant" uit.

VOORSITTER: Het julle toe al die geld teruggekry?

MNR VAN DER WALT: Ons het - u Edelagbare, ja ons het teruggekry maar dit was baie beskadig, dit is heeltemal onbruikbaar.

VOORSITTER: U was nie beseer in die voorval nie?

MNR VAN DER WALT: Edelagbare nee, ek sal jou sê die Here was goed vir my gewees, hy't my bespaar in daardie oomblik toe dit gebeur het.

VOORSITTER: Goed. Goed, baie dankie.

Is there anything else, Ms Vilakazi?

MS VILAKAZI: Yes, Chairperson.

Mr van der Walt, in my consultation with you in the morning you told me about treatment that you had to undergo afterwards.

MNR VAN DER WALT: Ja.

MS VILAKAZI: Can you take the Committee through that.

MNR VAN DER WALT: Ag dit is min, dis ...(tussenbeide)

ADV DE JAGER: Het jy daarna sielkundige behandeling gekry?

MNR VAN DER WALT: Edelagbare, ja, ek het - die aand laat, jy weet omtrent so elfuur/twaalfuur, toe het dit terug in my geheue begin speel en ek het begin ruk en pluk jy weet, soos bewe of die bed en ek het begin baklei met die kussing en toe sê my vrou vir my "Jong, jy kannie so aangaan nie, ek moet jou na die dokter toe neem". En my broer - nie my broer nie, my swaar het gekom ...(tussenbeide)

ADV DE JAGER: Nee, maar die punt is jy het toe op die ou end na 'n dokter toe gegaan en hy het kalmeermiddels en so vir u gegee?

MNR VAN DER WALT: Dis reg ja, Edelagbare.

VOORSITTER: En u het heeltemal herstel van die voorval af?

MNR VAN DER WALT: Ja, dit het my - ek meen, hoe sê, ek is - deur die Here se genade het ek dan heeltemal herstel.

VOORSITTER: Ja, goed.

ADV BOSMAN: En u werk nog vir dieselfde maatskappy?

MNR VAN DER WALT: Agbare, nee, nee. Ek het toe twee jaar daarna het ek toe bedank.

ADV BOSMAN: Maar dis nie nou oor die voorval nie?

MNR VAN DER WALT: Nee, nee, nee, dit is my eie besluite want ek het gedink ek moet liewerste weggaan daar.

CHAIRPERSON: Ms Vilakazi?

MS VILAKAZI: No further questions, Chairperson.

CHAIRPERSON: Any questions?

MR SMIT: No questions, thank you, Mr Chairman.

CHAIRPERSON: Ms Lockhat?

MS LOCKHAT: No questions, thank you, Chairperson.

VOORSITTER: Thank you.

Mnr van der Walt, baie dankie, us is verskoon.

MNR VAN DER WALT: Baie dankie, Edelagbare.

CHAIRPERSON: Ms Vilakazi, is that all?

MS VILAKAZI: That will be all.

CHAIRPERSON: Alright. Ms Lockhat, I assume you don't have any evidence.

MS LOCKHAT: No. Thank you, Chairperson.

CHAIRPERSON: Can you just give us an indication, are both of you involved in the next incident as well?

MS VILAKAZI: Yes.

CHAIRPERSON: Alright, in that even then I think we're going to adjourn at this stage and we will carry on with the next incident and then you can address us at the end of all that, on both the matters.

MR SMIT: Both the matters. As it pleases.

MS VILAKAZI: As it pleases.

CHAIRPERSON: So we'll adjourn at this stage and we'll reconvene here tomorrow morning at nine thirty.

MS LOCKHAT: All rise.